Close
Enter your
text here
Posts By :

Doug Austin

eDiscovery Vendors Are Not Immune to eDiscovery Sanctions – eDiscovery Case Law

In Nuance Communications Inc. v. Abbyy Software House et al., no 3:08-cv-02912 (N.D. Cal. May 22, 2013), California District Judge Jeffrey S. White refused Wednesday to dismiss Nuance Communications Inc.’s patent infringement suit against Lexmark International Inc. and Abbyy Software House, and awarded reimbursement of plaintiff’s attorneys’ fees and costs in excess of $130,000 as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy.

In this patent infringement case, this order addressed motions for summary judgment filed by both defendants as well as a motion for attorneys’ fees and costs as part of discovery sanctions filed by the plaintiff.  Judge White found that “these matters are appropriate for disposition without oral argument” and vacated the hearing scheduled two days later to discuss them.

Despite the fact that the plaintiff “went so far as to congratulate ABBYY’s top management on the product” upon its release, “and only sued on the alleged infringement six years later, after the products were already off the market”, Judge White did not find that the “congratulatory e-mail, as a matter of law, establishes that Nuance was both aware of and acquiesced to ABBYY’s packaging, thereby entitling ABBBY to the defense of acquiescence or laches.”  As a result, he denied Abbyy’s motion for summary judgment on the trade dress claims.

With regard to the motions for summary judgment filed by both defendants regarding patent claims, Judge White found “that there remain questions of fact regarding each of the patent infringement claims which preclude the Court from granting either defendant ABBYY’s or Lexmark’s motions for summary judgment”, so those motions were also denied.

As for the plaintiff’s motion for attorneys’ fees and costs as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy, while Abbyy claimed that the production due to “satisfaction of Nuance’s multiple other discovery requests seeking massive amounts of irrelevant information”, Judge White did not find the delay in production justified.  He also noted that Abbyy’s “late production required the extension of time for discovery and Nuance’s retaking of many depositions which had been completed prior to the original close of discovery”. Because of this, he ruled that “sanctions under Federal Rule of Civil Procedure 37 are justified for the expense Nuance incurred in the retaking of otherwise-completed depositions once the Court re-opened discovery due to the late disclosures.”

As a result, Abbyy was ordered to pay $14,544.94 in costs and $120,068.57 in fees (a total of $134,613.51) within 30 days of the order to reimburse the plaintiff for the amount incurred “after the re-opening of discovery due to the late production”.

So, what do you think?  Were the sanctions warranted?  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.

Motion to Compel Dismissed after Defendant Agrees to Conditional Meet and Confer – eDiscovery Case Law

In Gordon v. Kaleida Health, No. 08-CV-378S(F) (W.D.N.Y. May 21, 2013), New York Magistrate Judge Leslie G. Foschio dismissed (without prejudice) the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process.

For over a year, the parties unsuccessfully attempted to agree on how to achieve a cost-effective review of the defendants’ 200,000 to 300,000 emails using a keyword search methodology.  Eventually, in June 2012, the court expressed dissatisfaction with the parties’ lack of progress toward resolving the issues and pointed to the availability of predictive coding, citing its approval in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012) (much more on that case here).

In a September 2012 email, after informing the plaintiffs that they intended to use predictive coding, the defendants objected to the plaintiffs’ ESI consultants participating in discussions with Defendants relating to the use of predictive coding and establishing a protocol.  Later that month, despite the plaintiffs’ requests for discussion of numerous search issues to ensure a successful predictive coding outcome, the defendants sent their ESI protocol to the plaintiffs and indicated they would also send a list of their email custodians to the plaintiffs.  In October 2012, the plaintiffs objected to the defendants’ proposed ESI protocol and filed the motion to compel, also citing Da Silva Moore and noting several technical issues “which should be discussed with the assistance of Plaintiffs’ ESI consultants and cooperatively resolved by the parties”.

