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Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 1 of 10
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
______________________________/
PLAINTIFF VIRGINIA GIUFFRE’S REDACTED REPLY IN SUPPORT OF
MOTION FOR FORENSIC EXAMINATION
BOIES, SCHILLER & FLEXNER LLP
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 2 of 10
Plaintiff Virginia L. Giuffre, by and through her undersigned counsel, respectfully
submits this this Reply Motion In Support of Plaintiff’s Motion for Forensic Examination, and in
support thereof, states as follows.
I. INTRODUCTION
Fed. R. Civ. P. 26(f)(3)(C) requires parties to have a plan for the “disclosure, discovery or
preservation of electronically stored information, including the form or forms in which it should
be produced.” Pursuant to that Rule, parties have an obligation to be transparent about their
electronically stored information (ESI) preservation, collection, and production procedures, and
an obligation to attempt to mutually agree to such procedures. See Stinson v. City of New York,
No. 10 CIV. 4228 RWS, 2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.) (ordering
that “the parties shall meet and confer in order to set a[n electronic] search protocol”). A case
need not be designated “complex” for Fed. R. Civ. P. 26(f)(3)(C) to apply. To the contrary, Fed.
R. Civ. P. 26(f)(3)(C) applies with equal force to all federal civil cases, regardless of the subject
matter.
In addition to the requirements stated plainly in Fed. R. Civ. P. 26, and in addition to case
law from the this Court and others courts within the Southern District of New York, various
other instructive authorities emphasize the need for disclosure and agreement concerning ESI
preservation, collection, and production protocols among the parties. For example, the Sedona
Principles for Electronic Document Production, Second Edition, 2007, at page ii states: “Parties
should confer early in discovery regarding the preservation and production of electronically
stored information . . . and seek to agree on the scope of each party’s rights and responsibilities.”
Similarly, Standing Order M10-468, In re: Pilot Project Regarding Case Management
Techniques for Complex Civil Cases in the Southern District of New York, requires a Joint E-
1
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 3 of 10
Discovery Submission, requiring the parties to address, their (1) preservation obligations, (2)
search and review protocols, and (3) sources of ESI production. Under this model order, the
parties are required to discuss methods for search and review, including potential keyword
searches, date restrictions, and search backup files.
In short, a party’s responsibility to be forthcoming to reach agreed protocols concerning
ESI preservation, collection, and production is written into Rule 26, see Fed. R. Civ. P.
26(f)(3)(C), and it is echoed again through case law, treatises, conferences, and this District’s
Standing Order. Therefore, when Defendant refuses to confer about ESI protocols when asked
by Ms. Giuffre1, and instead states, “[w]e do not believe we have an obligation to describe for
your [sic] our document search methods,” it is prima facie evidence that Defendant is not
fulfilling her responsibilities under Fed. R. Civ. P. 26. See McCawley Decl. at Exhibit 1, April
11, 2016, Letter from Laura Menninger, counsel for Defendant.
Defendant’s refusal to disclose her ESI preservation and collection methods, coupled
with an insufficient production as described in the moving brief,2 constitutes good cause for a
forensic examination. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443, 449
(D. Conn. 2010) (“grant[ing] the Plaintiff's motion to compel forensic imaging to be performed
1
Ms. Giuffre, pursuant to this Court’s direction, served Defendant with a detailed agenda for a
meet and confer call on the topic of Defendant’s electronic discovery. See McCawley Decl. at
Exhibit 5, Correspondence from Sigrid McCawley. In addition, Ms. Giuffre also sent Defendant
a detailed ESI Protocol on March 10, 2016, which was rejected by the Defendant. See
McCawley Decl. at Exhibit 6.
2
It is notable that, prior to Ms. Giuffre filing the instant motion, Defendant had produced a mere
two documents in response to Ms. Giuffre’s First Request for Production. Now, Defendant’s
counsel states that Defendant “recently produced over 700 pages of documents,” yet, the bulk of
those pages
Even if counting such marginally responsive,
“filler” pages, Defendant’s production is still inadequate. For example,
and Defendant has stated she had a
practice of regularly deleting e-mails. Ms. Giuffre is entitled to seek and retrieve that electronic
data.
