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Doug Austin

Are You Requesting the Best Production Format for Your Case? – eDiscovery Best Practices

One of the blogs I read regularly is Ball in your Court from Craig Ball, a previous thought leader interviewee on this blog.  His post from last Tuesday, Are They Trying to Screw Me?, is one that all attorneys that request ESI productions should read.

Ball describes a fairly typical proposed production format, as follows:

“Documents will be produced as single page TIFF files with multi-page extracted text or OCR.  We will furnish delimited IPRO or Opticon load files and will later identify fielded information we plan to exchange.”

Then, he asks the question: “Are they trying to screw you?”  Answer: “Probably not.”  But, “Are you screwing yourself by accepting the proposed form of production?  Yes, probably.”

With regard to producing TIFF files, Ball notes that “Converting a native document to TIFF images is lobotomizing the document.”  The TIFF image is devoid of any of the metadata that provides valuable information about the way in which the document was used, making analysis of the produced documents a much more difficult effort.  Ball sums up TIFF productions by saying “Think of a TIFF as a PDF’s retarded little brother.  I mean no offense by that, but TIFFs are not just differently abled; they are severely handicapped.  Not born that way, but lamed and maimed on purpose.  The other side downgrades what they give you, making it harder to use and stripping it of potentially-probative content.”

Opposing counsel isn’t trying to screw you with a TIFF production.  They just do it because they always provide it that way.  And, you accept it that way because you’ve always accepted it that way.  Ball notes that “You may accept the screwed up proposal because, even if the data is less useful and incomplete, you won’t have to evolve.  You’ll pull the TIFF images into your browser and painstakingly read them one-by-one, just like good ol’ paper; all-the-while telling yourself that what you didn’t get probably wasn’t that important and promising yourself that next time, you’ll hold out for the good stuff—the native stuff.”

We recently ran a blog series called First Pass Review – Of Your Opponent’s Data.  In that series, we discussed how useful that Early Data Assessment/FirstPass Review applications can be in reviewing your opponent’s produced ESI.  At CloudNine Discovery, we use FirstPass®, powered by Venio FPR™ for first pass review – it provides a number of mechanisms that are useful in analyzing your opponent’s produced data.  Capabilities like email analytics and message thread analysis (where missing emails in threads can be identified), synonym searching, fuzzy searching and domain categorization are quite useful in developing an understanding of your opponents production.  However, these mechanisms are only as useful as the data they’re analyzing.  Email analytics, message thread analysis and domain categorization are driven by metadata, so they are useless on TIFF/OCR/data productions.  You can’t analyze what you don’t have.

It’s time to evolve.  To get the most information out of your opponent’s production, you need to request the production in native format.  Opponents are probably not trying to screw you by producing in TIFF format, but you are screwing yourself if you decide to accept it in that format.

So, what do you think?  Do you request native productions from your opponents?  If not, why not?  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 Appeals Sanctions, Only to See Sanction Amount Raised on Appeal – eDiscovery Case Law
 

In Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), (D. Minn. Sept. 18, 2012), the defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

Background

In this breach of contract case, the magistrate court granted the plaintiff’s motion in 2010 to compel discovery of several specific document requests after the defendants failed to comply with those requests.  After the defendant had still failed to comply six months later, the plaintiff motioned the court for sanctions due to the defendant’s failure to comply with the court’s previous 2010 order. While granting the plaintiff’s motion for sanctions, the magistrate judge also ordered that the parties try to cooperate to agree on the handling of eDiscovery in the case. Failing an agreement, each side would then be permitted to submit a proposal for the court to use to establish an eDiscovery protocol.

Forensic Examination of Defendant’s Computers

When the parties could not come to an agreement, they did so, and the court chose the plaintiff’s proposal, appointing a computer forensic expert to image and examine the defendant’s computers, allocating the forensic discovery costs between the parties.  The forensic examination identified several occurrences of spoliation by the defendant, including commercial wiping software found on one custodian’s computer with “six deletions occurring after both the commencement of the lawsuit and issuance of the ESI Protocol Order” and concealment of an encrypted volume and deletion of a PST file by a vice president of the company.

