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Doug Austin

Requesting Discovery in the Modern Age – eDiscovery Best Practices
 

Leave it to Craig Ball to break down requests for production of electronically stored information (ESI) in a simple and straightforward manner.

In his new article on Law Technology News (Modern E-Discovery Requests), he describes six “challenges” to “help litigators lose the boilerplate and write requests as sleek and modern as ESI itself”.

The article describes the challenges, and Craig provides some excellent examples to illustrate best practices.  Here are the challenges:

CHALLENGE 1: The definition of "document" must give way to an alternate term like "information."  Let’s face it, much of the information requested in discovery today doesn’t fit the traditional “document” format (e.g., videos, Facebook posts, texts, “tweets”, etc.).  As Craig notes, it’s not necessary to attempt to list them all and possibly miss one – the term “information” is sufficient.  Craig provides a simple example sentence here that conveys a concise, but effective way to request “information” in the request.

CHALLENGE 2: In practice, the catchalls "any and all" and "including, but not limited to" rarely serve to broaden the scope of a request, but they're lightning rods for objection.  Again, Craig provides examples verbiage that addresses the “any and all” coverage in the preface to obviate the need to cover it in each individual request.

CHALLENGE 3: When you define a term and either fail to use it or use an undefined variant, your request broadcasts your reliance on forms—it's easy to show you haven't customized your request to the case.  In other words, make sure that each request is customized and not boilerplate with regard to definition of terms.

CHALLENGE 4: Many requests fail to specify the forms sought for ESI production. Specifying "native format" isn't much better.  Specify forms of production sensibly and precisely. Don't assume that "native format" is clear or sufficient; instead, specify the formats sought for common file types.  Craig provides an excellent chart of the most common file types by file extension.

CHALLENGE 5: A well-crafted request should designate the medium of ESI production as well as the forms of production.  In other words, provide language that addresses the appropriate media for the size of production.  Again, Craig provides example wording that covers appropriate media for different sizes of productions.

CHALLENGE 6: Every electronic file has a complement of descriptive information called system metadata residing in the file table of the system or device storing the file. Different file types have different metadata… Develop a comprehensive production protocol tailored to the case and serve same with discovery. Short of that, specify the particular items of metadata and header fields you seek.  Once again, Craig provides an excellent example list of general fields to request, as well as those specific to email messages.

The examples that Craig provides are excellent illustrations of best practices for production requests and well worth checking out.  To view Craig’s article, click here.

So, what do you think?  How do you structure your production requests?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Samsung Again Owes Apple Almost $1 Billion, Sanction Deadline Nears – eDiscovery Case Law

The news continues to get worse for Samsung Electronics Co. in its colossal legal battle with Apple Inc…

A California federal jury ruled on November 21 that Samsung owes Apple $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products to almost $930 million.

The jury deliberated over the course of three days before reaching its decision and awarding the amount, which was less than the $380 million Apple sought from Samsung, but far more than Samsung’s efforts to cap damages at $53 million.

In August of last year, Apple was awarded over a billion dollar verdict, but U.S. District Judge Lucy Koh later reduced those damages to a measly $599 million and ordered a retrial on 13 of Samsung’s products, saying the earlier jury’s math on those gadgets didn’t add up.

And, that may not be the worst of it for Samsung.  Due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate” – Samsung and its outside counsel Quinn Emanuel Urquhart & Sullivan LLP are facing sanctions for that disclosure.

According to a declaration from Nokia’s Chief Intellectual Property Officer, Paul Melin, on June 4, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia license were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung’s outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that “all information leaks.”

Partner John Quinn of Quinn Emanuel acknowledged the inadvertent disclosure, which was apparently due to an associate at the firm failing to obscure a footnote and two paragraphs while performing a digital redaction of a 150-page report which was posted on an FTP site that was accessible by Samsung personnel.

As a result, California Magistrate Judge Paul S. Grewal ordered an “in camera” review of documents that Samsung claimed as privileged which Apple doubted that they were legitimately withheld from its lawyers.  Then, on November 8 after the review was conducted, Judge Grewal ordered Samsung and Quinn Emanuel to show cause why they should not be sanctioned, stating that “it appears…that sanctions against Samsung and its attorneys are warranted”.  However, he gave Samsung one last chance to defend its actions ordering Samsung to file a brief by December 2 (today) to explain why it should not be sanctioned, while also allowing Apple and Nokia to file a brief to propose appropriate sanctions, with a hearing on the matter set for next Monday, December 9.

