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Doug Austin

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review – eDiscovery Case Law

During this Thanksgiving week, we at eDiscovery Daily thought it would be a good time to catch up on some cases we missed earlier in the year.  So, we will cover a different case each day this week.  Enjoy!

In the case In re Actos (Pioglitazone) Products Liability Litigation, No. 6:11-md-2299, (W.D. La. July 27, 2012), a case management order applicable to pretrial proceedings in a multidistrict litigation consolidating eleven civil actions, the court issued comprehensive instructions for the use of technology-assisted review (“TAR”).

In an order entitled “Procedures and Protocols Governing the Production of Electronically Stored Information (“ESI”) by the Parties,” U.S. District Judge Rebecca Doherty of the Western District of Louisiana set forth how the parties would treat data sources, custodians, costs, and format of production, among others. Importantly, the order contains a “Search Methodology Proof of Concept,” which governs the parties’ usage of TAR during the search and review of ESI.

The order states that the parties “agree to meet and confer regarding the use of advanced analytics” as a “document identification mechanism for the review and production of . . . data.” The parties will meet and confer to select four key custodians whose e-mail will be used to create an initial sample set, after which three experts will train the TAR system to score every document based on relevance. To quell the fears of TAR skeptics, the court provided that both parties will collaborate to train the system, and after the TAR process is completed, the documents will not only be randomly sampled for quality control, but the defendants may also manually review documents for relevance, confidentiality, and privilege.

The governance order repeatedly emphasizes that the parties are committing to collaborating throughout the TAR process and requires that they meet and confer prior to contacting the court for a resolution.

So, what do you think?  Should more cases issue instructions like this?  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.

Email Metadata Leads to Petraeus Resignation – eDiscovery Trends

As reported on by Megan Garber of The Atlantic, email location data led FBI investigators to discover CIA director David Petraeus’ affair with Paula Broadwell that led to his resignation.  The irony is that FBI investigators weren’t aware of, or looking for, information regarding the affair.  Here’s what happened, according to the article.

“Sometime in May, The New York Times reports, Broadwell apparently began sending emails to Jill Kelley, the Petraeus acquaintance (her precise connection to the family isn’t yet fully clear) — and those emails were “harassing,” according to Kelley. The messages were apparently sent from an anonymous (or, at least, pseudonymous) account. Kelley reported those emails to the FBI, which launched an investigation — not into Petraeus, but into the harassing emails.”

“From there, the dominoes began to fall. And they were helped along by the rich data that email providers include in every message they send and deliver — even on behalf of its pseudonymous users. Using the ‘metadata footprints left by the emails,’ the Wall Street Journal reports, ‘FBI agents were able to determine what locations they were sent from. They matched the places, including hotels, where Ms. Broadwell was during the times the emails were sent.’ From there, ‘FBI agents and federal prosecutors used the information as probable cause to seek a warrant to monitor Ms. Broadwell’s email accounts.’”

Once the investigators received that warrant, they “learned that Ms. Broadwell and Mr. Petraeus had set up private Gmail accounts to use for their communications, which included explicit details of a sexual nature, according to U.S. officials. But because Mr. Petraeus used a pseudonym, agents doing the monitoring didn’t immediately uncover that he was the one communicating with Ms. Broadwell.”

Ultimately, monitoring of Ms. Broadwell’s emails identified the link to Mr. Petraeus and the investigation escalated, despite the fact that the investigators “never monitored Mr. Petraeus’s email accounts”.

Needless to say, if the Director of the CIA can be tripped up by email metadata from an account other than his own, it could happen to anyone.  It certainly gives you an idea of the type of information that is discoverable not just from opposing parties, but third parties as well.

So, what do you think?  Have you ever identified additional sources of data through discovery of email metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to Perry Segal’s e-Discovery Insights blog for the tip on this story!

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.

Searching for Email Addresses Can Have Lots of Permutations Too – eDiscovery Best Practices

Tuesday, we discussed the various permutations of names of individuals to include in your searching for a more complete result set, as well as the benefits of proximity searching (broader than a phrase search, more precise than an AND search) to search for names of individuals.  Another way to identify documents associated with individuals is through their email addresses.

