2017-00218723-CU-OE

Jeanine Clasen vs. California Department of Education

Nature of Proceeding: Motion to Compel Forensic Inspection

Filed By: Weiner, Jennifer A.

Defendant California Department of Education’s (“CDE”) motion to compel inspection of Plaintiff’s personal computer and other electronic devices is denied.

On October 24, 2018, CDE served a notice of discovery and inspection on Plaintiff Jeanine Clasen’s personal laptop and portable storage devices. The notice indicated that the inspection would be conducted by Califorensics. CDE offered to expand the existing protective order to protect any confidential or privileged material from production. Plaintiff objected to the discovery and refused to allow the inspection.

“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.” (CCP § 2017.010.) CDE argues that it has the right to demand inspection of ESI pursuant to CCP § 2031.010(e). CDE then argues that Courts have allowed inspection of computers and devices where files have been deleted, where a computer has been forensically cleaned, or where there is a distrust permeating the litigation. CDE argues that compelling inspection of Plaintiff’s personal devices is appropriate because they “likely” contain relevant information from her use of the devices for matters related to her employment with CDE and she brought her personal computer to work. CDE also argues, without any citation to evidence, that Plaintiff’s production of documents to date contains evidence that she “improperly removed documents, communications and confidential materials from CDE.” (Mot. 3:27-28.) CDE also raises the identical argument that it raised in its unsuccessful motion for sanctions on today’s calendar, specifically, that Plaintiff has not to date produced ESI in a useable form and altered metadata. CDE argues that allowing a forensic specialist to collect documents and usable ESI.

Contrary to CDE’s apparent argument, it is not entitled to inspect personal devices as a matter of right. When alleged relevant evidence sought to be discovered impacts on a person’s constitutional right to privacy (Cal. Const., art. I, § 1), limited protections come into play for that person. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.) The protections extend to both a person’s personal and financial matters. (Ibid.) In ruling on discovery motions, the court must balance competing rights -the right of a litigant to discover relevant facts and the right of an individual to “maintain reasonable privacy.” (Id. at p. 657.) Shaffer v. Superior Court (1995)33 Cal.App.4th 993, 999. The balancing test standard compares the specifically identified privacy interests of the defendant with legitimate, competing and countervailing, nonprivacy interests asserted by the plaintiff. To that end, with respect to ESI, the Court shall “limit the frequency or extent of discovery of [ESI], even from a source that is reasonably accessible, if the court determines that any of the following conditions exists:…(2) The discovery sought is unreasonably cumulative or duplicative…(4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” (CCP § 2031.310(g).)

“There is little California case law regarding the discovery of electronically stored information under the [California Electronic Discovery] Act. Because of the similarity of California and federal discovery law, federal decisions have historically been considered persuasive contrary California decisions.” (Ellis v. Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 853, 862.)

As seen from the federal decisions cited by Plaintiff in the opposition, courts will not grant a motion for an inspection of an opposing party’s computer absent compelling circumstances. (Memry Corp. v. Kentucky Oil Technology, N.V. (N.D.Cal. Mar. 19, 2007) 2007 U.S.Dist.LEXIS 104031, *10.) It has been noted that courts have allowed independent experts to search an opponent’s computer equipment in “an extreme situation where data is likely to be destroyed or where computers have a special connection to the lawsuit.” (Id. at *9-10.) By contrast, “a mere desire to check that the opposition has been forthright in its discovery responses is not a good enough reason.” (Id.) Courts have been “loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.” ((Powers v. Thomas M. Cooley Law Sch. (W.D. Mich. Sept. 9, 2006) 2006 U.S.Dist.LEXIS 67706 *15.) “The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records and to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to the extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives in an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information.” (Id.)