So, what do you think?  Can it get any worse for Samsung?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Duty to Preserve Triggered When Litigation is "Imminent", Not "Reasonably Foreseeable" – eDiscovery Case Law
 

In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385,3:12-md-02385-DRH-SCW (S.D. Ill. Sept. 25, 2013), Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

In this multidistrict pharmaceutical litigation, the plaintiffs’ steering committee (PSC) sought the production of documents from a drug company’s former employee. The company claimed it deleted the documents under its records retention policy no later than November 2011, before the first lawsuit was filed in this matter. It claimed its duty to preserve did not arise until it knew that litigation was “imminent” in February 2012, when it received the first demand letter from a plaintiff.

The PSC contended that the company’s duty to preserve arose earlier and filed a motion for sanctions. After the court held a hearing on the motion, the drug company’s counsel worked with the custodian and located 40 personal e-mails from his personal e-mail account sent after he left the company that mentioned Pradaxa, the drug in question. The PSC complained that the company’s production was deficient: it wanted the company to produce more than documents that just “referenced” Pradaxa and also complained that the production was inconsistent with the custodian’s declaration that he did not have any Pradaxa-related documents in his possession. The company then asked an outside vendor to review 200 disaster recovery tapes to determine whether it could recover the custodian’s documents.

The PSC filed a motion to compel the custodial file and asked the court for “other relief that the Court deems appropriate” if it found that the file had been destroyed. It claimed the company’s “duty to preserve arose as soon as [it] had reason to anticipate pending litigation and that imminence is not required.” Here, the PSC argued that the company’s duty was triggered because of other litigation stemming from the Pradaxa clinical trials, adverse event reports, and “internet chatter” on the websites of plaintiffs’ law firms.

Judge Herndon agreed with the company and found its duty to preserve did not arise until February 2012 when it received the demand letter and “knew or should have known that litigation was imminent.” Because there was no duty, sanctions were not appropriate. Moreover, even if the duty had arisen before the file was destroyed, the PSC had not shown the company destroyed the file in bad faith and was thus not entitled to a spoliation inference. Instead, it had followed its records retention policy.

So, what do you think?  Should the request for sanctions have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Cost-Shifting Inappropriate when Data is Kept in an Accessible Format – eDiscovery Case Law

In Novick v. AXA Network, LLC, No. 07 Civ. 7767 (AKH) (KNF) (S.D.N.Y. Sept. 24, 2013), New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

In September 2012, the court ordered the plaintiff to give the defendants a revised customer list and a list of 10 custodians whose e-mails it had to search over a 2.5 year period. Claiming the request was “excessive and burdensome,” the defendants filed a motion asking for an order requiring the plaintiff to reimburse more than $40,000 in attorney’s fees and costs. Roughly half of the fees went to an outside vendor that processed the searches, and the remainder constituted legal fees.

The defendants argued that cost-shifting was appropriate under Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). The defendants premised their argument on the fact that the search of 800 customers returned 80 gigabytes of data, but there were fewer than 400 pages of responsive documents, most of which duplicated prior discovery that the defendants had already produced. Instead, the plaintiff should have limited the search parameters and approached some of the customers to obtain the required information. In essence, the defendants argued that it was unfair “to require them ‘to continue funding unending discovery’” given the small amount at stake or to require it “‘to bear the cost of production to individual parties, if the individual parties are permitted to request every manner of production that occurs to them.’”

The plaintiff argued that cost-shifting was inappropriate because his search request was “extremely specific” and involved only 10 custodians. Moreover, the company’s outside vendor allegedly performed the search improperly. Finally, as a “‘multi-billion dollar company,’” the plaintiff argued that the defendants had a greater “ability to bear the cost.”

Here, Judge Fox found in favor of the plaintiff. Although parties are expected to bear the expense of complying with discovery requests, the court has discretion under Federal Rule of Civil Procedure 26(c) to shift the costs to protect a party from “undue burden or expense.” Under Zubulake, the court needed to determine “‘whether production of documents is unduly burdensome or expensive’” based on a consideration of “‘whether it is kept in an accessible or inaccessible format.’” Judge Fox found it was unnecessary to apply the eight-factor Zubulake cost-shifting test here because the e-mails in question were not in an inaccessible format.

