District of Delaware's Access to Source Code Standard

The United States District Court for the District of Delaware has taken the unusual step of publishing a Default Standard for Access to Source Code. This protocol governs how parties can access the source code of another party's software absent an agreement between them. There are eight key principles:

1. The code is inspected on a stand-alone computer.

2. The stand-alone computer is supplied by the owner of the source code.

3. The stand-alone computer is given to an independent escrow agent.

4. Only the requesting party's outside counsel and two of its experts can access the stand-alone computer.

5. The source code cannot be printed or copied.

6. The provider must supply a manifest of every file and its MD5 checksum.

7. Software must allow the source code to be searched and analyzed.

8. If there is an issue of missing files, build script, compilers, and assemblers needed to rebuild the application from the code must be provided.

Bit Recover Email Conversion Tools

Bit Recover has a number of different tools to assist with data recovery, and email conversion. Be sure to check out the 39 free tools Bit Recover makes available here. The tools allow you to review .pst archives, .ost files, .mbox email files (used by Eudora, Thunderbird, and other emails clients); convert Word documents to PDF (& vice versa); and count the number of emails in .mbox and .pst archives. They have limited functionality unless you purchase a license, but you can use them for projects with small data sets.

I tested two of these tools tonight.

The MBOX wizard easily accessed an .mbox archive file with multiple emails.

The tool also allows you to export the emails as PDFs; .msg files; a .pst archive and other common formats.

The DOC to PDF Wizard will convert multiple Word documents to PDF format.

S.D. Fla. Ruling: Jury Can Decide Bad Faith Intent for Rule 37 Sanctions

Last Friday, Judge Jonathan Goodman issued an order denying a motion for reconsideration of an order on the Plaintiff's sanction motion. See, Sosa v. Carnival Corp., No. 18-20957-CIV, 2019 U.S. Dist. LEXIS 12283 (S.D. Fla. Jan. 25, 2019). The sanctions motions concerned the loss of CCTV video by Carnival of a slip and fall incident. The order gave Sosa the option of submitting all of the evidence to the jury about the unavailability of the CCTV video and arguing that Carnival intended to deprive her of its use, or preventing a security officer from testifying about the CCTV video and having the Court advise the jury that this footage is no longer available.

Judge Goodman confirmed his analysis in the prior order of the applicability of Fed. R. Civ. P. 37(e), and his conclusion that Sosa had the burden to establish that Carnival did not take reasonable steps to preserve the ESI. The opinion addresses Carnival's contention that the finding that it did not take reasonable steps to preserve the CCTV video is clearly erroneous or contrary to law. Judge Goodman states that in his prior order it was not found that Carnival acted with the intent to deprive Sosa with the use of the video in this case. This issue was reserved for the jury. He disagreed with Carnival's counsel that the intent to deprive is a prerequisite for Rule 37 sanctions. He instead endorsed a four factor test:

First, the ESI should have been preserved in the anticipation or conduct of the litigation.

Second, the ESI is lost or destroyed.

Third, the loss of the ESI is due to the party's failure to take reasonable steps to preserve the ESI.

Last, the ESI cannot be restored or replaced through additional discovery.

In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-MD-2734, 2018 U.S. Dist. LEXIS 172536, at *2 (N.D. Fla. Oct. 5, 2018).

Judge Goodman rejected Sosa's argument that a court must make a finding of intent for Fed. R. Civ. P. 37(e), and this issue should not be decided by a jury. He noted his reasons for leaving the issue to the jury: "The Undersigned determined that a jury should make that determination because the record is murky, the critical witness (Desouza [the security officer]) has not testified, some of the circumstances are odd and arguably suspicious, and the Undersigned is not convinced of Desouza's credibility." Sosa, 2019 U.S. Dist. LEXIS 12283, at *8.

The reconsideration motion also argued that Carnival did not take reasonable steps to preserve the CCTV video. The Court noted that unreasonable steps can merely be negligent ones, but negligence is not sufficient in and of itself to warrant sanctions under Rule 37. Intent is required for the harshest sanctions, but not for all available sanctions. In confirming its prior determination that Carnival did not take reasonable preservation steps, Judge Goodman noted the following factors:

1. Carnival is a sophisticated litigant and regularly receives requests for its CCTV video. Its 30(b)(6) deponent testified that she testifies for Carnival once or twice each week.

2. Carnival offered no explanation for how the CCTV video was lost.

3. Carnival did not argue that producing the video would not be proportional to the needs of the case.

4. Carnival said that the video might be missing because a flash drive could have been lost. This was inconsistent with the fact that CCTV video is stored on a computer located on the ship.

5. The security officer stopped his investigation before it was complete and did not file an official report.

6. Carnival had a 14 day data retention policy and received notice of Sosa's claim 13 days afterward.