Complaining that the defendants refused to discuss issues other than the defendants’ custodians, the plaintiffs claimed that “the defendants’ position excludes Plaintiffs’ access to important information regarding Defendants’ selection of so-called ‘seed set documents’ which are used to ‘train the computer’ in the predictive coding search method.  The defendants responded, indicating they had no objection to a meet and confer with the plaintiffs and their consultants, except for those consultants that were the subject of the defendants’ motion to disqualify (because they had previously provided services to the defendants in the case). With regard to sharing seed set document information, the defendants stated that “courts do not order parties in ESI discovery disputes to agree to specific protocols to facilitate a computer-based review of ESI based on the general rule that ESI production is within the ‘sound discretion’ of the producing party” and noted that the defendants in Da Silva Moore weren’t required to provide the plaintiffs with their seed set documents, but volunteered to do so.

Because the defendants stated that “they are prepared to meet and confer with Plaintiffs and Plaintiffs’ ESI consultants, who are not disqualified”, Judge Foschio ruled that “it is not necessary for the court to further address the merits of Plaintiffs’ motion at this time” and dismissed the motion without prejudice.  It will be interesting to see if the parties can ultimately agree on sharing the protocol or if the question regarding sharing information about seed set documents will come back before the court.

So, what do you think?  Should producing parties be required to share information regarding selection of seed set documents?  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.

Changes to Federal eDiscovery Rules Are One Step Closer – eDiscovery Trends

In April, we referenced Henry Kelston’s report in Law Technology News that another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  Now, the amendments are one step closer to enactment as they have been approved for public comment.

Henry Kelston reports again in Law Technology News (Proposed Discovery Amendments Move to Public Comment), noting that “With minimal discussion and no significant dissent, the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure voted on June 3 to approve for public comment the full slate of proposed amendments” that was previously approved by its Advisory Committee on Civil Rules.

As we summarized previously, potential revisions that have impact to discovery include changes to Rules 26, 30, 31, 33, 34, 36 and 37.  As Kelston reports, “The package also includes changes to Rule 1, adding language to the text to emphasize that the responsibility to use the rules in order ‘to secure the just, speedy and inexpensive determination of every action’ lies with the parties as well as the courts, and inserting comment language to encourage cooperation among parties in applying the rules.”

Apparently, Rule 1 was the only rule to receive votes against it as it received three dissenting votes.  Nonetheless, the proposed amendments were voted on as a package by the standing committee, who voted unanimously in favor of approving the package for publication.

After anticipated publication for public comment later this summer, the public comment period for proposed rules is expected to last six months.  Kelston reports that the “advisory committee, anticipating a high level of public interest in the proposals, plans to hold public hearings in several cities around the U.S.”, with the first hearing “expected to being held in November in Washington, D.C., to coincide with the advisory committee’s next scheduled meeting.”

We’ll keep you posted as the amendments progress.

So, what do you think?  Are you pleased or concerned with the proposed amendments?  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.

In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to Plaintiff – eDiscovery Case Law

In United States ex rel. Becker v. Tools & Metals, Inc., No. 3:05-CV-0627-L (N.D. Tex. Mar. 31, 2013), a qui tam False Claims Act litigation, the plaintiffs sought, and the court awarded, costs for, among other things, uploading ESI, creating a Relativity index, and processing data over the objection that expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client.” The court also approved electronic hosting costs, rejecting a defendant’s claim that “reasonableness is determined based on the number of documents used in the litigation.” However, the court refused to award costs for project management and for extracting data from hard drives where the plaintiff could have used better means to conduct a “targeted extraction of information.”

One of the defendants, Lockheed Martin, appealed the magistrate judge’s award of costs on the grounds that the recovery of expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client,” as allowed under 42 U.S.C. § 1988. As part of its argument, Lockheed suggested the following:

“(1) Spencer’s request to be reimbursed for nearly $1 million in eDiscovery services is unreasonable and the magistrate’s recommendation does not cite any authority holding that a request for expenses in the amount sought by Spencer for eDiscovery is reasonable and reimbursable; (2) an award of $174,395.97 for uploading ESI and creating a search index is unfounded and arbitrary because it requires Lockheed to pay for Spencer’s decision to request ESI in a format that was different from the format that his vendor actually wanted; and (3) the recommended award punishes Lockheed for Spencer’s failure to submit detailed expense records because the actual cost of uploading and creating a search index “may have been substantially less” than the magistrate judge’s $174,395.97 estimate.” {emphasis added}