So, what do you think?  Should the cost-shifting request have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Published less than two months ago in September, this post quickly vaulted to the top as the most viewed post of all time with over 1,400 lifetime views!  I guess the nerve of the plaintiff’s lead counsel struck a nerve with our readers!  Enjoy!

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Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Crispin v. Christian Audigier Inc. – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Until recently, this post was the most viewed of all time; with nearly 1,300 lifetime views, it is still the second most viewed post all time, originally published way back in December 2010.  Enjoy!

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Discoverability of social media content has been a big topic this year, with several cases addressing the issue, including this one, previously discussed on eDiscovery Daily.  The holiday week look back at cases concludes with Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010), which addresses whether ‘private’ data on social networks is discoverable.

This copyright infringement claim brought by artist Buckley Crispin against defendant and designer Christian Audigier, alleges that Audigier used artwork outside the scope of the original oral license between the parties and also sub-licensed the artwork to other companies and individuals (named as co-defendants) without Crispin’s consent.  The defendants served subpoenas on social media providers Facebook, MySpace, and Media Temple, directing them to turn over all communications between Crispin and Audigier, as well as any communications referencing the co-defendants.

Crispin sought to quash the subpoenas, arguing that they sought private electronic communications protected under the Stored Communications Act of 1986 (SCA), prohibiting Electronic Communication Services (ECS) and Remote Computing Services (RCS) providers from turning over those communications, but the motion was denied because Magistrate Judge John E. McDermott determined that Facebook, MySpace, and Media Temple did not qualify for protection from disclosure under the SCA.  Crispin moved for reconsideration with the U.S. District Court for the Central District of California.

District Court Judge Margaret Morrow’s decision partially reversed and partially vacated Judge McDermott’s order, finding that the SCA’s protections (and associated discovery preclusions) include at least some of the content hosted on social networking sites, including the private messaging features of social networking sites protected as private email.  She also concluded that because Facebook, MySpace, and Media Temple all provide private messaging or email services as well as electronic storage, they all qualify as both ECS and RCS providers, with appropriate SCA protections.

However, regarding Facebook wall postings and MySpace comments, Judge Morrow determined that there was insufficient evidence to determine whether these wall postings and comments constitute private communications as the user’s privacy settings for them were less clear and ordered a new evidentiary hearing regarding the portions of the subpoenas that sought those communications.

This opinion sets a precedent that, in future cases, courts may allow protection to social networking and web hosting providers from discovery based on SCA protections as ECS and RCS providers and may consider social media ESI protected, based on the provider’s privacy controls and the individual user’s privacy settings.

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Does Size Matter? – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Apparently, my catchy title worked as, with over 1,150 lifetime views, here is the third most viewed post all time, originally published in March 2011.  Enjoy!

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I admit it, with a title like “Does Size Matter?”, I’m looking for a few extra page views.  😉

I frequently get asked how big does an ESI collection need to be to benefit from eDiscovery technology.  In a recent case with one of my clients, the client had a fairly small collection – only about 4 GB.  But, when a judge ruled that they had to start conducting depositions in a week, they needed to review that data in a weekend.  Without the ability to cull the data and using OnDemand® to manage the linear review, they would not have been able to make that deadline.  So, they clearly benefited from the use of eDiscovery technology in that case.

But, if you’re not facing a tight deadline, how large does your collection need to be for the use of eDiscovery technology to provide benefits?

I recently conducted a webinar regarding the benefits of First Pass Review – aka Early Case Assessment, or a more accurate term (as George Socha points out regularly), Early Data Assessment.  One of the topics discussed in that webinar was the cost of review for each gigabyte (GB).  Extrapolated from an analysis conducted by Anne Kershaw a few years ago (and published in the Gartner report E-Discovery: Project Planning and Budgeting 2008-2011), here is a breakdown:

Estimated Cost to Review All Documents in a GB:

  • Pages per GB:                      75,000
  • Pages per Document:        4
  • Documents Per GB:            18,750
  • Review Rate:                        50 documents per hour
  • Total Review Hours:            375
  • Reviewer Billing Rate:        $50 per hour

Total Cost to Review Each GB:      $18,750

Notes: The number of pages per GB can vary widely.  Page per GB estimates tend to range from 50,000 to 100,000 pages per GB, so 75,000 pages (18,750 documents) seems an appropriate average.  50 documents reviewed per hour is considered to be a fast review rate and $50 per hour is considered to be a bargain price.  eDiscovery Daily provided an earlier estimate of $16,650 per GB based on assumptions of 20,000 documents per GB and 60 documents reviewed per hour – the assumptions may change somewhat, but, either way, the cost for attorney review of each GB could be expected to range from at least $16,000 to $18,000, possibly more.