Variations of Email Addresses within a Domain

You may be planning to search for an individual based on their name and the email domain of their company (e.g., daustin@cloudnincloudnine.comm), but that’s not always inclusive of all possible email addresses for that individual.  Email addresses for an individual’s domain might appear to be straightforward, but there might be aliases or other variations to search for to retrieve emails to and from that individual at that domain.  For example, here are three of the email addresses to which I can receive email as a member of CloudNine Discovery:

To retrieve all of the emails to and from me, you would have to include all of the above addresses (and others too).  There are other variations you may need to account for, as well.  Here are a couple:

  • Jim Smith[/O=FIRST ORGANIZATION/OU=EXCHANGE ADMINISTRATIVE GROUP (GZEJCPIG34TQEMU)/CN=RECIPIENTS/CN=JimSmith] (legacy Exchange distinguished name from old versions of Microsoft Exchange);
  • IMCEANOTES-Andy+20Zipper_Corp_Enron+40ECT@ENRON.com (an internal Lotus Notes representation of an email address from the Enron Data Set).

As you can see, email addresses from the business domain can be represented several different ways, so it’s important to account for that in your searching for emails for your key individuals.

Personal Email Addresses

Raise your hand if you’ve ever sent any emails from your personal email account(s) through the business domain, even if it’s to remind you of something.  I suspect most of your hands are raised – I know mine is.  Identifying personal email accounts for key individuals can be important for two reasons: 1) those emails within your collection may also be relevant and, 2) you may have to request additional emails from the personal email addresses in discovery if it can be demonstrated that those accounts contain relevant emails.

Searching for Email Addresses

To find all of the relevant email addresses (including the personal ones), you may need to perform searches of the email fields for variations of the person’s name.  So, for example, to find emails for “Jim Smith”, you may need to find occurrences of “Jim”, “James”, “Jimmy”, “JT” and “Smith” within the “To”, “From”, “Cc” and “Bcc” fields.  Then, you have to go through the list and identify the email addresses that appear to be those for Jim Smith.  Any email addresses for which you’re not sure whether they belong to the individual or not (e.g., does jsmith1963@gmail.com belong to Jim Smith or Joe Smith?), you may need to retrieve and examine some of the emails to make that determination.  If he uses nicknames for his personal email addresses (e.g., huggybear2012@msn.com), you should hopefully be able to identify those through emails that he sends to his business account.

In its Email Analytics module, FirstPass® makes it easy to search for email addresses for an individual – simply go to Global Email Search and type in the string to retrieve all email addresses in the collection with that string.  It really streamlines the process of identifying email addresses for an individual and then reviewing those emails.

Whether or not your application simplifies that process, searching by email address is another way to identify documents pertaining to a key individual.  The key is making sure your search includes all the email addresses possible for that individual.

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

What’s in a Name? Potentially, a Lot of Permutations – eDiscovery Best Practices

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 Smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in OnDemand®, CloudNine Discovery’s online review tool.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is usually best.

Thursday, we will talk about another way to retrieve documents that mention key individuals – through their email addresses.  Same bat time, same bat channel!

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

Judge Carter Refuses to Recuse Judge Peck in Da Silva Moore – eDiscovery Trends

It seems like ages ago when New York Magistrate Judge Andrew J. Peck denied the motion of the plaintiffs in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) to recuse himself in the case.  It was all the way back in June.  Now, District Court Judge Andrew L. Carter, Jr. has ruled on the plaintiff’s recusal request.

In his order from last Wednesday (November 7), Judge Carter stated as follows:

“On the basis of this Court’s review of the entire record, the Court is not persuaded that sufficient cause exists to warrant Magistrate Judge Peck’s disqualification…Judge Peck’s decision accepting computer-assisted review … was not influenced by bias, nor did it create any appearance of bias.”

Judge Carter also noted, “Disagreement or dissatisfaction with Magistrate Judge Peck’s ruling is not enough to succeed here…A disinterested observer fully informed of the facts in this case would find no basis for recusal”.