The district judge found that the “FCA does not limit recovery of expenses to those normally charged to a fee-paying client”: instead, 31 U.S.C. § 3730(d)(1)-(2) provides that “a qui tam plaintiff ‘shall . . . receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.’” The district judge agreed with the magistrate’s finding, which allowed the recovery of these expenses. Although the defendant offered an affidavit of an expert eDiscovery consultant that suggested the amount the plaintiff requested was unreasonable, the magistrate found the costs of data processing and uploading and the creation of a Relativity index permissible; however, she denied the recovery of the more than $38,000 attributable to repairing and reprocessing allegedly broken or corrupt files produced by Lockheed because Lockheed had produced the documents in the requested format. She also found that Spencer “could have and should have simply requested Lockheed to reproduce the data files at no cost rather than embarking on the expensive undertaking of repairing and reprocessing the data.”

Because the plaintiff’s “billing records did not segregate the costs for reprocessing and uploading the data and creating a searchable index,” the magistrate judge apportioned the vendor’s expenses evenly between reprocessing, uploading, and creating an index. The district court agreed and rejected Lockheed’s argument that the actual cost “may have been substantially less” as “purely speculative.”

Lockheed also complained about the magistrate judge’s award of more than $271,000 for electronic hosting costs because the plaintiff failed to show that the expenses were “reasonable and necessarily incurred” and the magistrate’s report did not cite any authority showing that this expense was recoverable. Lockheed also argued that the vendor’s bill of “$440,039 for hosting of and user access to the documents produced in the litigation is unreasonable under the circumstances because Spencer used only five of these documents during the litigation and did not notice a single deposition.” {emphasis added}

The district judge found that the data-hosting expenses were recoverable because the FCA does not limit the types of recoverable expenses. The district judge also agreed with the magistrate judge’s reduction of the hosting fees requested by nearly 40 percent—over Spencer’s objection—by limiting the time frame of recovery to the time before settlement was on the table and the number of database use accounts requested. He rejected Lockheed’s “contention that reasonableness is determined based on the number of documents used in the litigation.” He noted that in this data-intensive age, many documents collected and reviewed may not be responsive or used in the litigation; however, this “does not necessarily mean that the documents do not have to be reviewed by the parties for relevance by physically examining them or through the use of litigation software with searching capability to assist parties in identifying key documents.”

The district court also agreed with the magistrate’s decision to uphold Lockheed’s objection to the amount Spencer spent on extracting ESI from hard drives and related travel costs. The magistrate found that Spencer did not need to review everything on the hard drives; instead, he should have conducted a “targeted extraction of information” like Lockheed did or conduct depositions “to determine how best to conduct more limited discovery” to save time and expense. The magistrate deducted nearly $65,000 from Spencer’s request, awarding him $20,000. The district court opined:

“With the availability of technology and the capability of eDiscovery vendors today in this area, the court concludes that it was unreasonable for Spencer to simply image all of the hard drives without at least first considering or attempting a more targeted and focused extraction. Also, lack of familiarity with technology in this regard is not an excuse and does not relieve parties or their attorneys of their duty to ensure that the services performed and fees charged by third party vendors are reasonable, particularly when recovery of such expenses is sought in litigation. The court therefore overrules this objection.”

Finally, the district court upheld the magistrate judge’s determination that Spencer was not entitled to recover his project management costs. Spencer argued that the “IT management of the electronic database is critical, especially when poor quality electronic evidence is produced. All complex cases of this magnitude require professional IT support.” Because Spencer failed to adequately describe the services provided and because the record did not support the need for a project manager, the magistrate declined to reimburse this expense.

Ultimately, the court reduced the costs by $1,650 and the fees by $85,883, awarding the plaintiffs more than $1.6 million in fees and nearly $550,000 in costs. In closing, the district judge warned the parties that if they filed a motion for reconsideration or to amend the judgment without good cause, he would impose monetary sanctions against them.

So, what do you think?  Were the right cost reimbursements awarded?  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.

Important Considerations when Negotiating Search Terms with Opposing Counsel – eDiscovery Best Practices

Negotiating search terms with opposing counsel has become commonplace to agree on the scope of discovery.  However, when you negotiate terms with the other side, you could be agreeing to produce more than you think.  Craig Ball’s latest article in Law Technology News discusses the issues and tries to answer the question: Are Keywords Just Filters?

