6/26. The U.S. Court of Appeals (6thCir) issued its opinion [12 pages in PDF] in John B. v. Goetz, granting a petition for writ of mandamus to the District Court regarding discovery of electronically stored information (ESI).

Introduction. The District Court issued orders that, among other things, compelled the forensic imaging and production of computer hard drives. The Court of Appeals held that the District Court erred in compelling forensic imaging.

This opinion contains a long and detailed discussion of the appropriateness of compelled forensic imaging of hard drives in discovery disputes. And, the Court of Appeals overturned orders compelling such discovery. However, in future cases parties seeking discovery might argue that this case is of limited applicability in civil litigation between private parties because of facts peculiar to this case.

The defendants are officials of a sovereign state, and the discovery orders extended to the computers of high ranking state officials who are not defendants in the case. Failure to overturn parts of the orders could have embarrassed the federal judiciary in the event that these court orders created a stand off between federal marshals and state officials and police, and resulted in federal court orders being publicly and successfully defied.

Nevertheless, all parties, including private litigants, against whom compelled forensic imaging orders are sought may cite this opinion as authority in support of their opposition to intrusive electronic discovery.

Background. This is a class action case, filed in 1998 on behalf of children in state of Tennessee in the U.S. District Court (DMTenn) regarding the state's managed health care system titled TennCare. The parties reached a settlement, and the District Court entered a Consent Decree in 2000.

The present dispute pertains to compliance with that Consent Decree. The plaintiffs sought and obtained leave to conduct discovery. Discovery disputes ensued. The District Court issued two orders, that are the subject of this opinion, regarding the defendants' duty to preserve and produce electronically stored information relevant to the litigation.

The Court of Appeals wrote that the first "directed plaintiffs’ computer expert and a court-appointed monitor to inspect the state’s computer system and the computers of 50 key custodians to ascertain whether any relevant information has been impaired, compromised, or removed." The second directs that the first order be executed forthwith.

Moreover, "Both orders allow plaintiffs’ computer expert to make forensic copies of the hard drives of identified computers, including not only those at the work stations of the state’s key custodians, but also any privately owned computers on which the custodians may have performed or received work relating to the TennCare program."

Court of Appeals Opinion. Tennessee initiated the present mandamus proceeding. The Court of Appeals granted the motion.

The Court of Appeals "set aside those portions of the orders that call for the forensic imaging of all hard drives and other devices that contain relevant ESI" and expressed no opinion "with respect to other provisions in the orders that can be executed in a manner consistent with this opinion".

First, the Court of Appeals noted that "the mere imaging of the media, in and of itself, raises privacy and confidentiality concerns. Duplication, by its very nature, increases the risk of improper exposure, whether purposeful or inadvertent", and that "these orders cannot be executed without some disruption of state business".

The Court wrote that a party to civil litigation has "a duty to preserve relevant information, including ESI" when it "has notice that the evidence is relevant to litigation" or "should have known that the evidence may be relevant to future litigation"

It continued, however, that there is less clarity "surrounding the question of a district court’s authority to compel the forensic imaging and production of computer hard drives as a means by which to preserve relevant electronic evidence. Because litigants are generally responsible for preserving relevant information on their own, such procedures, if at all appropriate, should be employed in a very limited set of circumstances."

The Court of Appeals noted that other courts have compelled forensic imaging. But, it wrote that "even if acceptable as a means to preserve electronic evidence, compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures."

In the present case, the Court of Appeals concluded that "the media at issue will almost certainly contain confidential state or private personal information that is wholly unrelated to the litigation", and that in issuing its orders the District Court failed "to account properly for the significant privacy and confidentiality concerns".

The Court of Appeals elaborated that "Although the risk of improperly exposing such information, standing alone, might not preclude the employment of forensic imaging in all cases, the forensic imaging must be premised on an interest significant enough to override that risk. Such an interest is not demonstrably present in this case."

The Court added that "this case raises other obvious issues that counsel against the forensic imaging procedures ordered by the district court" including federalism and comity issues. That is, the federal order extended to forensic imaging of computers of state officials, and included sending federal law enforcement officials into the offices and homes of high ranking state officials.