Sanctions Ordered by Magistrate Court

After reviewing the facts and sanctions at the Court's disposal, the Magistrate Judge recommended that:

(1)   An adverse inference instruction be given with regard to the defendant’s destruction of evidence;

(2)   The defendant be held in civil contempt, and ordered to pay $25,000 to the Court and $475,000 to the plaintiff.  With regard to the $475,000, the Court found that amount to constitute reasonable expenses under Fed. R. Civ. P. 37(b)(2)(C) because "it encompasses much of CFS's current unpaid invoices, some past paid amounts by Multifeeder to CFS, and reasonable legal fees and costs for litigating this discovery debacle."

Both Parties Object to Sanction Amount

The defendant objected with regard to the finding of spoliation by the two individuals, objected that the $475,000 sanction was too high because the plaintiff was partly responsible for the “massive” costs for the forensic examination and appealed to the district court.  In turn, the plaintiff also objected to the sanction amount, indicating that the “award fails to adequately cover the reasonable expenses it incurred as a result of [the defendant’s] conduct” and asked that the total amount be raised to over $692,000.

Sanction Amount is Increased, not Decreased

Judge Tunheim upheld the finding of spoliation against the two individuals.  With regard to the sanction amount, Judge Tunheim noted that “the recommended $475,000 sanction is insufficient” and found as follows:

“The Court has also considered that this is not the first sanctions order in this case; British's repeated violations of the Court's discovery orders warrant significant sanctions to deter British from further misconduct. Therefore, the Court finds that a sanction of $600,000 represents reasonable expenses and attorneys' fees because it encompasses much of CFS's current unpaid invoices, at least some past paid amounts by Multifeeder to CFS, and reasonable legal fees and expenses in litigating this discovery dispute.” [emphasis added]

Judge Tunheim also ordered the defendant to pay “half of the sanctions award, $300,000, within 90 days of the date of this Order. The second half of the sanctions award will be payable no later than 120 days of the date of this Order.”

So, what do you think?  Should the defendant appeal again or quit before they get further behind?  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.

EDRM Announces Version 3 of the IGRM for Information Governance – eDiscovery Trends

This week, the Electronic Discovery Reference Model (EDRM) Project, through its Information Governance Reference Model (IGRM) Project, announced today the release of version 3.0 of the IGRM.  As their press release notes, “The updated model now includes privacy and security as primary functions and stakeholders in the effective governance of information. This release of the IGRM reflects broad industry support and collaboration across the expert communities of ARMA International and CGOC (Compliance, Governance and Oversight Council).”

The importance of information governance to the eDiscovery process is clear – when organizations do not have a clear plan for managing their information and defensibly disposing of expired information at the right time, costs for managing that information to respond to discovery requests soar.  The IGRM Project’s mission is to “provide a common, practical framework enabling organizations to establish information governance programs that more effectively deal with the rising volume and diversity of information and the risks, costs, and complications this presents”.  Information Governance is an organization-wide process, affecting Legal, Records, IT and Business organizations within the organization.

The IGRM project was started a mere two years ago, in 2010.  Why does the IGRM exist?  Their early survey of corporate practitioners, conducted jointly with the CGOC, makes it clear:

  • 100% of respondents stated that defensible disposal was the primary purpose of information governance;
  • 66% of IT and 50% of RIM (records management) respondents said their current responsibility model for information governance was ineffective; and
  • 80% of respondents across Legal, IT, and RIM said they had little or very weak linkage between legal obligations for information/data and records management.

As the latest press release notes, “IGRM v3.0 now incorporates Privacy and Security as key stakeholders, reflecting the increasing importance of Privacy and Security duties and the efficiencies organizations can achieve when privacy and security efforts are more holistically integrated with other essential governance practices and programs.”  The diagram above reflects the change – there is a new stakeholder group in blue within the diagram, representing Privacy & Security.