Many attorneys still consider attorney eyes-on linear review as the final step to decide relevance of the document collection, but Craig notes that “requesting parties frequently believe that by agreeing to the use of a set of keywords as a proxy for attorney review, those agreed searches serve as a de facto request for production and define responsiveness per se, requiring production if not privileged.”

While producing parties may object to keyword search as a proxy for attorney review, Craig notes that “there’s sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols and drafting memorializing agreements.”

Craig states what more and more people have come to accept, “Objective culling, keyword search, and emerging technologies such as predictive coding make clear that the idealized view of counsel as ultimate arbiter of relevance is mostly myth.”  We discussed a study regarding the reliability of review attorneys in a post here.  “Consequently, as more parties forge detailed agreements establishing objective evidentiary identifiers such as dates, sources, custodians, circulation, data types, and lexical content, litigants and courts grow impatient with the cost and time required for attorney review and reluctant to give it deference.”

Craig’s article discusses the issue in greater depth and even provides a couple of examples of agreed upon language – one where keyword search would be considered as a filter for attorney review, the other where it would be considered as a replacement for review.  His advice to producing parties: “In effect, requesting parties regard an agreement to use queries as an agreement to treat those queries as requests for production. Producing parties who reject this thinking would nevertheless be wise to plan for opponents (and judges) who embrace it.”

It’s a terrific article and I don’t want to steal all his thunder, so click here to check it out.

BTW, Craig is no stranger to this blog – in addition to several of his articles we’ve referenced, we’ve also conducted thought leader interviews with him at LegalTech New York the past three years.  Here’s a link if you want to check those out.

So, what do you think?  Do you negotiate search terms with opposing counsel?  If so, do you use the terms as a filter or a proxy for attorney review?  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.

Export Files and Custom Content Images in FTK Imager – eDiscovery Best Practices

Over the past few weeks, we have talked about the benefits and capabilities of Forensic Toolkit (FTK) Imager from AccessData (and obtaining your own free copy), how to create a disk image and how to add evidence items with FTK Imager for the purpose of reviewing the contents of evidence items, such as physical drives or images that you’ve created.  This week, let’s discuss how to export files and how to create a custom content image of a targeted collection of files.

Sometimes, you don’t want to create an image of the entire drive; instead, you’d like to perform a targeted collection or export individual files to review them.  Let’s discuss how to do that.

Export Files

As we discussed last time, you can Add Evidence Item to add a single evidence item to the evidence tree.  You can select a Physical Drive or Logical Drive, an Image File to view an image file created before or Contents of a Folder, to look at a specific folder.  You can also Add All Attached Devices to add all of the attached physical and logical devices.  When you select one or more evidence items, the selected items will be displayed in the Evidence Tree on the left hand side; navigate to the folder you want and it will display the contents on the right hand side.

Select one or more files (use Ctrl+Click to select multiple files or Shift+Click to select a range of files), then right-click on one of the files to display a popup menu.

Select Export Files to export the selected files, then FTK Imager will prompt you for a folder where the files will be saved.  The files will be saved to that folder.  Exporting files can be useful to pull a copy of selected files out of a forensic image for review.

Create Custom Content Image

As you’ll notice in the previous section, when you display the popup menu, another choice is to Add to Custom Content Image (AD1).  This enables you to start building a targeted list of files to be included in a custom image – useful if you want a specific group of files and not everything on the evidence item.

Any files that you select will then be added to the Custom Content Sources pane in the lower left window.  Continue adding items by repeating this step until you’ve specified or selected all the evidence files you want to add to this Custom Content image.  You can also use the Edit button to open the Wild Card Options dialog and select all files that meet a certain criteria (e.g., “My Documents|*.doc” will collect all files with a .doc extension in any folder named My Documents).

Once you have built your desired list of files, you can then build your Custom Content Image.  Select Create Custom Content Image from the file menu.  You can then repeat the steps for the Create Image, Evidence Item Information, Select Image Destination, Drive/Image Verify Results and Image Summary forms as illustrated in our earlier post How to Create an Image Using FTK Imager.  The resulting image will have an AD1 extension.  Then, this image can be examined just like any other image.

For more information, go to the Help menu to access the User Guide in PDF format.

Next time, we will discuss how to Obtain Protected Files to collect a user’s account information and possible passwords to other files.