2
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 4 of 10
by a neutral court-appointed expert” under a confidentiality agreement). Such an examination is
particularly important because Ms. Maxwell has stated in her discovery responses that she has a
practice of deleting her e-mails. A forensic review is necessary to try to pull the deleted
materials that are relevant to this action. Accordingly, a forensic examination of Defendant’s
computers and email, conducted by a neutral expert agreed upon by the parties (or ordered by the
Court), is warranted.
II. ARGUMENT
A. Defendant Has Repeatedly Refused to Confer Regarding Their Document
Collection Process
After an unequivocal and flat refusal to discuss her ESI protocols (“ [w]e do not believe
we have an obligation to describe for your [sic] our document search methods”), Defendant now
acknowledges in her Response brief some willingness to do so.3 Yet, still, she has neither
disclosed to Ms. Giuffre what preservation, collection, and production methods she employed,
nor what methods she plans to employ regarding Ms. Giuffre’s Second Request for Production.
There have been no disclosures made whatsoever.
As detailed in the instant motion, Plaintiff’s counsel have expended considerable sums of
money and considerable time to ensure Ms. Giuffre’s compliance with her discovery obligations.
(DE 96 at 7.) Fact discovery closes in less than two months, and Defendant has yet to disclose
information about what was done to collect Defendant’s documents, stating only that her search
terms were “appropriately broad, but tailored.” Significantly, it appears that Defendant has
3
It should not have taken this motion practice for Defense counsel to acknowledge their
obligations under the Federal Rules of Civil Procedure. Regardless of Defendant’s refusal to
engage in ESI protocol discussions or agreements, Ms. Giuffre’ counsel employed a robust
collection, search, and review methodology, as detailed in her moving brief (DE 96). That said,
given that Defendant now seems willing to discuss her collection procedures, Ms. Giuffre will
make an additional attempt to confer with her before re-scheduling the hearing on this Motion, in
an effort to avoid any waste of judicial resources if the parties are able to narrow the issue for the
Court.
3
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 5 of 10
failed to produce all documents as directed by the Court in its Clarification Order and Ms.
Giuffre’s Second Request for Production of Documents is still outstanding. Ms. Giuffre’s
counsel is entitled to know what, if any, efforts are being employed by Defendant to comply with
discovery obligations.
Ms. Giuffre should not be required to rely on vague representations, in contravention of
the requirements under Fed. R. Civ. P. 26, particularly after she has disclosed her robust
preservation, collection, and production methods - methods that courts have found to be the best
practice to ensure compliance with Fed. R. Civ. P. 26. (DE 96 at 7-8, describing the protocol Ms.
Giuffre’s employed for her ESI.)
Even more troubling, Defendant admitted at her deposition that
.
See McCawley Decl. at Exhibit 7,
For example, this Court ordered Defendant to produce documents from 1999 - present.
See McCawley Decl. at Exhibit
8,
4
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 6 of 10
See McCawley Decl. at Exhibit 2, Message Pads.
Yet, remarkably, Defendant produced not a single email to or from Ms. Dubin, despite Ms.
Giuffre’s request for all documents relating to communications with her.
To fulfill her requirements under Fed. R. Civ. P. 26, Defendant would have needed to
employ the basic and commonly-employed steps of imaging her computer, collecting her email,
and running search terms over the ESI to find responsive documents. In other words, she should
have employed the same ESI procedures that Ms. Giuffre employed - a procedure endorsed by
the case law, by the Southern District of New York,4 the Sedona Conference,5 by e-discovery
treatises,6 and by common practice. See Stinson v. City of New York, No. 10 CIV. 4228 RWS,
2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.).
Since the Defendant still refuses to provide transparency into her document collection
efforts as of filing this Reply brief, a forensic examination of Defendant’s electronic data,
conducted by a neutral expert, is appropriate to ensure that she is not wrongfully withholding
discoverable material.
B. A Forensic Examination is Warranted To Determine Whether Defendant
Has Deleted or Withheld Responsive Communications
Defendant has admitted that she regularly deletes documents. See McCawley Decl. at
Exhibit 3, Defendant’s Responses and Objections at ¶ 16. Although Defendant suggests that she
stopped deleting emails once this litigation commenced, (see Def's Br. at 4), this representation is
4
M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil
Cases in the Southern District of New York
5
See the Sedona Principles for Electronic Document Production, Second Edition, 2007, at ii.
6
See, e.g., Handbk. Fed. Civ. Disc. & Disclosure § 13:5 (3d ed.).