As for other details detailing the IGRM v3.0 update, a white paper is available on the EDRM site (with a link available to download a PDF of the white paper).

EDRM (via the IGRM project) and CGOC have been busy on the Information Governance front this year, as noted by these past stories on our blog here, here and here.  Kudos to all involved in these efforts!

So, what do you think?  Where does your organization stand with regard to information governance efforts?  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.

Want to be an eDiscovery PM? Roll Up Your Sleeves. – eDiscovery Trends
 

I received an intriguing announcement from The Organization of Legal Professionals (OLP) regarding a new five month intensive certificate course in eDiscovery Project Management.  The first course begins on November 13 and runs through the end of April, meeting essentially weekly with all classes recorded so that you can catch up if you miss one.  Here are some details about the program.

It’s a seven course program that focuses on the “practical application of legal, IT and project management skills to interactive scenarios in an interactive, web-based, live simulation environment.”  The seven courses cover the following topics:

  • Fundamentals of eDiscovery
  • Advanced eDiscovery
  • eDiscovery Project Management
  • Legal Project Management
  • The Phases of the Electronic Discovery Reference Model (EDRM)
  • Design and Implementation of eDiscovery Cost Controls
  • International eDiscovery, eDisclosure and Information Governance

There is also an eDiscovery Case Management Lab following completion of the seven courses, a hands-on workshop which “reviews the student’s knowledge of the framework, models and practices for managing a real-life case”.

I contacted Chere Estrin, Managing Administrator for OLP and asked her how this training program differs from other programs out there and what are OLP’s goals for the program.  Here are some of her comments:

  • OLP has its roots in eDiscovery.  Our core business is eDiscovery and legal technology.
  • Our program is designed around the eDiscovery practical assignments that students are most likely to receive.
  • OLP's instructors are well-known in the eDiscovery field and are experienced teachers.
  • OLP offers students a free one-year membership to OLP that gives students approximately 100 free webinars throughout the year plus other valuable benefits.
  • OLP students can return throughout their lifetime to audit any of the eDiscovery certificate courses at no charge.
  • OLP has an outstanding Board of Governors and Advisory Council comprised of top experts in eDiscovery who work to promote quality continuing legal education.
  • OLP certificate students can take the eDiscovery Certification Exam (CeDP) and prep course at a significant discount as long as they meet the requirements to sit for the exam such as the necessity of having a minimum of 3 years hands-on eDiscovery experience.
  • OLP offers a job placement assistance program for life.

Chere noted that “[t]here is only one other program that I know of that is similar”, which is the program at Bryan University; however, according to her, there is a “huge difference in price” ($4,000 for the 5-month OLP program compared to $20,000 for the 8-month Bryan University program).  She also notes that there is a no-interest payment plan available for the OLP program.  As for the goal of the program, she notes that it is the same as the goal for all OLP programs – “to offer top, quality education to as many legal professionals as possible at reasonable and affordable costs.”

It will be interesting to see how the program is received and perhaps talk to a few of the students from the initial program, so hopefully we’ll be able to follow up in a few months.

So, what do you think?  Do you need eDiscovery project management training?  If so, would a program like this be of interest to you?  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.

Proximity Searches Can Be the Right Balance of Recall and Precision – eDiscovery Best Practices
 

When performing keyword searching, the challenge to performing those searches effectively is to balance recall (retrieving responsive documents with hits) and precision (not retrieving too many non-responsive documents with hits).  A search that has 100% precision will contain only responsive documents; however, that does not mean that all of the responsive documents have been retrieved.  A search that has 100% recall will contain all of the responsive documents in the collection; however, it may also contain a large number of non-responsive documents, which can be drive up review costs.  So, how to perform searches that effectively balance recall and precision?

One way is through proximity searching.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  It’s more precise than an AND search (i.e., termA and termB) with more recall than a phrase search (i.e., “termA termB”).  Let’s look an example.