Since it has been a while, let’s recap the case for those who may have not been following it and may be new to the blog.

Back in February, Judge Peck issued an opinion making this case likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted the plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck’s rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup’s production of electronically stored information.  Finally, on June 15, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal, which Judge Carter has now upheld.

So, what do you think?  Will Judge Carter’s decision not to recuse Judge Peck restart the timetable for predictive coding on this case?  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.

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do – eDiscovery Case Law

In Murray v. Coleman, No. 08-CV-6383, 2012 U.S. Dist. (W.D.N.Y. Sept. 12, 2012), the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

In his motion, the plaintiff asserted that the defendants “never provided a ‘chronological e-mail history of any kind.’” In response, defense counsel “simply aver[red] that after plaintiff filed this motion to compel, he provided plaintiff with…‘the documents sought’ and, therefore, plaintiff’s motion is ‘moot.’” The plaintiff responded to the defendant’s reply, asserting that “‘virtually no electronic records [were] included’ in defendant’s discovery responses.”

Because the defense counsel’s response to the plaintiff’s motion was “terse,” New York Magistrate Judge Jonathan Feldman stated that it was “difficult . . . to determine whether defendants have in fact produced all relevant electronic records and e-mails as demanded by plaintiff.” Lacking in defense counsel’s response were “details regarding how and where electronically stored information (“ESI”) is held, what efforts were made to preserve relevant ESI, and the method used by defendants to locate, search and produce relevant ESI.”

As such, Judge Feldman “construe[d the defendants’] response as a claim that ESI, including e-mails, [were] not . . . produced because the data demanded [was] destroyed or [was] not ‘reasonably accessible’” pursuant to Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure, which requires a producing party to “show that the information is not reasonably accessible because of undue burden or cost.”

Therefore, because the defendants had not sufficiently demonstrated that the ESI was not reasonably accessible, Judge Feldman ordered as follows:

“Defense counsel shall file an affidavit of a person with direct knowledge of DOCS’s document and e-mail retention system stating: (1) the document/e-mail retention policy used by DOCS currently and during the relevant time periods, (2) the dates of e-mails “reasonably accessible” for production in this litigation, (3) the back up or legacy system, if any, used by DOCS to preserve or archive e-mails that are no longer “reasonably accessible” and whether responsive documents or data may potentially be found on such back up or legacy systems, (4) whether accessing archived or back up e-mails would be unduly burdensome or costly and why, and (5) the date when a litigation hold or document preservation notice was put in place by DOCS regarding this matter and either a copy of or a description of the preservation or litigation hold utilized by DOCS.”  [emphasis added]

Judge Feldman ordered the defense to provide this affidavit within 30 days.

So, what do you think?  Was this an appropriate ruling given the situation?  Or did the defendant deserve sanctions?  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.

ARMA/Forrester Survey: Only One in Eight Records Managers Trusts Their ESI – eDiscovery Trends

According to the Forrester Research and ARMA International Records Management Online Survey, Q3 2012, only 12 percent of records managers are “very confident” that, if challenged, their organization could demonstrate that their electronically stored information (ESI) is “accurate, accessible, complete and trustworthy”.  That’s less than one in eight.

The report, co-authored by ARMA and Forrester Research, contains the results of a survey of 354 records managers.

Some of the less than optimistic comments from the report include: “Records managers report abysmally low e-discovery confidence…This bleak data point represents an even lower e-discovery confidence rate than captured in past surveys…[S]urvey data show that integrated legal hold – a critical component needed for successful defensible disposition – is simply missing in organizations.”

And this: “Organizations aren’t sure of the business value or legal obligations to preserve content so they simply continue to accumulate digital debris, slowing down overtaxed systems, adding to storage costs, and posing potential additional litigation and investigation burdens over time.”

Some of the reasons cited as obstacles to improved records management include:

  • Poor systems integration – 74 percent of respondents;
  • Inadequate budget – 73 percent;
  • Lack of experienced staff – 64 percent;
  • Outdated policies or procedures – 55 percent; and
  • Lack of clear leadership – 54 percent.

