Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ

Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).

Specifically, Mosley requested that defendant’s computers be searched using search terms based off of the names and email addresses of Mosley, other relevant meeting participants, news reporters, and persons in the publishing industry. Id. at *9-10. Defendant argued that the searches would be futile for several reasons, including: (1) he did not communicate with several persons via email and (2) he had lost substantial data through computer crashes over time. Id. at *12-13. The Court held that defendant’s representations as to the lack of ESI were “insufficient to constitute a satisfactory response to any legitimate requests for ESI.” Id. at *17. Defendant’s affidavit was also insufficient to oppose the searches because it failed to “substantiate” his claims that no relevant ESI would be yielded by running the proposed searches and was equivocal in merely stating that “most” documents were discarded or that he did not “generally” save emails. Id. at *17-19. The Court further held that defendant’s claim that the search would be futile because he did not email with Mosley was “not persuasive” because the search terms were designed to yield communications about Mosley and not just with him. Id. at *21. Finally, defendant’s claims of computer crashes were insufficient because he failed to “indicate whether he saved the computers that crashed or attempted to retrieve or transfer any materials from the old computers onto their replacements.” Id. at *18. The Court did, however, limit Mosley’s proposed search terms due to overbreadth by eliminating terms that consisted of last names only, the name of one of defendant’s former employees, and email domain names that would have yielded all communications with each news organization, whether they pertained to Mosley or not. Id. at *25, 27 and 30.

In short, the plain statement that computer data would not yield responsive ESI is unpersuasive and the argument itself should not be pursued without significant substantiation. At minimum, the proponent should (1) conduct the proposed searches in order to confirm (or de-confirm) that relevant ESI would not be yielded; (2) outline in detail the custodian’s computer system and data retention practices; and (3) set forth efforts, if any, to retrieve “lost” computer data. Even then, the argument that computer data does not contain responsive ESI is not overwhelmingly compelling in this age of over-use of communications technology.

Paul A. Saso is an Associate on the Gibbons E-Discovery Task Force.
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