You’re working for an oil company and you’re looking for documents related to “oil rights” (such as “oil rights”, “oil drilling rights”, “oil production rights”, etc.).  You could perform phrase searches, but any variations that you didn’t think of would be missed (e.g., “rights to drill for oil”, etc.).  You could perform an AND search (i.e., “oil” AND “rights”), and that could very well retrieve all of the files related to “oil rights”, but it would also retrieve a lot of files where “oil” and “rights” appear, but have nothing to do with each other.  A search for “oil” AND “rights” throughout various oil company’s data stores may retrieve several published and copyrighted documents that mention the word “oil”, but have nothing to do with “oil rights”.  Why?  Because almost every published and copyrighted document will have the phrase “All Rights Reserved” in the document, so those will be retrieved, even though many of them will likely be non-responsive.

A proximity search like “oil within 5 words of rights” will only retrieve the document if those words are as close as specified to each other, in either order.  Proximity searching helps reduce the result set to a more manageable number for review, by eliminating all of the files that happen to mention “oil” and “rights” somewhere in the document, but not in context with each other.  Yet, it catches all of the variations of phrases containing “oil” and “rights” for which you may not think to search.

Proximity searches are great for searching people’s names, as well.  For example, a phrase search for “John Adams” won’t retrieve “Adams, John”, but a proximity search for “John within 3 words of Adams” will retrieve “John Adams”, “Adams, John”, and even “John Q. Adams”.

When developing a search of two or more related words that effectively balances recall and precision, consider using a proximity search.  It just might be the right search for the situation.

So, what do you think?  Do you use proximity searching to make your searches more effective?  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.

eDiscovery Sanctions Can Happen in Police Brutality Cases Too – eDiscovery Case Law
 

As reported in the Seattle Times, Pierce County (Washington) Superior Court Judge Stephanie Arend issued a $300,000 sanction against King County for failure to produce key documents illustrating the previous troubling behavior of a sheriff deputy who tackled Christopher Sean Harris and left him permanently brain-damaged.  Judge Arend also indicated that the county would be liable for attorneys' fees and possibly compensatory damages for the Harris family.  This after King County had settled with the Harris family for $10 million in January 2011 during a civil trial in King County Superior Court.

After being wrongly identified as a suspect in an earlier bar fight, Harris was tackled and pushed into a wall by Deputy Matthew Paul in Seattle's Belltown neighborhood in May 2009 and left brain-damaged, paralyzed and unable to speak. After reaching a settlement during the civil trial, Harris' attorneys claimed the Sheriff's Office and county withheld emails and other documents that outlined internal concerns about unnecessary or excessive force used by Paul in other incidents. They filed a motion at the end of last year asking Arend to sanction the county and order it to pay an additional $3.3 million.

Documents alleged by Harris’ attorneys to have been intentionally withheld by the King County Sheriff’s office include:

  • A thread of emails to Paul's supervisor about his behavior at the Basic Law Enforcement Academy, where concerns were raised about Paul having "exhibited behaviors that were a concern" and had used force that was "far above the norm" when working with a smaller female trainee.  While the county indicated that a search failed to locate these emails, Judge Arend, in the ruling, noted that "any competent electronic discovery effort would have located this email."
  • There was also a citizen complaint against Paul in May 2010 after a Seattle resident stopped to videotape Paul and other deputies deal with an intoxicated person and the resident was tackled by Paul and suffered a broken nose.  The resident has filed a federal civil-rights lawsuit against Paul and the county.
  • There were also documents about another use-of-force incident that was not put into Paul’s personnel file until the Harris’ case was settled.

"This reckless indifference in its failure to produce these three documents — documents that were indisputably relevant — is the functional equivalent of intentional misconduct," Judge Arend noted, calling the county’s failure to produce these documents as “reprehensible”.

Because the family would have filed a civil-rights lawsuit if they had known about these other instances, Judge Arend said she will decide about further damages after a hearing for Harris' attorneys to attempt to show that they would have prevailed in a civil-rights case with the additional documents.

Amazingly, Paul remains on the force.

So, what do you think?  Was the sanction severe enough?  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.