So, what are organizations doing to address the obstacles?  Here are some indications:

  • 40 percent of survey respondents expect that their organization’s overall records management spending will increase at least 5% from 2012 to 2013;
  • 71 percent currently have implementation plans underway, or plans to implement records management technology within the next year;
  • 81 percent consider an improvement in records management policy consistency an important objective for their organization.

A copy of the report is available here from Forrester Research for $499.

Since, according to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months, you would think organizations would be making greater strides in implementing information governance programs.  Of course, many information governance industry initiatives are still in relative infancy, including the Information Governance Reference Model (IGRM) Project of the Electronic Discovery Reference Model (EDRM), which was started a mere two years ago (click here for information on their newest version).  It appears that organizations still have a long way to go to get their data under control.

So, what do you think?  What, if any, records management obstacles are your organization facing?  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.

Five Reasons to Outsource Litigation Support – eDiscovery Best Practices

When you’re Jackson Lewis and your firm’s national eDiscovery counsel is noted eDiscovery expert and founder of the new Electronic Discovery Best Practices (EDBP.com) (as well as previous thought leader interviewee on this blog) Ralph Losey, it would make sense that you would want to handle all of your litigation support work in house.  Right?  Wrong.

As Losey writes in the Law Technology News article Five Reasons to Outsource Litigation Support, in June, Jackson Lewis “decided to outsource to a vendor all of our nonlegal electronic data discovery work that our litigation support department had been providing to our clients.”  Losey identifies five reasons “[b]ased on our experience” why your organization should consider outsourcing.

  1. Core Competency: Losey asks the question “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”  Collection, forensic analysis, processing, database creation and other related tasks are highly technical, nonlegal tasks that are the core competency of eDiscovery vendors, not law firms.  Losey notes that aside from the outsourcing of document review, the eDiscovery market is not “engaged in the practice of law”.
  2. Complexity: Losey notes that eDiscovery work “is not equivalent to making copies, as some lawyers think, and should not be done in-house, especially when there are so many good companies that specialize in this kind of work.”  Would you go to a general practitioner for heart bypass surgery?  Some tasks are best performed by specialists.
  3. Cost Savings: Keeping a litigation support business staffed with qualified people and current with hardware and software technology is expensive – it also adds considerably to firm overhead.  Losey notes that you “cannot give lawyers yesterday’s technology and expect them to compete.”  Would you give your attorneys out of date books on state and federal statutes for practicing law?  He also says “you can leverage your mass buying power and negotiate a low rate for all of your clients” that use your selected vendor.  Frankly, I’m surprised more firms don’t consider this – it’s a win-win for all as many vendors are willing to discount services for continual business.
  4. Risk: Losey states that “[m]istakes can happen, especially when a firm is operating outside of its core competency” and that firms often build the risk into their rates, which can penalize clients who don’t use the nonlegal services.  Again, giving the work to the organization best qualified to perform the work – the eDiscovery vendor – only makes sense.
  5. Ethics: The Comment to ABA Model Rule of Professional Responsibility 5.7 says, “When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems.”  Just because “everyone does it” doesn’t make it right.  Losey notes that some ethical issues can be raised by outsourcing as well, but that’s true of any profession and that Jackson Lewis uses “whatever vendor the client wants” with direct billing from vendor to client.  Most vendors like that arrangement as well, it streamlines on time payment of invoices to the vendor for work performed.

So, what do you think?  How does your organization handle litigation support?  Do you outsource it or do you handle it in house?  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.

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded – eDiscovery Case Law

In Carrillo v. Schneider Logistics, Inc. (C.D. Cal. Oct. 5, 2012), California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”.  The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Sequence of Events of Defendant’s Discovery Failures

In this class action wage and hour case against the defendants (a Wal-Mart provider), the plaintiffs filed a Motion to Compel responses to the first set of requests for production of documents.  Here’s a sequence of events that led to the filing of the motion (all dates in 2012):