The Court opined that "state officials are not immune from complying with federal discovery mandates", but "where less intrusive means are available to address the perceived discovery violations of state parties, those means should be employed before resorting to inherently intrusive measures like forensic imaging, especially in cases where there is no evidence of purposeful or intentional destruction of relevant ESI."

Judge Cole wrote a concurring opinion in which he praised the efforts of the District Court, and the majority's opinion, and added that the District Court's order "may lead to confrontations between federal marshals and state officials".

Case Information. This case is John B., et al. v. M.D. Goetz, et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 07-6373, an petition for writ of mandamus to the U.S. District Court for the Middle District of Tennessee at Nashville, D.C. No. 98-00168, Judge William Haynes presiding.

Judge Rogers wrote the opinion of the Court of Appeals, in which Judge Gibbons joined. Judge Cole wrote a concurring opinion.

6/26. The Government Accountability Office (GAO) released a report [PDF] titled "Critical Infrastructure Protection: Further Efforts Needed to Integrate Planning for and Response to Disruptions on Converged Voice and Data Networks".

The report, which was prepared for the House Homeland Security Committee (HHSC), addresses the status of efforts by the Department of Homeland Security (DHS) to integrate the activities of two of its components, the National Cyber Security Division (NCSD) and the National Communications System (NCS), and to prepare for and respond to disruptions on converged voice and data networks.

The report states that the DHS "has taken the first of three steps toward integrating its centers responsible for planning for and monitoring the communications infrastructure, including voice and data networks, and the security of data and applications residing on these networks. Specifically, in November 2007, it moved the operations center for communications infrastructure -- NCC Watch -- to office space adjacent to the center for data and applications -- US-CERT. This close proximity allows the approximately 41 coordination center and 95 readiness team analysts to, among other things, readily collaborate on planned and ongoing activities."

In addition, the two components now have "common software tools to identify and share physical, telecommunications, and cyber information related to performing their missions".

However, the report continues, the DHS has not performed two other steps. It "has not organizationally merged the two centers or invited key private sector critical infrastructure officials to participate in the operation of the proposed joint center."

Rep. James Langevin (D-RI), Chairman of the HHSC's Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology stated in a release that "The lack of progress ... is unacceptable". He added that "We must make the security of these networks a top priority, and it is clear that this has not been the case up to now."

6/23. The Supreme Court granted certiorari in Pacific Bell v. Linkline Communications, an antitrust case. See, Orders List [11 pages in PDF] at page 2

The U.S. Court of Appeals (9thCir) issued its divided opinion [22 pages in PDF] on September 11, 2007. The majority opinion states that the issue is whether the Supreme Court's January 13, 2004, opinion [22 pages in PDF] in Verizon v. Trinko, 540 U.S. 398, "bars a plaintiff from claiming a violation of §2 of the Sherman Antitrust Act by virtue of an alleged price squeeze perpetrated by a competitor who also serves as the plaintiff’s supplier at the wholesale level, but who has no duty to deal with the plaintiff absent statutory compulsion. We conclude that it does not, and affirm the order of the district court denying judgment on the pleadings."

The Supreme Court held in Verizon v. Trinko that a claim alleging a breach of an incumbent local exchange carrier's (ILEC) duty under the 1996 Telecom Act to share its network with competitors does not state a violation of Section 2 of the Sherman Act. See also, story titled "Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko" in TLJ Daily E-Mail Alert No. 815, January 14, 2004.

In January the Supreme Court requested a brief from the Office of the Solicitor General (OSG). See also, story titled "Supreme Court Requests Solicitor General Brief in Telecom Antitrust Case" in TLJ Daily E-Mail Alert No. 1,704, January 23, 2008.

The OSG submitted an amicus curiae brief in May in which it urged the Supreme Court to grant certiorari because the 9th Circuit opinion is contrary to the Supreme Court's antitrust jurisprudence.

The OSG wrote that the question presented in this petition is "Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant -- a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors -- engaged in a ``price squeeze´´ by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete."

It continued that "Section 2 of the Sherman Act does not provide a cause of action for ``price-squeeze´´ claims of the type at issue here -- namely, allegations that a vertically integrated company with an alleged monopoly at the whole sale level, but with no antitrust duty to provide that wholesale input to its retail competitors, engaged in a ``price squeeze´´ by leaving insufficient margin between wholesale and retail prices to allow its retail competitors to compete."