Advanced culling and searching can enable you to cull out 70-80% of most collections as clearly non-responsive without having to conduct attorney review on those files.  If you have merely a 2 GB collection and assume the lowest review cost above of $16,000 per GB, the use of advanced culling and searching to cull out 70% of the collection can save $22,400 in attorney review costs.  Is that worth it?

So, what do you think?  Do you use eDiscovery technology for only the really large cases or ALL cases?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Number of Pages in Each Gigabyte Can Vary Widely – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  With nearly 1,000 lifetime views, here is the fourth most viewed post all time, originally published in July 2012.  Enjoy!

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A while back, we talked about how the average number of pages in each gigabyte is approximately 50,000 to 75,000 pages and that each gigabyte effectively culled out can save $18,750 in review costs.  But, did you know just how widely the number of pages per gigabyte can vary?

The “how many pages” question comes up a lot and I’ve seen a variety of answers.  Michael Recker of Applied Discovery posted an article to their blog last week titled Just How Big Is a Gigabyte?, which provides some perspective based on the types of files contained within the gigabyte, as follows:

“For example, e-mail files typically average 100,099 pages per gigabyte, while Microsoft Word files typically average 64,782 pages per gigabyte. Text files, on average, consist of a whopping 677,963 pages per gigabyte. At the opposite end of the spectrum, the average gigabyte of images contains 15,477 pages; the average gigabyte of PowerPoint slides typically includes 17,552 pages.”

Of course, each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  So, estimating page counts with any degree of precision is somewhat difficult.

In fact, the same exact content ported into different applications can be a different size in each file, due to the overhead required by each application.  To illustrate this, I decided to conduct a little (admittedly unscientific) study using yesterday’s one page blog post about the Apple/Samsung litigation.  I decided to put the content from that page into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results:

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 10 KB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 36 KB, over 3.5 times larger than the text file;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel workbook – 128 KB, nearly 13 times larger than the text file;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word document – 162 KB, over 16 times larger than the text file;
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 211 KB, over 21 times larger than the text file;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 221 KB, over 22 times larger than the text file.

The Outlook example was probably the least representative of a typical email – most emails don’t have several embedded graphics in them (with the exception of signature logos) – and most are typically much shorter than yesterday’s blog post (which also included the side text on the page as I copied that too).  Still, the example hopefully illustrates that a “page”, even with the same exact content, will be different sizes in different applications.  As a result, to estimate the number of pages in a collection with any degree of accuracy, it’s not only important to understand the size of the data collection, but also the makeup of the collection as well.

So, what do you think?  Was this example useful or highly flawed?  Or both?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Ubiquitous Apple Samsung Case and “Patentgate” – eDiscovery Case Law

When something gets the “gate” suffix added to it, that’s not a good thing.

It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Here is a summary of events as they are described in California Magistrate Judge Paul S. Grewal’s Order from October 2 regarding Apple’s motion for sanctions (which Nokia joined):

“During the massive fact discovery in this case between August 2011 and March 2012, Apple produced copies of a number of its patent license agreements, including a June 2011 license between Apple and Nokia. Apple marked the Apple-Nokia license as “Highly Confidential —Attorney Eyes’ Only” as permitted by the court’s protective order. Apple also produced and marked as “Highly Confidential —Attorney Eyes’ Only” similar patent license agreements it has reached with Ericsson, Sharp, and Philips.”

“As fact discovery transitioned to expert discovery, on March 24, 2012, Samsung’s outside counsel sent Samsung a draft expert report by Dr. David J. Teece. Dr. Teece’s report concerned damages to be awarded for Apple’s alleged infringement of Samsung’s asserted declared-essential patents. Because it addressed highly confidential, attorneys’ eyes only information, the report should have been fully redacted of that information before it was sent. However, intentionally or inadvertently, it was not. The report as distributed included key terms of each of the four Apple license agreements.”