Here, in the context of informational privacy, CDE has failed to demonstrate that an unfettered inspection of Plaintiff’s personal computer and personal devices is appropriate. The cases cited by CDE as support for its request involve facts that are not present here. For example, Playboy Enterprises, Inc. v. Welles (S.D. Cal. July 30, 1999) 60 F.Supp.2d 1050 involved a situation where there was evidence that the defendant deleted emails relevant to the case making it “impossible to produce information as a ‘document’.” (Id. at 1053.) Playboy noted that “[h]ad defendant printed any relevant e-mails…, such e-mails would have been produced as a ‘document.’ Plaintiff needs access to the hard drive of defendant’s computer only because defendant’s actions in deleting those e-mails made it currently impossible to produce the information as a ‘document’.” (Id.) The case of Simon Property Group L.P. v. MySimon, Inc. (S.D. Ind. 2000) 194 F.R.D. 639 also involved a situation where files had been deleted from a computer. Dawe et al. v. Corrections USA et al. (E.D.Cal. 2009) 263 F.R.D. 613 involved a situation where the information on the plaintiff’s computer related directly to the issues in the case and there was evidence of discovery misconduct by the party resisting discovery. Antioch Co. v. Scrapbook Borders, Inc. (D. Minn. 2002) 210 F.R.D 645, is similar. Dodge, Warren & Peters Inc. Servs., Inc. v. Riley (2003) 105 Cal.App.4th 1414 involved a situation where the defendants were alleged to have misappropriated the plaintiff’s files to start their own insurance brokerage firm and a court-appointed expert was permitted to copy hard drives to recover lost or deleted files. No such situation exists here.

It must be emphasized here that the instant motion is not a request to produce ESI, which Plaintiff has already done, but rather a request by CDE to perform an independent search of Plaintiff’s personal devices to essentially confirm that Plaintiff produced everything she was supposed to. Again, “[m]ere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” (John B. v. Goetz (6th Cir. 2008) 531 F.3d 448, 459-460.)

CDE argues that the unfettered access to Plaintiff’s computer and devices is justified because the devices “likely contain relevant information.” The speculative nature of this argument aside, this is entirely insufficient. As set forth above, CDE argues that Plaintiff’s production so far reveals that she “improperly removed documents, communications and confidential materials from CDE.” (Mot. 3:27-28.) CDE makes no showing in this regard whatsoever and the contention is purely speculative. Moreover, while CDE filed a cross-complaint it makes no allegation regarding this claimed improper removal of documents. CDE repeats its argument raised in its motion for terminating sanctions that Plaintiff has not to date produced ESI in a useable form and altered metadata. This argument was rejected in connection with the motion for sanctions and it is likewise rejected here. As set forth in the Court’s ruling on the motion for sanctions, the Court found that Plaintiff has complied with the Court’s discovery order. Thus, the basis factual predicate for the instant motion fails.

There is no evidence here that Plaintiff has engaged in any discovery misconduct in connection with any production of ESI or any other information and thus there is no basis to allow CDE unfettered access to her personal devices. There is no basis to compel a forensic examination of an opponent’s computers absent “specific, concrete evidence of concealment or destruction of evidence” because “just as a party would not be entitled to inspect personally an opposing party’s offices and filing cabinets simply because it believed that discovery misconduct had occurred, the accusations [defendant] makes here do not justify the remedy it seeks.” (Advante International Corp. v. Mintel Learning Technology (N.D. Cal. June 29, 2006) 2006 U.S.Dist.LEXIS 45859 at *2.)

The motion is denied as CDE has failed to demonstrate any basis for a search of Plaintiff’s personal devices.

In addition for failing to set forth any basis for the search, CDE entirely fails to discuss the obvious privilege issues raised by the request for access to Plaintiff’s devices. To that end, as seen by Plaintiff’s opposition, Plaintiff’s computer contains attorney-client privileged information regarding legal services that she provides to her husband for use in his estate law practice, information regarding legal advice that she has provided to friends and family, information related to legal work that she provided to family friends for their special needs child, communications between Plaintiff and her attorneys in this matter, and personal and private confidential information regarding Plaintiff and her husband relating to bank records, credit card accounts and other financial information of their own and Plaintiff’s parents. (Clasen Decl. ¶ 20.) CDE discusses none of this and simply argues that it offers to expand the existing protective order. CDE fails to offer any protocols to restrict Califorensics’ access to Plaintiff’s devices. The proposal that Plaintiff can review the documents and formulate a privilege log after the forensic expert has inspected the devices is not acceptable. CDE argues in reply that its forensic specialist will simply collect the data without

actually viewing the documents, and will not search and review them unless requested. However, there is no declaration from the forensic specialist showing that this is true and the specialist would still be getting access to devices with privileged information. “[A] court may not order disclosure of a communication claimed to be privileged to allow a ruling on the claim of privilege.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739.) “Concern that a party may be able to prevent discovery of relevant information therefore provides no justification for inferring an exception to Evidence Code section 915.” (Id.)