So, what do you think?  Have you used FTK Imager as a mechanism for eDiscovery collection?  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.

200,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we may be “just a bit behind” Google in popularity (900 million visits per month), we’re proud to announce that yesterday eDiscoveryDaily reached the 200,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 11 months to get to 200,000 (don’t tell my boss, he’ll expect 300,000 in 5 1/2 months).  When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so here are some recent eDiscovery items of interest.

EDRM Data Set “Controversy”: Including last Friday, we have covered the discussion related to the presence of personally-identifiable information (PII) data (including social security numbers, credit card numbers, dates of birth, home addresses and phone numbers) within the Electronic Discovery Reference Model (EDRM) Enron Data Set and the “controversy” regarding the effort to clean it up (additional posts here and here).

Minnesota Implements Changes to eDiscovery Rules: States continue to be busy with changes to eDiscovery rules. One such state is Minnesota, which has amending its rules to emphasize proportionality, collaboration, and informality in the discovery process.

Changes to Federal eDiscovery Rules Could Be Coming Within a Year: Another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  The United States Courts’ Advisory Committee on Civil Rules voted in April to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

I Tell Ya, Information Governance Gets No Respect: A new report from 451 Research has indicated that “although lawyers are bullish about the prospects of information governance to reduce litigation risks, executives, and staff of small and midsize businesses, are bearish and ‘may not be placing a high priority’ on the legal and regulatory needs for litigation or government investigation.”

Is it Time to Ditch the Per Hour Model for Document Review?: Some of the recent stories involving alleged overbilling by law firms for legal work – much of it for document review – begs the question whether it’s time to ditch the per hour model for document review in place of a per document rate for review?

Fulbright’s Litigation Trends Survey Shows Increased Litigation, Mobile Device Collection: According to Fulbright’s 9th Annual Litigation Trends Survey released last month, companies in the United States and United Kingdom continue to deal with, and spend more on litigation.  From an eDiscovery standpoint, the survey showed an increase in requirements to preserve and collect data from employee mobile devices, a high reliance on self-preservation to fulfill preservation obligations and a decent percentage of organizations using technology assisted review.

We also covered Craig Ball’s Eight Tips to Quash the Cost of E-Discovery (here and here) and interviewed Adam Losey, the editor of IT-Lex.org (here and here).

Jane Gennarelli has continued her terrific series on Litigation 101 for eDiscovery Tech Professionals – 32 posts so far, here is the latest.

We’ve also had 15 posts about case law, just in the last 2 months (and 214 overall!).  Here is a link to our case law posts.

On behalf of everyone at CloudNine Discovery who has worked on the blog over the last 32+ months, thanks to all of you who read the blog every day!  In addition, thanks to the other publications that have picked up and either linked to or republished our posts!  We really appreciate the support!  Now, on to 300,000!

And, as always, 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.

Some Additional Perspective on the EDRM Enron Data Set “Controversy” – eDiscovery Trends

Sharon Nelson wrote a terrific post about the “controversy” regarding the Electronic Discovery Reference Model (EDRM) Enron Data Set in her Ride the Lightning blog (Is the Enron E-Mail Data Set Worth All the Mudslinging?).  I wanted to repeat some of her key points here and offer some of my own perspective directly from sitting in on the Data Set team during the EDRM Annual Meeting earlier this month.

But, First a Recap

To recap, the EDRM Enron Data Set, sourced from the FERC Enron Investigation release made available by Lockheed Martin Corporation, has been a valuable resource for eDiscovery software demonstration and testing (we covered it here back in January 2011).  Initially, the data was made available for download on the EDRM site, then subsequently moved to Amazon Web Services (AWS).  However, after much recent discussion about personally-identifiable information (PII) data (including social security numbers, credit card numbers, dates of birth, home addresses and phone numbers) available within FERC (and consequently the EDRM Data Set), the EDRM Data Set was taken down from the AWS site.

Then, a couple of weeks ago, EDRM, along with Nuix, announced that they have republished version 1 of the EDRM Enron PST Data Set (which contains over 1.3 million items) after cleansing it of private, health and personal financial information. Nuix and EDRM have also published the methodology Nuix’s staff used to identify and remove more than 10,000 high-risk items, including credit card numbers (60 items), Social Security or other national identity numbers (572), individuals’ dates of birth (292) and other personal data.  All personal data gone, right?