5
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 7 of 10
insufficient to ensure that Defendant has complied with her obligations in this case for several
reasons.
First, Defendant was obligated to retain her electronic data when litigation was
reasonably anticipated. Defendant claims that she contemplated filing a lawsuit in 2011.
Accordingly, at a minimum, she should have been retaining her electronic data from that date
forward. Yet, Defendant admits that she was deleting emails after that point and up until this
litigation began. Additionally,
A forensic expert could possibly recover Defendant’s “deleted” e-mail and
could possibly identify when Defendant’s hard drive was wiped. Recovery of deleted material is
critical in this case because Defendant has admitted to a deletion practice.
Second, Defendant’s continued secrecy – she still has not disclosed to Ms. Giuffre her
preservation, collection, or production procedures – demonstrates the necessity of a forensic
review. Defendant’s continued refusal to disclose her methods, coupled with an insufficient
production as described above, constitutes good cause for a forensic examination conducted by a
neutral expert. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443, 449 (D.
Conn. 2010) (“grant[ing] the Plaintiff's motion to compel forensic imaging to be performed by a
neutral court-appointed expert” under a confidentiality agreement). Such an examination is
particularly important because Ms. Giuffre has outstanding document requests that were issued
in her Second Request for Production.
Finally, the forensic examination would be performed at a time and in a manner that
created no disruption for Defendant, so Defendant has no significant countervailing interests to
6
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 8 of 10
weigh against Ms. Giuffre’s compelling need for the information. Accordingly, a forensic
review of Defendant’s computers and email is warranted.
C. In the Alternative, Ms. Giuffre is Entitled to a Court Order Compelling
Defendant to Implement a Transparent and Reasonable Document
Collection Protocol that Includes the Imaging of Defendant’s Computer, the
Collection of her Email, and the Application of Robust, Mutually-Agreed
Upon Search Terms
Defendant has had multiple opportunities to negotiate a document production protocol or
describe her document collection efforts on her own accord or when asked by Ms. Giuffre. Thus
far, she has refused to do either. Defendant’s reliance on her March 14, 2016 Correspondence, as
evidence of her willingness to discuss her document collection efforts is disingenuous given that
her counsel: (1) flatly refused to discuss them when asked in a meet and confer, (2) stated that
any discussion of their collection procedures inappropriate, and (3) wrote that “[w]e do not
believe we have an obligation to describe for your [sic] our document search methods.” See
McCawley Decl. at Exhibit 1, April 11, 2016, Letter from Laura Menninger, counsel for
Defendant.
Accordingly, if the Court determines that a forensic examination is not warranted at this
stage, Ms. Giuffre respectfully requests that the Court direct the Defendant to (1) image her
computers , (2) collect her
email, (3) run robust, search terms provided by Ms. Giuffre (applicable to both Ms. Giuffre’s
First and Second Request for Production) over that collected ESI to identify documents
responsive to Ms. Giuffre’s Requests for Production, and (4) produce responsive documents to
Ms. Giuffre by May 16, 2016 (the day documents responsive to Ms. Giuffre’s Second Request
for Production are due under Fed. R. Civ. P. 34). Such a process would, at last, fulfill
Defendant’s requirements under the Federal Rules of Civil Procedure, be in accord with case law
and other authorities, and be in parity with Ms. Giuffre’s ESI protocol.
7
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 9 of 10
CONCLUSION
For the reasons set forth above and in Plaintiff’s Motion for Forensic Examination, Ms.
Giuffre requests that the Court order: (1) a neutral expert to conduct a forensic exam upon
Defendant’s computers and email prior to May 16, 2016, or, (2) in the alternative, order that
Defendant:
(a) image her computers;
(b) collect her email and text messages,
(c) run robust, mutually agreed-upon search terms (applicable for both Ms. Giuffre’s First
and Second Request for Production) over that collected ESI, and
(d) produce responsive documents to Ms. Giuffre by May 16, 2016.
Dated: April 25, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
8
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 10 of 10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 25, 2016, I electronically filed the foregoing
document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing
document is being served this day on the individuals identified below via transmission of Notices
of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey S. Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
Email: [email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
9
United States District Court
Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
______________________________/
PLAINTIFF VIRGINIA GIUFFRE’S REDACTED REPLY IN SUPPORT OF
MOTION FOR FORENSIC EXAMINATION
BOIES, SCHILLER & FLEXNER LLP
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 2 of 10
Plaintiff Virginia L. Giuffre, by and through her undersigned counsel, respectfully
submits this this Reply Motion In Support of Plaintiff’s Motion for Forensic Examination, and in
support thereof, states as follows.