The motion is denied in its entirety.

No sanctions were requested and none are awarded.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.

Item 7 2017-00218723-CU-OE

Jeanine Clasen vs. California Department of Education

Nature of Proceeding: Motion for Terminating Sanctions

Filed By: Weiner, Jennifer A.

Defendant California Department of Education’s (“CDE”) motion for evidentiary, terminating and monetary sanctions is denied.

CDE’s request for judicial notice is granted.

In this employment action Plaintiff, an attorney, alleges causes of action against CDE and others for gender discrimination, harassment and retaliation arising from her perceived entitlement to a promotion to an Attorney IV position. She also alleges whistleblower retaliation and fraud.

On October 16, 2018, the Court entered an order granting CDE’s motion to compel further responses to its request for production of documents. Plaintiff was ordered to provide further responses without objections that identify the documents that are responsive to each category and to produce the responsive documents responsive to each category for requests nos. 1-96. The responses were to be provided by November 1, 2018. No sanctions were imposed as Plaintiff did not oppose the substance of the motion.

CDE now argues that Plaintiff failed to comply with the subject order, because the ESI that has been produced is not in a usable format which it contends makes it “impossible” to evaluate her document production and responses. On this basis, CDE seeks the drastic remedy or terminating and/or evidentiary sanctions. CDE requests a terminating sanction in the form of a stay of the action until Plaintiff fully complies with the October 16, 2018 order or an evidentiary sanction prohibiting Plaintiff from introducing the ESI into evidence. It also seeks monetary sanctions.

In its motion, CDE details the instructions for ESI production set forth in the underlying requests for production and then argues that the document production did not include metadata in a load file, did not include specific identifying information on the

documents, that part of the production was not searchable, some documents are improperly bates labeled (which apparently only causes some delay in review), failed to produce a complete load file and used a bates label in her last production that changed the bates digits from 7 digits to 6 digits making it impossible to run the ESI through an e-discovery program.

Parenthetically, “metadata,” or “data about data,” is data that provides information about other data, “hidden” or “embedded” information that is stored in electronically generated materials, but which is not visible when a document or other materials are printed. The Sedona Conference defines metadata generally as follows:

Data typically stored electronically that describes characteristics of ESI

[electronically stored information], found in different places in different

forms. Can be supplied by applications, users or the file system. Metadata can
describe how, when, and by whom ESI was collected, created, accessed,
modified, and how it is formatted. Can be altered intentionally or inadvertently.
Certain metadata can be extracted when native files are processed for litigation.
Some metadata, such as file dates and sizes, can easily be seen by users; other

metadata can be hidden or embedded and unavailable to computer users who are
not technically adept. Metadata is generally not reproduced in full form when a
document is printed to paper or electronic image.

The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management 34 (Sherry B. Harris et al. eds., 3rd ed. 2010). [The Sedona Conference provides additional definitions for specific types of metadata, including Application Metadata, Document Metadata, Email Metadata, Embedded Metadata, File System Metadata, User-Added Metadata, and Vendor-Added Metadata.]

Here, the Court finds that the drastic remedies of terminating and evidentiary sanctions clearly are not appropriate at this time. “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” ( Caryl Richards, Inc. v. Superior Court (1961) 188 Cal. App. 2d 300, 304.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 793) The discovery sanction cannot put the propounding party in a better position than they would have been in if they had received the discovery. (Puritan Insurance Co. v Superior Court (1985) 171 Cal. App.3d 877, 884.)

Here, Plaintiff served responses to CDE’s requests for production nos. 1-96 which identified the documents by Bates-Stamp numbers responsive to each of the 96 categories. In addition, Plaintiff initially produced 4,959 documents for a total of

16,009 printed pages and then in a subsequent production produced 1678 “native” documents from Plaintiff’s personal computer along with an electronic spreadsheet index. (LaVoie Decl. ¶ 18.) This is not a situation where Plaintiff has made no attempt to comply with a Court order. To the contrary, Plaintiff was ordered to produce further responses without objections and to identify the documents responsive to each category and Plaintiff fully complied with the Court order in that regard. Moreover, as seen from the declarations, Plaintiff has spent a substantial amount of time working to comply with CDE’s discovery requests and the Court’s order. (Clasen Decl. ¶ 10.)