Not so fast.

As noted in this Law Technology News article by Sean Doherty (Enron Sandbox Stirs Up Private Data, Again), “Index Engines (IE) obtained a copy of the Nuix-cleansed Enron data for review and claims to have found many ‘social security numbers, legal documents, and other information that should not be made public.’ IE evidenced its ‘find’ by republishing a redacted version of a document with PII” (actually, a handful of them).  IE and others were quite critical of the effort by Nuix/EDRM and the extent of the PII data still remaining.

As he does so well, Rob Robinson has compiled a list of articles, comments and posts related to the PII issue, here is the link.

Collaboration, not criticism

Sharon’s post had several observations regarding the data set “controversy”, some of which are repeated here:

  • “Is the legal status of the data pretty clear? Yes, when a court refused to block it from being made public apparently accepting the greater good of its release, the status is pretty clear.”
  • “Should Nuix be taken to task for failure to wholly cleanse the data? I don’t think so. I am not inclined to let perfect be the enemy of the good. A lot was cleansed and it may be fair to say that Nuix was surprised by how much PII remained.”
  • “The terms governing the download of the data set made clear that there was no guarantee that all the PII was removed.” (more on that below in my observations)
  • “While one can argue that EDRM should have done something about the PII earlier, at least it is doing something now. It may be actively helpful to Nuix to point out PII that was not cleansed so it can figure out why.”
  • “Our expectations here should be that we are in the midst of a cleansing process, not looking at the data set in a black or white manner of cleansed or uncleansed.”
  • “My suggestion? Collaboration, not criticism. I believe Nuix is anxious to provide the cleanest version of the data possible – to the extent that others can help, it would be a public service.”

My Perspective from the Data Set Meeting

I sat in on part of the Data Set meeting earlier this month and there was a couple of points discussed during the meeting that I thought were worth relaying:

1.     We understood that there was no guarantee that all of the PII data was removed.

As with any process, we understood that there was no effective way to ensure that all PII data was removed after the process was complete and discussed needing a mechanism for people to continue to report PII data that they find.  On the download page for the data set, there was a link to the legal disclaimer page, which states in section 1.8:

“While the Company endeavours to ensure that the information in the Data Set is correct and all PII is removed, the Company does not warrant the accuracy and/or completeness of the Data Set, nor that all PII has been removed from the Data Set. The Company may make changes to the Data Set at any time without notice.”

With regard to a mechanism for reporting persistent PII data, there is this statement on the Data Set page on the EDRM site:

“PII: These files may contain personally identifiable information, in spite of efforts to remove that information. If you find PII that you think should be removed, please notify us at mail@edrm.net.”

2.     We agreed that any documents with PII data should be removed, not redacted.

Because the original data set, with all of the original PII data, is available via FERC, we agreed that any documents containing sensitive personal information should be removed from the data set – NOT redacted.  In essence, redacting those documents is putting a beacon on them to make it easier to find them in the FERC set or downloaded copies of the original EDRM set, so the published redacted examples of missed PII only serves to facilitate finding those documents in the original sets.

Conclusion

Regardless of how effective the “cleansing” of the data set was perceived to be by some, it did result in removing over 10,000 items with personal data.  Yet, some PII data evidently remains.  While some people think (and they may have a point) that the data set should not have been published until after an independent audit for remaining PII data, it seems impractical (to me, at least) to wait until it is “perfect” before publishing the set.  So, when is it good enough to publish?  That appears to be open to interpretation.

Like Sharon, my hope is that we can move forward to continue to improve the Data Set through collaboration and that those who continue to find PII data in the set will notify EDRM, so that they can remove those items and continue to make the set better.  I’d love to see the Data Set page on the EDRM site reflect a history of each data set update, with the revision date, the number of additional PII items found and removed and who identified them (to give credit to those finding the data).  As Canned Heat would say, “Let’s Work Together”.

And, we haven’t even gotten to version 2 of the Data Set yet – more fun ahead!  🙂

So, what do you think?  Have you used the EDRM Enron Data Set?  If so, do you plan to download the new version?  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.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later – eDiscovery Case Law

If you think discovery violations by the other side can cause you problems, imagine being this guy.