The OSG further wrote that "Accepting such a price-squeeze theory based solely on an inadequate margin between a defendant's wholesale and retail prices would recognize an antitrust claim involving no allegations of predatory pricing, no breach of an antitrust duty to deal, and no conduct that harms competition in a way the antitrust laws forbid."

"Such a theory of liability could not be reconciled with this Court's modern antitrust jurisprudence. The court of appeals' contrary holding is erroneous and is in conflict with the decisions of other courts of appeals." It added that "review is warranted because the Ninth Circuit's endorsement of such a theory threatens to chill retail price-cutting by vertically integrated firms and encourage litigation designed to protect competitors at the expense of competition, thereby undermining the procompetitive purposes of the antitrust laws and harming consumers."

Case Information. This case is Pacific Bell Telephone Company, et al. v. Linkline Communications, Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 07-512, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit.

See also, Supreme Court docket.

Pacific Bell is represented by Michael Kellogg of the law firm of Kellogg Huber. Linkline is represented by Maxwell Blecher of Blecher & Collins.

The House will not meet.

The Senate will meet at 9:45 AM for morning business.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice [PDF] and notice in the Federal Register, June 11, 2008, Vol. 73, No. 113, at Page 33090. Location: FCC, Commission Meeting Room, 445 12th St., SW.

CANCELLED. 10:00 AM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing titled "Competition on the Internet". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Rules of Practice in Trademark Cases to require a fee of $50 for filing a request for reconsideration on paper of an examining attorney's final refusal, whereas no fee would be required for a request for reconsideration filed through the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the eligible telecommunications carrier (ETC) obligation to provide monthly digital television (DTV) transition notices to low income subscribers should be expanded to require the provision of such notices to all subscribers, and whether multichannel video programming distributors (MVPDs) should be required to provide on air DTV transition education on their systems. This FNPRM [30 pages in PDF] is FCC 08-119 in MB Docket No. 07-148. See also, correction [PDF]. See, notice in the Federal Register, May 28, 2008, Vol. 73, No. 103, at Pages 30591-30596.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-108 [20 pages in PDF] titled "Recommendation for Key Derivation Using Pseudorandom Functions".

The House will begin its July 4th recess. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF].

The Senate will begin its July 4th recess. See, Senate 2008 calendar.

Accelerated deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding small, minority owned and women owned businesses in broadcasting. See, original notice in the Federal Register, May 16, 2008, Vol. 73, No. 96, at Page 28400-28407, and notice accelerating comment deadlines in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Page 30875. The FCC adopted this NPRM on December 18, 2007, and released the text on March 5, 2008. See, NPRM [70 pages in PDF], first corrections [2 pages in PDF] and second correction [2 pages in PDF]. This NPRM is FCC 07-217 in MB Docket Nos. 07-294, 06-121, 02-277, and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244.

The House will not meet.

The Senate will not meet.

9:00 AM - 4:00 PM. The The National Institute of Standards and Technology (NIST) will hold a public workshop regarding the establishment of a laboratory accreditation program for laboratories performing inoperability, performance, and conformance biometrics testing on Personal Identification Verification equipment. The Department of Homeland Security (DHS) requested that the NIST establish such a program. See, notice in the Federal Register, June 13, 2008, Vol. 73, No. 115, at Pages 33806-33807. Location: NIST, Green Auditorium, Gaithersburg, MD.

2:00 - 3:30 PM. The American Enterprise Institute (AEI) will host a book forum. The speakers will be Mark Krikorian (Center for Immigration Studies), author of the book [Amazon] titled "The New Case Against Immigration: Both Legal and Illegal", Jason Richwine (AEI), Fred Siegel (Progressive Policy Institute), and David Frum (AEI). See, notice. Location: AEI, 1150 17th St., NW.

The House will not meet.

The Senate will not meet.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "India: The Emerging Giant", by Arvind Panagariya (Columbia University). The speakers will be Panagariya and Swaminathan Aiyar (Cato). See, notice and registration page. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline for transmittal of applications for awards for Fiscal Year 2009 from the Department of Education's (DOE) Technology and Media Services for Individuals with Disabilities program. This program provides awards to "support educational media services activities designed to be of educational value in the classroom setting to children with disabilities" and to "provide support for captioning and video description of educational materials that are appropriate for use in the classroom setting". See, notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31442-31448.