The issue here is not that Plaintiff failed to provide responses without objections or that the responses failed to identify the documents responsive to each category as required by the Court’s October 16, 2018 order, but instead that CDE is unhappy with the format of the documents produced because it claims that the ESI is not in a usable format. The Court must note that the arguments with respect to the purported inability to utilize the ESI are supported only by a declaration from CDE’s counsel, and not expert declaration. (Weiner Decl. ¶¶ 4, 9, 10.) By contrast, in opposition, Plaintiff has submitted a declaration from a Digital Project Analyst at Capitol Digital Document Solutions, LLC, a litigation and digital forensics firm. (Peregoy Decl. ¶ 1.) Mr. Peregoy declares that his work involves e-discovery services, including creating load files for review platforms. (Id.) Mr. Peregoy declares that he scanned the first batch of documents provided by Plaintiff in September 2018 and created PDF files which were bates-numbered and processed with OCR to make them searchable. The documents were bates numbered CLASEN-0001148 through CLASEN-0010502. (Id. ¶ 3.)

While CDE complains that Plaintiff did not provide a “load file” for that initial production even though this form of production for the ESI was specified in the requests, Plaintiff indicates that she was not even aware that CDE wanted a load file for all of the documents produced, as that issue was not discussed in any meet and confer efforts. A “load file”, as commonly understood, is a copy of start-stop information in a record and any metadata that must be produced with ESI. The Sedona Conference Glossary at 31 defines “load file” as a file that relates to a set of scanned images or electronically processed files, and indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends. A load file may also contain data relevant to the individual documents, such as selected metadata, coded data, and extracted text. Load files should be obtained and provided in prearranged or standardized formats to ensure transfer of accurate and usable images and data.

In any event, Plaintiff has now requested Capitol Digital to create a load file for all of the 16,009 pages of printed documents. (LaVoie Decl. ¶ 33.) The Court would further point out that the October 16, 2018 order did not specify the form in which Plaintiff was required to produce any ESI . To that end, “[a] party need not produce the same electronically stored information in more than one form.” (CCP § 2031.280(e).) The Court is aware that the original requests which were the subject of the motion to compel that was granted did specify that the ESI be produced in a load file. However, the failure to initially produce the information in that specific format does not justify the drastic sanctions sought. Indeed, as explained in the next paragraph, Plaintiff’s expert declared that the form of the ESI produced to date was in a manner which would function in the same way as a load file, and again, Plaintiff has requested a load file for all of the documents.

While CDE complains that Plaintiff did not provide metadata as requested with respect to either the initial production or the second production, as discussed above, Plaintiff is now producing a load file for all of the documents. Further, as it related to the second production, Mr. Peregoy received a flash drive containing native electronic documents and processed them to PDF, bates numbered them and processed with OCR to make them searchable. [It bears noting that a file that is in “native format” has been saved in the format designated by the original application used to create it.] He also provided a spreadsheet in Microsoft Excel format containing the metadata of the native documents. The pages were numbered CLASEN-014230 through CLASEN-015908. (Id. ¶ 4.) Mr. Peregory declares that the excel spreadsheet can easily be re-saved as

Comma Separated Values which would facilitate its use as a load file which can be done with minimal reformatting or additional work and would function in the same way as a load file for a review platform. (Id. ¶ 5.) He declares that review platforms such as Relativity and Concordance are able to import load files in a variety of formats, including Comma Separated Values. (Id. ¶ 6.)

CDE then complains that the subject requests required that the documents be OCR’d or text searchable and that certain “sections” of the first document production were identified as non-searchable. However, CDE fails entirely to even identify which sections were non-searchable. As seen from the opposition, Plaintiff’s counsel informed CDE’s counsel that if there were certain documents that were identified as non-searchable, those pages could just be scanned again or that an “enhance scans” tool in Adobe Pro could be used. (LaVoie Decl. ¶ 28, Exh. 14.) Plaintiff’s counsel indicated that even if CDE’s counsel was still having problems then counsel could provide the specific sections of the pages believed to be unsearchable and Plaintiff’s counsel would try and remedy the situation. (Id.) CDE’s counsel never followed up with Plaintiff’s counsel on this issue and this certainly cannot form the basis of any sanctions award.

