United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE:

NATIONAL SECURITY AGENCY

TELECOMMUNICATIONS RECORDS

LITIGATION

This Document Relates To:

ALL CASES

 /

MDL Docket No 06-1791 VRW

ORDER

Plaintiffs have moved for an order prohibiting the

alteration or destruction of evidence during the pendency of this

action. MDL Doc # 384. The United States has filed papers

opposing the motion, Doc # 386, and has prepared and lodged with

the court a confidential submission designed for ex parte, in

camera review. Doc # 387. Telephone company defendants AT&T,

Cingular, Bellsouth, Sprint and Verizon have joined in the United

States’s opposition to plaintiffs’ motion. Doc # 365, 388, 390. 

Upon careful review of the non-confidential papers

submitted in support of and in opposition to the motion, the court

Case M:06-cv-01791-VRW Document 393 Filed 11/06/2007 Page 1 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

has determined that (1) no hearing on the motion is necessary; (2)

an order requiring the preservation of evidence is appropriate; and

(3) an interim order shall forthwith enter requiring the parties to

take steps to prevent the alteration or destruction of evidence as

follows:

A. Until the issues in these proceedings can be further

refined in light of the guidance and directives anticipated to be

received upon appellate review of the court’s decision in Hepting v

AT&T Corporation, 439 F Supp 974 (N D Cal 2006) and of the Oregon

district court’s decision in Al-Haramain Islamic Foundation, Inc v

Bush, 451 F Supp 2d 1215 (D Or 2006), the court reminds all parties

of their duty to preserve evidence that may be relevant to this

action. The duty extends to documents, data and tangible things in

the possession, custody and control of the parties to this action,

and any employees, agents, contractors, carriers, bailees or other

non-parties who possess materials reasonably anticipated to be

subject to discovery in this action. Counsel are under an

obligation to exercise efforts to identify and notify such nonparties, including employees of corporate or institutional parties. 

B. “Documents, data and tangible things” is to be

interpreted broadly to include writings, records, files,

correspondence, reports, memoranda, calendars, diaries, minutes,

electronic messages, voicemail, e-mail, telephone message records

or logs, computer and network activity logs, hard drives, backup

data, removable computer storage media such as tapes, disks and

cards, printouts, document image files, web pages, databases,

spreadsheets, software, books, ledgers, journals, orders, invoices,

bills, vouchers, checks, statements, worksheets, summaries,

Case M:06-cv-01791-VRW Document 393 Filed 11/06/2007 Page 2 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

compilations, computations, charts, diagrams, graphic

presentations, drawings, films, digital or chemical process

photographs, video, phonographic, tape or digital recordings or

transcripts thereof, drafts, jottings and notes. Information that

serves to identify, locate, or link such material, such as file

inventories, file folders, indices and metadata, is also included

in this definition. 

C. “Preservation” is to be interpreted broadly to

accomplish the goal of maintaining the integrity of all documents,

data and tangible things reasonably anticipated to be subject to

discovery under FRCP 26, 45 and 56(e) in this action. Preservation

includes taking reasonable steps to prevent the partial or full

destruction, alteration, testing, deletion, shredding,

incineration, wiping, relocation, migration, theft, or mutation of

such material, as well as negligent or intentional handling that

would make material incomplete or inaccessible. 

D. Counsel are directed to inquire of their respective

clients if the business practices of any party involve the routine

destruction, recycling, relocation, or mutation os such materials

and, if so, direct the party, to the extent practicable for the

pendency of this order, either to

(1) halt such business processes; 

(2) sequester or remove such material from the business

process; or

(3) arrange for the preservation of complete and accurate

duplicates or copies of such material, suitable for later discovery

if requested.

\\

Case M:06-cv-01791-VRW Document 393 Filed 11/06/2007 Page 3 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

The most senior lawyer or lead trial counsel representing

each party shall, not later than December 14, 2007, submit to the

court under seal and pursuant to FRCP 11, a statement that the

directive in paragraph D, above, has been carried out. 

The clerk is directed to vacate the hearing now scheduled

for November 15, 2007 in this matter. 

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

Case M:06-cv-01791-VRW Document 393 Filed 11/06/2007 Page 4 of 4