I. INTRODUCTION
Fed. R. Civ. P. 26(f)(3)(C) requires parties to have a plan for the “disclosure, discovery or
preservation of electronically stored information, including the form or forms in which it should
be produced.” Pursuant to that Rule, parties have an obligation to be transparent about their
electronically stored information (ESI) preservation, collection, and production procedures, and
an obligation to attempt to mutually agree to such procedures. See Stinson v. City of New York,
No. 10 CIV. 4228 RWS, 2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.) (ordering
that “the parties shall meet and confer in order to set a[n electronic] search protocol”). A case
need not be designated “complex” for Fed. R. Civ. P. 26(f)(3)(C) to apply. To the contrary, Fed.
R. Civ. P. 26(f)(3)(C) applies with equal force to all federal civil cases, regardless of the subject
matter.
In addition to the requirements stated plainly in Fed. R. Civ. P. 26, and in addition to case
law from the this Court and others courts within the Southern District of New York, various
other instructive authorities emphasize the need for disclosure and agreement concerning ESI
preservation, collection, and production protocols among the parties. For example, the Sedona
Principles for Electronic Document Production, Second Edition, 2007, at page ii states: “Parties
should confer early in discovery regarding the preservation and production of electronically
stored information . . . and seek to agree on the scope of each party’s rights and responsibilities.”
Similarly, Standing Order M10-468, In re: Pilot Project Regarding Case Management
Techniques for Complex Civil Cases in the Southern District of New York, requires a Joint E-
1
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 3 of 10
Discovery Submission, requiring the parties to address, their (1) preservation obligations, (2)
search and review protocols, and (3) sources of ESI production. Under this model order, the
parties are required to discuss methods for search and review, including potential keyword
searches, date restrictions, and search backup files.
In short, a party’s responsibility to be forthcoming to reach agreed protocols concerning
ESI preservation, collection, and production is written into Rule 26, see Fed. R. Civ. P.
26(f)(3)(C), and it is echoed again through case law, treatises, conferences, and this District’s
Standing Order. Therefore, when Defendant refuses to confer about ESI protocols when asked
by Ms. Giuffre1, and instead states, “[w]e do not believe we have an obligation to describe for
your [sic] our document search methods,” it is prima facie evidence that Defendant is not
fulfilling her responsibilities under Fed. R. Civ. P. 26. See McCawley Decl. at Exhibit 1, April
11, 2016, Letter from Laura Menninger, counsel for Defendant.
Defendant’s refusal to disclose her ESI preservation and collection methods, coupled
with an insufficient production as described in the moving brief,2 constitutes good cause for a
forensic examination. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443, 449
(D. Conn. 2010) (“grant[ing] the Plaintiff's motion to compel forensic imaging to be performed
1
Ms. Giuffre, pursuant to this Court’s direction, served Defendant with a detailed agenda for a
meet and confer call on the topic of Defendant’s electronic discovery. See McCawley Decl. at
Exhibit 5, Correspondence from Sigrid McCawley. In addition, Ms. Giuffre also sent Defendant
a detailed ESI Protocol on March 10, 2016, which was rejected by the Defendant. See
McCawley Decl. at Exhibit 6.
2
It is notable that, prior to Ms. Giuffre filing the instant motion, Defendant had produced a mere
two documents in response to Ms. Giuffre’s First Request for Production. Now, Defendant’s
counsel states that Defendant “recently produced over 700 pages of documents,” yet, the bulk of
those pages
Even if counting such marginally responsive,
“filler” pages, Defendant’s production is still inadequate. For example,
and Defendant has stated she had a
practice of regularly deleting e-mails. Ms. Giuffre is entitled to seek and retrieve that electronic
data.
2
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 4 of 10
by a neutral court-appointed expert” under a confidentiality agreement). Such an examination is
particularly important because Ms. Maxwell has stated in her discovery responses that she has a
practice of deleting her e-mails. A forensic review is necessary to try to pull the deleted
materials that are relevant to this action. Accordingly, a forensic examination of Defendant’s
computers and email, conducted by a neutral expert agreed upon by the parties (or ordered by the
Court), is warranted.