  • On February 1, plaintiffs propounded their First Set of Requests for Production of Documents to the defendant;
  • The defendant provided its initial responses on March 12 and supplemental responses on April 4;
  • The plaintiffs, believing that the defendant’s document production was incomplete, began a series of meet and confers with the defendant, and expressed concern that the defendant had not produced all responsive non-privileged documents;
  • On May 31, the plaintiffs filed a Motion to Compel regarding the defendant’s failure to produce documents relating to Wal-Mart and their alleged failure to conduct a proper search and produce responsive documents;
  • After the Court ordered the parties to further meet and confer, the parties resolved their dispute and submitted a proposed order, which resulted in the Court ordering the defendant to supplement its responses to the requests for production of documents and produce responsive documents, including those relating to Wal-Mart. The defendant was also ordered to produce a custodian of records and person most knowledgeable regarding Schneider’s document retention policies;
  • Following the Court’s Order, the defendant produced an additional 23,000 documents, many of which related to categories of documents the defendant previously claimed did not exist;
  • The defendant also designated two employees to address the defendant’s retention policies and its efforts to search for responsive documents. When these witnesses appeared for their depositions, however, they were unable to answer many basic questions regarding the defendant’s document retention policies and the defendant’s search for responsive documents;
  • On July 10, the plaintiffs deposed an area manager for the defendant who testified that she had deleted various emails, including reports, continued to delete documents up to the date of her deposition, and that she had never received an instruction advising her not to delete such emails;

This led the plaintiffs to file their Motion to Compel on August 23, as they identified a “substantial number of emails and surveillance videotapes which had not been produced”.

Judge Bristow’s Ruling

Noting that the “record reflects – at best – a haphazard search for records”, Judge Bristow stated that the defendant had “disregarded its obligation to conduct a reasonably diligent search for responsive documents, including, as explained below, electronically stored information.”  Noting that at least 20 employees of the defendant regularly used “@wal-mart.com” email accounts for conducting business, the judge also noted that the defendant had still not produced any emails from those accounts and discounted the defendant’s contention that it had “no control” over those documents since the defendant’s employees used the Wal-Mart email address as their primary work email account.  The judge also ruled that the defendant had withheld surveillance videotapes and that it had not taken adequate steps to preserve documents.

As a result, the defendant was ordered to retain an outside vendor to collect ESI and email correspondence within 45 days and produce all responsive videotapes within 10 days.  The plaintiff was given 11 days to file a brief detailing their claim for attorneys’ fees and costs, with the defendant having two weeks to respond regarding the reasonableness of the stated costs.  Judge Bristow did deny the plaintiff’s request for other sanctions without prejudice as “premature”.

So, what do you think?  Have you seen other cases where parties were ordered to retain an outside vendor?  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 Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

As was the case in Mailhoit v. Home Depot previously, Ohio Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012) that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Background on Defendant’s Request

In this employment discrimination action where the plaintiff alleged that male supervisors, senior youth leaders, and coworkers sexually harassed her, the defendant filed a Motion to Compel in August to compel the plaintiff to give them her user names and passwords for each of the social media sites she uses.  The defendant contended that information on the plaintiff’s social media sites “may be relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional state”, indicating their belief that the plaintiff “is not currently impaired by serious emotional distress and is enjoying life”.

The plaintiff contended that the defendant’s discovery request was “overbroad and unduly burdensome” and that the defendant had “offered no evidence or other reason to back up” their speculation that there might be relevant information in the private sections of her social media sites.  The defendant countered that the plaintiff testified as to several impacts of the alleged sexual harassment and that she cannot regularly update her Facebook account, yet her Facebook public pages contained evidence that the plaintiff still regularly updates her account.

Judge Abel’s Ruling

Judge Abel acknowledged that “[r]elevant information in the private section of a social media account is discoverable”, but that “a litigant has no right to serve overbroad discovery requests that seek irrelevant information”.  Comparing the request of electronic social media data to that of hard copy documents, Judge Abel stated:

“The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files. Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”

Judge Abel did note that the plaintiff “remains under an obligation to preserve all the information” in her social media accounts, so the defendants would presumably be able to access that information through requests for specific relevant information.

So, what do you think?  How does this case compare to other cases (such as these three cases) where user names and passwords to social media sites were granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

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