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Sixth Circuit Eases E-Discovery Burden for Agencies Under FOIA

By Lisa R. Bliss, Litigation News Associate Editor – March 16, 2011

The U.S. Court of Appeals for the Sixth Circuit recently addressed whether a government agency responding to a Freedom of Information Act request must attempt to locate and recover electronic documents that have been deleted. The appellate court affirmed summary judgment in favor of the Food and Drug Administration and determined that such a search was not necessary based on the request in that case. CareToLive v. Food & Drug Administration [PDF].

A Reasonable Search?
CareToLive made its FOIA request after the FDA denied a Biologic License Application for the treatment, “Provenge.” CareToLive sought these documents because the FDA advisory panel had initially recommended the approval of Provenge, but the agency did not follow that recommendation.

CareToLive’s claim under the FOIA was based on both the reasonableness of the FDA’s response to its request as well as the FDA’s failure to retrieve electronic documents in its possession that had been deleted. CareToLive argued that the FDA was required to attempt to recover deleted electronic documents that were responsive to its request.

The Sixth Circuit held that recovery of deleted files was not necessary for the FDA to meet its burden of conducting a reasonable search. The court noted that CareToLive’s request did not expressly target deleted files or particular computers at the FDA. Further, the court did not find any factual allegations that the deleted files would contain documents “the FDA had not already provided to CareToLive.”

According to the court, “[g]overnment employees delete e-mails and electronic documents every day and . . . government agencies are already burdened with a backlog of Freedom of Information Act requests.” The court observed that adopting CareToLive’s position “could potentially cripple agencies by requiring that after following their normal search procedures, they must have an information technology expert scan relevant computers and servers for additional information that might have been deleted.”

New Urgency for FOIA Requests
Given this decision, the lesson for litigators appears to be, “file FOIA requests as early as possible if government agencies may have documents relevant to litigation, because every day that goes by, the agency may, in the normal course of business, be deleting useful information,” says Andrew S. Pollis, Cleveland, cochair of the ABA Section of Litigation’s Consumer and Civil Rights Litigation Committee. Pollis advises that evaluating the potential existence of documents within an agency that could be subject to a FOIA request should be part of a lawyer’s initial case workup.

Arthur E. Justice, Florence, SC, cochair of the Section of Litigation’s Health Law Litigation Committee agrees that in cases in which documents from a governmental entity or a similar agency that is bound by federal or state FOIA laws might be needed, litigators should do everything they can to “get the FOIA requests out as soon in the litigation—or even pre-suit—as possible.” Although some litigators may want to wait to make sure their request covers all potentially responsive documents, it may be more important to get a request served quickly. “Remember, there is no reason you cannot supplement your FOIA request later,” Justice notes.

Keywords: litigation, e-discovery, FOIA, Sixth Circuit


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