II. ARGUMENT
A. Defendant Has Repeatedly Refused to Confer Regarding Their Document
Collection Process
After an unequivocal and flat refusal to discuss her ESI protocols (“ [w]e do not believe
we have an obligation to describe for your [sic] our document search methods”), Defendant now
acknowledges in her Response brief some willingness to do so.3 Yet, still, she has neither
disclosed to Ms. Giuffre what preservation, collection, and production methods she employed,
nor what methods she plans to employ regarding Ms. Giuffre’s Second Request for Production.
There have been no disclosures made whatsoever.
As detailed in the instant motion, Plaintiff’s counsel have expended considerable sums of
money and considerable time to ensure Ms. Giuffre’s compliance with her discovery obligations.
(DE 96 at 7.) Fact discovery closes in less than two months, and Defendant has yet to disclose
information about what was done to collect Defendant’s documents, stating only that her search
terms were “appropriately broad, but tailored.” Significantly, it appears that Defendant has
3
It should not have taken this motion practice for Defense counsel to acknowledge their
obligations under the Federal Rules of Civil Procedure. Regardless of Defendant’s refusal to
engage in ESI protocol discussions or agreements, Ms. Giuffre’ counsel employed a robust
collection, search, and review methodology, as detailed in her moving brief (DE 96). That said,
given that Defendant now seems willing to discuss her collection procedures, Ms. Giuffre will
make an additional attempt to confer with her before re-scheduling the hearing on this Motion, in
an effort to avoid any waste of judicial resources if the parties are able to narrow the issue for the
Court.
3
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 5 of 10
failed to produce all documents as directed by the Court in its Clarification Order and Ms.
Giuffre’s Second Request for Production of Documents is still outstanding. Ms. Giuffre’s
counsel is entitled to know what, if any, efforts are being employed by Defendant to comply with
discovery obligations.
Ms. Giuffre should not be required to rely on vague representations, in contravention of
the requirements under Fed. R. Civ. P. 26, particularly after she has disclosed her robust
preservation, collection, and production methods - methods that courts have found to be the best
practice to ensure compliance with Fed. R. Civ. P. 26. (DE 96 at 7-8, describing the protocol Ms.
Giuffre’s employed for her ESI.)
Even more troubling, Defendant admitted at her deposition that
.
See McCawley Decl. at Exhibit 7,
For example, this Court ordered Defendant to produce documents from 1999 - present.
See McCawley Decl. at Exhibit
8,
4
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 6 of 10
See McCawley Decl. at Exhibit 2, Message Pads.
Yet, remarkably, Defendant produced not a single email to or from Ms. Dubin, despite Ms.
Giuffre’s request for all documents relating to communications with her.
To fulfill her requirements under Fed. R. Civ. P. 26, Defendant would have needed to
employ the basic and commonly-employed steps of imaging her computer, collecting her email,
and running search terms over the ESI to find responsive documents. In other words, she should
have employed the same ESI procedures that Ms. Giuffre employed - a procedure endorsed by
the case law, by the Southern District of New York,4 the Sedona Conference,5 by e-discovery
treatises,6 and by common practice. See Stinson v. City of New York, No. 10 CIV. 4228 RWS,
2015 WL 4610422, at *7 (S.D.N.Y. July 23, 2015) (Sweet, J.).
Since the Defendant still refuses to provide transparency into her document collection
efforts as of filing this Reply brief, a forensic examination of Defendant’s electronic data,
conducted by a neutral expert, is appropriate to ensure that she is not wrongfully withholding
discoverable material.
B. A Forensic Examination is Warranted To Determine Whether Defendant
Has Deleted or Withheld Responsive Communications
Defendant has admitted that she regularly deletes documents. See McCawley Decl. at
Exhibit 3, Defendant’s Responses and Objections at ¶ 16. Although Defendant suggests that she
stopped deleting emails once this litigation commenced, (see Def's Br. at 4), this representation is
4
M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil
Cases in the Southern District of New York
5
See the Sedona Principles for Electronic Document Production, Second Edition, 2007, at ii.
6
See, e.g., Handbk. Fed. Civ. Disc. & Disclosure § 13:5 (3d ed.).
5
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 7 of 10
insufficient to ensure that Defendant has complied with her obligations in this case for several
reasons.