The House will not meet.

The Senate will not meet.

Deadline to submit comments to the National Institute of Standards and Technology's(NIST) Computer Security Division (CSD) regarding its NIST IR 7502 [24 pages in PDF] titled "The Common Configuration Scoring System".

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding adjusting certain patent fee amounts for Fiscal Year 2009 to reflect change in the Consumer Price Index (CPI). See, notice in the Federal Register, June 3, 2008, Vol. 73, No. 107, at Pages 31655-31663.

Independence Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

The House will not meet.

The Senate will not meet.

6/24. The Senate confirmed Helene White to be a Judge of the U.S. Court of Appeals for the 6th Circuit by a vote of 63-32. See, Roll Call No. 156. All of the votes against confirmation were cast by Republicans. President Bush nominated White, a Democrat previously nominated by former President Clinton, as part of a deal with Senate Democrats also involving the nomination of Republicans Raymond Kethledge and Stephen Murphy. See, story titled "President Bush and Senate Democrats Reach Compromise on 6th Circuit Nominees" in TLJ Daily E-Mail Alert No. 1,747, April 15, 2008. Also on June 24, the Senate confirmed Raymond Kethledge to be a Judge of the U.S. Court of Appeals (6thCir) without a roll call vote. He is a partner in the law firm of Bush Seyferth Kethledge & Paige. Also on June 24, the Senate confirmed Stephen Murphy to be a Judge of the U.S. District Court for the Eastern District of Michigan. Murphy is currently the U.S. Attorney for the Eastern District of Michigan. See, Congressional Record, June 25, 2008, at Page S6096. See also, statement of Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC).

6/26. The Senate confirmed William Lawrence to be a Judge of the U.S. District Court for the Southern District of Indiana by a vote of 97-0. See, Roll Call No. 159.

6/26. The Senate confirmed Murray Snow to be a Judge of the U.S. District Court for the District of Arizona. See also, statement of Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC).

6/26. President Bush nominated Peter Kann and Michael Meehan to be members of the Broadcasting Board of Governors (BBG) for the remainder of terms expiring on August 13, 2010. See, White House release and release. Kann was the long time CEO of Dow Jones, owner of the Wall Street Journal (WSJ), until just prior to Rupert Murdoch's announcement of his offer to purchase Dow Jones. If confirmed by the Senate, Kann will replace James Glassman, who resigned from the BBG, and has been Under Secretary of State for Public Diplomacy and Public Affairs since June 10. Meehan is the head of BGR Public Relations, the PR arm of BGR Holding, Inc., which is also known as Barbour Griffith & Rogers. Before that he worked in various positions on Capitol Hill, including on the staffs of former Sen. Tom Daschle (D-SD), Sen. Maria Cantwell (D-WA), Sen. John Kerry (D-MA), and the Kerry presidential campaign. President Bush also announced the withdrawal of the nomination of Jeffrey Hirschberg. This would have been a reappointment. Bush nominated Meehan in Hirschberg's place.

6/25. The Senate Banking Committee (SBC) approved the nomination of Christopher Wall to be Assistant Secretary of Commerce for Export Administration. See, SBC release and Congressional Record, June 25, 2008, at Page S6158.

6/25. The Senate Banking Committee (SBC) approved the nomination of Luis Aguilar to be a member of the Securities and Exchange (SEC) for the remainder of the term expiring June 5, 2010. It also approved the nomination of Troy Paredes to be a member of the SEC for a term expiring June 5, 2013, and the nomination of Elisse Walter to be a member of the SEC for a term expiring June 5, 2012. See, SBC release and Congressional Record, June 25, 2008, at Page S6158.

6/25. The Senate Banking Committee (SBC) approved the nomination of Donald Marron to be a member of the President’s Council of Economic Advisors. See, SBC release and Congressional Record, June 25, 2008, at Page S6158.

6/25. The Senate Banking Committee (SBC) approved the nomination of Neel Kashkari to be Assistant Secretary of the Treasury for International Affairs. See, SBC release and Congressional Record, June 25, 2008, at Page S6158.

6/25. The Senate Homeland Security and Governmental Affairs Committee approved the nomination of Elaine Duke to be Under Secretary for Management at the Department of Homeland Security (DHS). See, Congressional Record, June 25, 2008, at Page S6158.

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