CDE also complains that Plaintiff incorrectly “named the files after the bates number, the document itself is not bates numbered…” CDE fails to expound upon this point other than to say that “[t]here is no way of referencing the bates number unless the email is closed, causing additional time to review the document.” In the meet and confer efforts Plaintiff’s counsel indicated that these comments were confusing and that their data professionals informed them that you cannot [bates] stamp a native document without altering the data. (LaVoie Decl. ¶ 28, Exh. 14.) This Court is equally confused as to CDE’s complaint. Again, CDE’s counsel did not respond to Plaintiff’s specific comments. The fact that the manner of production may have caused some unspecified additional review time is no basis for sanctions.

CDE then appears to claim that Plaintiff altered the metadata with respect to the native documents produced from Plaintiff’s personal computer. To that end CDE argues that the files produced have changed metadata because the date created on the document looks like it is 11/12/2018 rather than the actual date an email or document was created. But as seen from the opposition, this is incorrect or disingenuous. The documents were produced from Plaintiff’s personal computer and the metadata therefore shows the date the documents were saved on Plaintiff’s personal computer but do not show the date they were created by Plaintiff on her CDE work computer. (Clasen Decl. ¶¶ 16-18; LaVoie Decl. ¶¶ 24, 28.) To this point, Plaintiff no longer has access to her CDE work computer as she has been placed on administrative leave and thus cannot produce ESI that shows an original created date. To the extent that CDE wishes to determine the original created date of any document produced by Plaintiff, it need only look at Plaintiff’s work computer in CDE’s possession. CDE’s counsel’s statement that Plaintiff’s copying ESI from her personal computer to a thumbdrive to provide to a third party vendor likely destroyed metadata is purely speculative and invective. Plaintiff’s counsel compared the metadata in the “native” file as kept on Plaintiff’s personal computer with the information copied to the flash drive to ensure its integrity. (LaVoie Decl. ¶ 23.)

CDE next complains that the total digit count of the bates numbering went from seven digits in the first document production to six digits in the second production. This is no basis for sanctions. Mr. Peregoy declares that he is now aware that the initial

production had a 7 digit bates number and that the second document production had a 6 digit bates number. He declares that this does not prevent the review of the documents in a review platform. (Peregoy ¶ 7.) He declares that the fact that they were separate productions with volume identifiers allows them to be reviewed in a review platform. Next he declares that adjustments to a review platform can be quickly made to account for the numbering and in any event the discrepancy does not prevent review of the documents. (Id.)

CDE argues that ESI in a proper form is relevant so it can determine if Plaintiff breached CDE policy by removing confidential and privileged material from its servers. But while CDE has filed a cross-complaint in this matter, it has not made any such allegation in the cross-complaint and in any event the claim is purely speculative.

The Court notes that CDE argues that Plaintiff has a history of discovery abuse and that it has had to file four motions. This is incorrect. There has been a motion by CDE for a protective order related to CDE’s documents and the underlying motion to compel further responses to request for production. The other two discovery motions are the instant motion, which is being denied, and the concurrent motion on today’s calendar whereby CDE is seeking to compel Plaintiff to produce her personal computer and cell phone for inspection. This is far from an history of abuse of discovery and Plaintiff has not been sanctioned for any discovery abuse in this matter to date.

In short, none of the above conduct justifies the imposition of sanctions, much less the drastic imposition of terminating or evidentiary sanctions. Plaintiff’s opposition demonstrates that she has complied with the Court’s order requiring further written responses to the subject requests. By way of the instant motion CDE has at most identified some potential issues with respect to the production of documents that it either failed to fully articulate, were not borne out by the motion or which CDE failed to properly meet and confer upon. CDE has not been denied discovery and has failed to show that it will be impaired in any way in its defense against any portion of Plaintiff’s claims. CDE has failed to demonstrate any non-compliance with this Court’s October 16, 2018 order, much less any discovery abuse which would warrant the imposition of terminating or evidentiary sanctions. By the same token, there is no basis for monetary sanctions. The requested sanctions would be punitive and would place CDE in a better position.

As a result, CDE’s motion for sanctions is denied in its entirety.

Plaintiff’s request for sanctions in opposition is also denied. While the Court considered the request, it concludes that sanctions would be unjust under the circumstances.

Given the nature of the discovery disputes between the parties, the Court encourages the parties to consider stipulating to the appointment of a discovery referee and presenting such stipulation to the Court. In the event the parties do not stipulate to the appointment of a discovery referee, the Court may consider appointing a referee on its own motion pursuant to CCP § 639(a)(5) to address all future discovery disputes.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.