As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa, No. 10 CRS 1087 filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

After the state responded to the defendant’s March 2010 discovery request, the defendant filed a Motion to Compel Discovery in October 2012, alleging that the state had failed to disclose all discoverable “information in the possession of the state, including law enforcement officers, that tends to undermine the statements of or reflects negatively on the credibility of potential witnesses”.  At the hearing on the motion, the Assistant DA stated that all emails had been produced and the court agreed.

On April 29 of this year, the defendant filed another Motion to Compel Specific Items of Discovery “questioning whether all items within the state’s custody had been revealed, including information with exculpatory or impeachment value”.  Once again, the state assured the court it had met its discovery obligations and the court again denied the motion.

During pre-trial preparation of a former forensic examiner of the Durham Police Department (DPD) and testimony of detectives in the case, it became apparent that a hard drive of the victim’s that was imaged was never turned over to the defense.  On May 15, representatives of the DPD located the image from the victim’s hard drive which had been locked away in a cabinet for eight years.  Once defense counsel obtained a copy of the drive, their forensic examiner retrieved several emails between the victim and her former boyfriend that were exchanged within a few weeks of the murder that belied the prosecution’s portrayal of the defendant as an unfaithful, verbally abusive and controlling husband feared by his wife.  In testimony, the defendant’s forensic examiner testified that had he known about the hard drive in 2005, steps could have been taken to preserve the emails on the email server and that they could have provided a better snapshot of the victim’s email and Internet activity.

This led to the filing of the Motion to Dismiss the Case for Discovery Violations by the defense (link to the filing here).

As reported by WTVD, Judge Orlando Hudson, having been recently ruled against by the North Carolina Court of Appeals in another murder case where he dismissed the case based on discovery violations by Durham prosecutors, denied the defense’s requests for a dismissal or a mistrial.  Sounds like interesting grounds for appeal if the defendant is convicted.

So, what do you think?  Should the judge have granted the defense’s request for a dismissal, or at least a mistrial?  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.

Never Mind! Plaintiffs Not Required to Use Predictive Coding After All – eDiscovery Case Law

Remember EORHB v. HOA Holdings, where, in a surprise ruling, both parties were instructed to use predictive coding by the judge?  Well, the judge has changed his mind.

As reported by Robert Hilson in the Association of Certified E-Discovery Specialists® (ACEDS) web site (subscription required), Delaware Chancery Court Vice Chancellor J. Travis Laster has revised his decision in EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. May 6, 2013).  The new order enables the defendants to continue to utilize computer assisted review with their chosen vendor but no longer requires both parties to use the same vendor and enables the plaintiffs, “based on the low volume of relevant documents expected to be produced” to perform document review “using traditional methods.”

Here is the text of this very short order:

WHEREAS, on October 15, 2012, the Court entered an Order providing that, “[a]bsent a modification of this order for good cause shown, the parties shall (i) retain a single discovery vendor to be used by both sides, and (ii) conduct document review with the assistance of predictive coding;”

WHEREAS, the parties have proposed that HOA Holdings LLC and HOA Restaurant Group LLC (collectively, “Defendants”) retain ediscovery vendor Kroll OnTrack for electronic discovery;

WHEREAS, the parties have agreed that, based on the low volume of relevant documents expected to be produced in discovery by EORHB, Inc., Coby G. Brooks, Edward J. Greene, James P. Creel, Carter B. Wrenn and Glenn G. Brooks (collectively, “Plaintiffs”), the cost of using predictive coding assistance would likely be outweighed by any practical benefit of its use;

WHEREAS, the parties have agreed that there is no need for the parties to use the same discovery review platform;

WHEREAS, the requested modification of the Order will not prejudice any of the parties;

NOW THEREFORE, this –––– day of May 2013, for good cause shown, it is hereby ORDERED that:

(i) Defendants may retain ediscovery vendor Kroll OnTrack and employ Kroll OnTrack and its computer assisted review tools to conduct document review;

(ii) Plaintiffs and Defendants shall not be required to retain a single discovery vendor to be used by both sides; and

(iii) Plaintiffs may conduct document review using traditional methods.

Here is a link to the order from the article by Hilson.

So, what do you think?  Should a party ever be ordered to use predictive coding?  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.