“Samsung’s outside counsel [Quinn Emanuel Urquhart & Sullivan LLP] posted the report on an FTP site that was accessible by Samsung personnel. An email providing instructions to access the FTP site was addressed to the regular client distribution list used by counsel to provide Samsung personnel updates regarding this case. The information was then sent, over several different occasions, to over fifty Samsung employees, including high-ranking licensing executives. Specifically, on at least four occasions between March 24, 2012 and December 21, 2012, Samsung’s outside counsel emailed a copy of some version of the report to Samsung employees, as well as various counsel representing Samsung in courts and jurisdictions outside the United States.”

“At this point, things get murky. According to a declaration from Nokia’s Chief Intellectual Property Officer, Paul Melin, on June 4, 2013, in a meeting between Samsung and Nokia licensing executives, Dr. Seungho Ahn informed Nokia that the terms of the Apple-Nokia license were known to him. Specifically, according to Mr. Melin, Dr. Ahn stated that Apple had produced the Apple-Nokia license in its litigation with Samsung, and that Samsung’s outside counsel had provided his team with the terms of the Apple-Nokia license. Mr. Melin recounts that to prove to Nokia that he knew the confidential terms of the Apple-Nokia license, Dr. Ahn recited the terms of the license, and even went so far as to tell Nokia that “all information leaks.” Mr. Melin also reports that Dr. Ahn and Samsung then proceeded to use his knowledge of the terms of the Apple-Nokia license to gain an unfair advantage in their negotiations with Nokia, by asserting that the Apple-Nokia terms should dictate terms of a Samsung-Nokia license.”

Over the next few weeks, Samsung appealed the order to District Judge Lucy Koh, who was even more critical, finding the disclosures “improper” and Samsung’s lack of cooperation “inexcusable”.  A couple weeks later, Samsung provided sworn declarations, including one by Dr. Ahn that strongly contradicted Nokia’s representation of the June meeting. At a follow up hearing, Judge Grewal said he was not yet convinced that sanctions were warranted, ordering an “in camera” review of documents that Samsung claimed as privileged which Apple doubted that they were legitimately withheld from its lawyers.

As for Quinn Emanuel, who is also facing potential sanctions, partner John Quinn acknowledged the inadvertent disclosure, which was apparently due to an associate at the firm failing to obscure a footnote and two paragraphs while performing a digital redaction of the 150-page report and announced the creation of a new document retention policy to provide a “second pair of eyes” and avoid similar errors in the future (as reported by IT-Lex)

This past Friday, Judge Grewal ordered Samsung and Quinn Emanuel to show cause why they should not be sanctioned, stating “Having finally crawled out from under the boxes, it appears to the undersigned that if anything was breached, it was this court’s protective order, and that sanctions against Samsung and its attorneys are warranted”.  However, he gave Samsung one last chance to defend its actions ordering Samsung to file a brief by December 2 to explain why it should not be sanctioned, while also allowing Apple and Nokia to file a brief to propose appropriate sanctions, with a hearing on the matter set for December 9.

It will be interesting to see what transpires from here.  There have been at least 31 court filings so far this year in this case, so it looks like they’re just getting warmed up.

So, what do you think?  Are Quinn Emanuel and Samsung in serious trouble?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Another New Deliverable from EDRM – eDiscovery Trends

Do you know what container files are?  How about the L600 Code Series?  Do you know common methods for culling data?  What about the difference between a targeted and non-targeted collection strategy?

If you don’t know the answer to these and many other questions related to eDiscovery, you should check out the latest deliverable from the Electronic Discovery Reference Model (EDRM) Metrics team, the EDRM Metrics Glossary.

As noted in their press release announcement, the glossary contains definitions for 90 terms used in connection with the updated EDRM Metrics Model published in June 2013 (which was covered by the blog here).  The EDRM Metrics Model provides a framework for planning, preparation, execution and follow-up of eDiscovery matters and projects by depicting the relationship between the eDiscovery process and how information, activities and outcomes may be measured.

The new glossary was developed by the EDRM Metrics team, led by Kevin Clark and Dera Nevin with special assistance from team members Erin Corken, Eric Derk, Matthew Knouff, Carla Pagan, David Robertson, Bob Rohlf, Jim Taylor, Vicki Towne and Sonia Waiters.

The entire EDRM Metrics Glossary can be found here.

It has been a busy year for EDRM.  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  And, just a couple of weeks ago, EDRM published new Collection Standards for collecting electronically stored information (ESI).  And, there is still almost half a year to go before next year’s annual meeting.  Wow.

So, what do you think?  Will you use the new EDRM Metrics Glossary?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.