EFTA00729948.pdf

SEARCY DENNEY MNFRT PAI M RPACH OFFICP SCAROLA Oym LANASSFF (*FICA. 2139 PALM BEACH LAKES BLVD. WEST PALM BEACH FLORIDA 33409 BARNHART THE TOWLE HOUSE 517 NORTH CALHOUN STREET TALLAHASSEE. R.32931.1231 P.O. BOX362e WEST PALM BEACH. FLORIDA 33402 P.O. BEN 1230 TALLAHASSEE FLORIDA 32302 alOLT - October 20, 2010 ATTORNEYS AT LAW Joseph L. Ackerman, Jr., Esquire ROSNYN SIA BAKER BANES Fowler White Burnett, P.A. 'F. GREGORY BARNUM T. HARDEE SASS. B 901 Phillips Point West LAURIE I BRIGGS BRIAN R. DENSE? 777 S Flagler Drive •cma. L. te116?..111, BREHM S.Mali West Palm Beach, FL 33401-6170 JAISESW. GUSTAFSON, JR. JACIC P. HILL CAM IC KEU-EY. JR. WILLIAM SKIM' Re: Edwards adv. Epstein 'DARRYL L.LEWIS' •WILUAN &NORTON nuserAce.amitm, Our File No.: 291874 EDWARD v.RILL 'DAVID A SALES. 'EOM SCAROLA •CIENSTIAN O. SEARCY Dear Mr. Ackerman: WNW A-SHIPLEY N CHRISTOPRIER K. SPEED" OMAN P. BULLNAN2C KAREN E.TERWI By this letter, you and your clients are hereby given notice not to destroy, conceal or 'C.CALVIN WARMER III alter any paper or electronic files and other data generated by and/or stored on your SHAREHOWERS 'ROMP CURT NED clients' computers and storage media (e.g., hard disks, floppy disks, backup tapes), or 2152292017.12 any other electronic data, such as voice mail. As you know, your clients' failure to KENTUCKY wAra 3 UARYLAND comply with this notice can result in severe sanctions being imposed by the Court and • MASSACMSOTS IAISSISSPR liability in tort for spoliation of evidence or potential evidence. FI£W HAMPSHIRE 'NEW JERSEY YOCUM 7 WASHINGTON OC Through discovery we expect to obtain from you a number of documents and things, PNIALEGALS. including files stored on your clients' computers and your clients' computer storage MAN AWEETEJEDA media. In order to avoid spoliation, you must be prepared to provide the data ALYSSA A. DEDHAM° RANDY 1/DUFRESNE requested on the original media. Do not reuse any media on which potentially relevant CAVE WOE/JOIE EOM C. HOPKINS data is presently stored. DEBORAH U. KNAPP VINCENT L LEMARCI..R JAMS PETER LOVE CHRISTCRMI J. PLUTO ACCEPT W. PITCHER Although we may bring a motion for an order preserving documents and things from RAM P.PORGY KATHLEEN. SWAN destruction or alteration, your clients' obligation to preserve documents and things for STEVE a SAM BONATE S. SOAK discovery in this case arises in law and equity independently from any order on such WALTER A STEM motion. Electronic documents and the storage media on which they reside contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists, we may seek all documents in their electronic form along with information about those documents contained on the media. We also may seek paper printouts of only those documents that contain unique asEVisia.WWW.SEARCYLAWCOM EFTA00729948 Joseph L. Ackerman, Jr., Esq. Edwards adv. Epstein October 20, 2010 Page 2 information after they were printed out (such as paper documents containing handwriting, signatures, marginalia, drawings, annotations, highlighting and redactions) along with any paper documents for which no corresponding electronic files exist. Our discovery requests may ask for certain data on the hard disks, floppy disks and backup media used in your clients' computers, some of which data are not readily available to an ordinary computer user, such as "deleted" files and "file fragments." As you may know, although a user may "erase" or "delete" a file, all that is really erased is a reference to that file in a table on the hard disk; unless overwritten with new data, a "deleted" file can be as intact on the disk as any "active" file you would see in a directory listing. Accordingly, electronic data and storage media that may be subject to our discovery requests and that your clients are obligated to maintain and not alter or destroy, include but are not limited to the following: Description of files and file types subject to discovery: 1. All digital or analog electronic files, including "deleted" files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives or floppy disks used by your clients' computers and their backup media (e.g., other hard drives, backup tapes, floppies, Jaz cartridges, CD- ROMs) or otherwise, whether such files have been reduced to paper printouts or not. More specifically, your clients are to preserve all of your e-mails, both sent and received, whether internally or externally; all word-processed files, including drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all CAD (computer-aided design) files, including drafts and revisions; all presentation data or slide shows produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other data produced by project management software (such as Microsoft Project); all data generated by calendaring, task management and personal information management (PIM) software (such as Microsoft Outlook or Lotus Notes); all data created with the use of personal data assistants (PDAs), such as PahnPilot, HP Jornada, Cassiopeia or other Windows CE-based or Pocket PC devices; all data created with the use of document management software; all data created with the use of paper and electronic mail logging and routing software; all Internet and Web- browser-generated history files, caches and "cookies" files generated at the workstation of each employee and/or agent in your client's clients' employ and on any and all backup storage media; and any and all other files generated by users through the use of computers and/or telecommunications, including but not limited to voice EFTA00729949 Joseph L. Ackerman, Jr., Esq. Edwards adv. Epstein October 20, 2010 Page 3 mail. Further, you are to preserve any log or logs of network use by employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of your backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit "mirror" evidentiary image copy of the storage media of each and every personal computer (and/or workstation) and network server in your control and custody, as well as image copies of all hard drives retained by you and no longer in service. Your clients are also not to pack, compress, purge or otherwise dispose of files and parts of files unless a true and correct copy of such files is made. Your clients are also to preserve and not destroy all passwords, decryption procedures (including, if necessary, the software to decrypt the files); network access codes, ID names, manuals, tutorials, written instructions, decompression or reconstruction software, and any and all other information and things necessary to access, view and (if necessary) reconstruct the electronic data we are requesting through discovery. 