First, Defendant was obligated to retain her electronic data when litigation was
reasonably anticipated. Defendant claims that she contemplated filing a lawsuit in 2011.
Accordingly, at a minimum, she should have been retaining her electronic data from that date
forward. Yet, Defendant admits that she was deleting emails after that point and up until this
litigation began. Additionally,
A forensic expert could possibly recover Defendant’s “deleted” e-mail and
could possibly identify when Defendant’s hard drive was wiped. Recovery of deleted material is
critical in this case because Defendant has admitted to a deletion practice.
Second, Defendant’s continued secrecy – she still has not disclosed to Ms. Giuffre her
preservation, collection, or production procedures – demonstrates the necessity of a forensic
review. Defendant’s continued refusal to disclose her methods, coupled with an insufficient
production as described above, constitutes good cause for a forensic examination conducted by a
neutral expert. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443, 449 (D.
Conn. 2010) (“grant[ing] the Plaintiff's motion to compel forensic imaging to be performed by a
neutral court-appointed expert” under a confidentiality agreement). Such an examination is
particularly important because Ms. Giuffre has outstanding document requests that were issued
in her Second Request for Production.
Finally, the forensic examination would be performed at a time and in a manner that
created no disruption for Defendant, so Defendant has no significant countervailing interests to
6
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 8 of 10
weigh against Ms. Giuffre’s compelling need for the information. Accordingly, a forensic
review of Defendant’s computers and email is warranted.
C. In the Alternative, Ms. Giuffre is Entitled to a Court Order Compelling
Defendant to Implement a Transparent and Reasonable Document
Collection Protocol that Includes the Imaging of Defendant’s Computer, the
Collection of her Email, and the Application of Robust, Mutually-Agreed
Upon Search Terms
Defendant has had multiple opportunities to negotiate a document production protocol or
describe her document collection efforts on her own accord or when asked by Ms. Giuffre. Thus
far, she has refused to do either. Defendant’s reliance on her March 14, 2016 Correspondence, as
evidence of her willingness to discuss her document collection efforts is disingenuous given that
her counsel: (1) flatly refused to discuss them when asked in a meet and confer, (2) stated that
any discussion of their collection procedures inappropriate, and (3) wrote that “[w]e do not
believe we have an obligation to describe for your [sic] our document search methods.” See
McCawley Decl. at Exhibit 1, April 11, 2016, Letter from Laura Menninger, counsel for
Defendant.
Accordingly, if the Court determines that a forensic examination is not warranted at this
stage, Ms. Giuffre respectfully requests that the Court direct the Defendant to (1) image her
computers , (2) collect her
email, (3) run robust, search terms provided by Ms. Giuffre (applicable to both Ms. Giuffre’s
First and Second Request for Production) over that collected ESI to identify documents
responsive to Ms. Giuffre’s Requests for Production, and (4) produce responsive documents to
Ms. Giuffre by May 16, 2016 (the day documents responsive to Ms. Giuffre’s Second Request
for Production are due under Fed. R. Civ. P. 34). Such a process would, at last, fulfill
Defendant’s requirements under the Federal Rules of Civil Procedure, be in accord with case law
and other authorities, and be in parity with Ms. Giuffre’s ESI protocol.
7
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 9 of 10
CONCLUSION
For the reasons set forth above and in Plaintiff’s Motion for Forensic Examination, Ms.
Giuffre requests that the Court order: (1) a neutral expert to conduct a forensic exam upon
Defendant’s computers and email prior to May 16, 2016, or, (2) in the alternative, order that
Defendant:
(a) image her computers;
(b) collect her email and text messages,
(c) run robust, mutually agreed-upon search terms (applicable for both Ms. Giuffre’s First
and Second Request for Production) over that collected ESI, and
(d) produce responsive documents to Ms. Giuffre by May 16, 2016.
Dated: April 25, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley
Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
Boies, Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies, Schiller & Flexner LLP
333 Main Street
Armonk, NY 10504
8
Case 1:15-cv-07433-LAP Document 121 Filed 04/25/16 Page 10 of 10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 25, 2016, I electronically filed the foregoing
document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing
document is being served this day on the individuals identified below via transmission of Notices
of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.
Jeffrey S. Pagliuca, Esq.
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
Email: [email protected]
/s/ Sigrid S. McCawley
Sigrid S. McCawley
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