537 F. Supp. 2d 14 (D.D.C. 2008)

PARTIES Plaintiff: United States – Q-P-Q charges against USDOS employee Michael O’Keefe & VISA applicant STS Jewelers Defendants: Michael O’Keefe, STS Jewelers – Gifts in exchange for expedited visa processing

Facts 1.US – 4/07 order by D/C judge to conduct document search; hard copies and ESI VISA applications by STS - requests/decisions to expedite (6 consulate posts) DOS policy, re: expedited visa requests Specific cases of expedited visa application processing 2.Gov’t production: No Bates system as requested by (Ds) Archived SOPs for expedited appointments: ; ESI produced in paper Records of expedited appointment requests: 1/2006 – 5/2007 (4 file cabinet drawers) Evidentiary and relevance implications Gov’t – Info. available from documents themselves Inconsistent searches Search of physical workspace – 4 individuals; search of personal electronic files – 24 individuals Toronto consulate only Questionable ESI search methods Employees not interviewed No employee search for ESI No software ID; search terms & preservation efforts not explained 2 week ESI back-up – no suspension of policy No search of O’Keefe hard drive – seized by gov’t No metadata - ESI in PDF or TIFF

Legal Framework 1.F.R.C.P. 34(b) Applicable to criminal cases - extensive use and amendment Production: Distinction between paper documents and ESI Paper documents: (1) Form in which ordinarily maintained or (2) organized and labeled to correspond to categories of request ESI: If form not specified, (1) produce in form in which ordinarily maintained or (2) in a reasonably usable form Goal: Equality between parties in ability to search docs. 2.Due Process Cl. – Destruction of evidence No violation if exculpatory value of evidence not apparent prior to destruction of evidence Analogous to F.R.C.P. 37(e) – No sanctions for destruction of ESI pursuant to routine, good- faith operation of electronic system 3. F.R.E. 702 – Testimony by Experts (challenge to search terms): (1) sufficient facts or data; (2) reliable principles or methods; and (3) reliable application of principles and methods to facts of case

Analysis “Undifferentiated mass”≠ form in which ordinarily maintained Requires reproduction of file folders containing responsive documents Replicates manner in which documents are kept Only way gov’t could have maintained the docs “Inexplicable deficiencies” ≠ basis for spoliation claim PDF & TIFF docs – Satisfies R. 34 requirement of “reasonably usable” unless (Ds) can show otherwise Search terms – Involves interplay of computer technology, statistics and linguistics “beyond the ken of a layman”

Issues What constitutes “form in which documents ordinarily maintained?” Whether metadata must be provided in order for ESI to be reasonably usable? What is the standard for challenging keyword searches? Whether documents can continue to be destroyed pursuant to routine policy after reasonable anticipation of litigation?

Conclusion Evidentiary issue: recommendation to D/C judge that all docs. produced by gov’t be deemed authentic Relevance issue: Joint development of Bates index Supplemental declarations Why workspace of all 24 individuals not searched Explanations from reps. of other consulates of how search was conducted at their posts Waiver of spoliation claim if not made by (Ds) directly within 21 days of opinion (Ds) to secure stipulation from gov’t to preserve ESI in native format Motion to Compel for challenge to keyword search Must meet R. 702 Adequate search terms – obviates employee interviews

Questions 1. Does R. 34 really achieve equality between the parties for searching documents or will the requesting party always be at some disadvantage if documents do not have to be organized to correspond to request? 2. When is metadata necessary for ESI to be reasonably usable?