2. Online Data Storage on Mainframes and Minicomputers: With regard to online storage and/or direct access storage devices attached to your clients' mainframe computers and/or minicomputers: they are not to modify or delete any electronic data files, "deleted" files and file fragments existing at the time of this letter's delivery, which meet the definitions set forth in this letter, unless a true and correct copy of each such electronic data file has been made and steps have been taken to assure that such a copy will be preserved and accessible for purposes of this litigation. 3. Offline Data Storage, Backups and Archives, Floppy Diskettes, Tapes and Other Removable Electronic Media: With regard to all electronic media used for offline storage, including magnetic tapes and cartridges and other media that, at the time of this letter's delivery, contained any electronic data meeting the criteria listed in paragraph 1 above: Your clients are to stop any activity that may result in the loss of such electronic data, including rotation, destruction, overwriting and/or erasure of such media in whole or in part. This request is intended to cover all removable electronic media used for data storage in connection with their computer systems, including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes and all other media, whether used with personal computers, minicomputers or mainframes or other computers, and whether containing backup and/or archive data sets and other electronic data, for all of their computer systems. 4. Replacement of Data Storage Devices: Your clients are not to dispose of any electronic data storage devices and/or media that may be replaced due to failure and/or dasa3s,ta EFTA00729950 Joseph L. Ackerman, Jr., Esq. Edwards adv. Epstein October 20, 2010 Page 4 upgrade and/or other reasons that may contain electronic data meeting the criteria listed in paragraph 1 above. 5. Fixed Drives on Stand-Alone Personal Computers and Network Workstations: With regard to electronic data meeting the criteria listed in paragraph 1 above, which existed on fixed drives attached to stand-alone microcomputers and/or network workstations at the time of this letter's delivery: Your clients are not to alter or erase such electronic data, and not to perform other procedures (such as data compression and disk de-fragmentation or optimization routines) that may impact such data, unless a true and correct copy has been made of such active files and of completely restored versions of such deleted electronic files and file fragments, copies have been made of all directory listings (including hidden files) for all directories and subdirectories containing such files, and arrangements have been made to preserve copies during the pendency of this litigation. 6. Programs and Utilities: Your clients are to preserve copies of all application programs and utilities, which may be used to process electronic data covered by this letter. 7. Log of System Modifications: Your clients are to maintain an activity log to document modifications made to any electronic data processing system that may affect the system's capability to process any electronic data meeting the criteria listed in paragraph 1 above, regardless of whether such modifications were made by employees, contractors, vendors and/or any other third parties. 8. Personal Computers Used by Your Employees and/or Their Secretaries and Assistants: The following steps should immediately be taken in regard to all personal computers used by your clients' employees and/or their secretaries and assistants. a. As to fixed drives attached to such computers: (i) a true and correct copy is to be made of all electronic data on such fixed drives relating to this matter, including all active files and completely restored versions of all deleted electronic files and file fragments; (ii) full directory listings (including hidden files) for all directories and subdirectories (including hidden directories) on such fixed drives should be written; and (iii) such copies and listings are to be preserved until this matter reaches its final resolution. EFTA00729951 Joseph L. Ackerman, Jr., Esq. Edwards adv. Epstein October 20, 2010 Page 5 b. All floppy diskettes, magnetic tapes and cartridges, and other media used in connection with such computers prior to the date of delivery of this letter containing any electronic data relating to this matter are to be collected and put into storage for the duration of this lawsuit. 9. Evidence Created Subsequent to This Letter: With regard to electronic data created subsequent to the date of delivery of this letter, relevant evidence is not be destroyed and your clients are to take whatever steps are appropriate to avoid destruction of evidence. In order to assure that you and your clients' obligation to preserve documents and things will be met, please forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter. ea TOetaa, EFTA00729952