EDBP.com, A Lawyer Centric Work Flow Model for eDiscovery – eDiscovery Best Practices

Take a closer look – that’s not the EDRM model you see above.  It’s the new EDBP model.

EDBP stands for Electronic Discovery Best Practices and is the brainchild of Ralph Losey, whose e-Discovery Team® blog is one of the must-read blogs (and one of the most in-depth) in the industry.  Ralph is also National e-Discovery Counsel with the law firm of Jackson Lewis, LLP, an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery and has also previously been a thought leader interviewee on this blog.  Other than all that, he’s not very busy.

As Ralph describes on his blog, “EDBP is a new reference of legal best practices for practicing attorneys and paralegals.  It is also an open project where other specialists in the field are invited to make contributions.”  He also notes that “The ten-step diagram…serves as the basic structure of the tasks performed by attorneys in electronic discovery practice. This structure may also change with time to keep up with evolving attorney practices.”

According to the EDBP site (ironically at EDBP.com), the stated mission is as follows:

“The purpose of EDBP is to provide a model of best practices for use by law firms and corporate law departments. EDBP is designed to be an educational resource for all lawyers striving to stay current with the latest thinking on excellence in legal services in electronic discovery law.”

Other notable aspects about EDBP:

  • It’s lawyer-centric, designed to address legal services, not the work of vendors.  As a result, it’s different in scope from EDRM, which covers non-legal service activities as well.  “The EDBP chart will focus solely on legal practice and legal services. It will be by and for lawyers only and the paralegals who assist their legal services”.
  • It does not address minimum standards for legal services, but instead “embodies an evolving understanding of excellence in legal services”.  In other words, if it were a final exam, you’re expected to ace the exam, not just get a passing grade.

The EDBP site also provides linked detailed write ups of each of the color coded sections, entitled Pre-Suit (gray), Preservation (blue), Cooperation (red), C.A.R. (green), Productions (yellow) and Evidence (turquoise?).  The sections include links to resources of information, such as The Sedona Conference® (including flowcharts) and case cites, as well as references to Federal Rules.

On his blog, Losey says “I am writing the beginning statements of best practices (about half-way through) and will serve as the first editor and gate-keeper for future contributions from others.”  The site also provides a place to provide your email address to subscribe to updates and a comments section to leave a comment for suggestions on how to improve EDBP.  It will be interesting to see how this site evolves – it promises to be an invaluable resource for eDiscovery best practices for lawyers and other legal services personnel.

So, what do you think?  Do you think EDBP will be a useful resource?  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.

Twitter Turns Over Tweets in People v. Harris – eDiscovery Case Law

As reported by Reuters, Twitter has turned over Tweets and Twitter account user information for Malcolm Harris in People v. Harris, after their motion for a stay of enforcement was denied by the Appellate Division, First Department in New York and they faced a finding of contempt for not turning over the information.  Twitter surrendered an “inch-high stack of paper inside a mailing envelope” to Manhattan Criminal Court Judge Matthew Sciarrino, which will remain under seal while a request for a stay by Harris is heard in a higher court.

Back in April, Harris, an Occupy Wall Street activist facing criminal charges, tried to quash a subpoena seeking production of his Tweets and his Twitter account user information in his New York criminal case.  That request was rejected, so Twitter then sought to quash the subpoena themselves, claiming that the order to produce the information imposed an “undue burden” on Twitter and even forced it to “violate federal law”.

Then, on June 30, Judge Sciarrino ruled that Twitter must produce tweets and user information of Harris, noting: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist…Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”  Judge Sciarrino indicated that his decision was “partially based on Twitter’s then terms of service agreement”, which was subsequently modified to add the statement “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.”

Twitter filed an appeal of the trial court’s decision in with the Appellate Division, First Department in New York, but, unfortunately for Twitter, it didn’t take long for the appellate court panel to rule, as they denied Twitter’s motion for a stay of enforcement of the Trial Court’s order to produce Malcolm Harris’s tweets.  Twitter was ultimately given a deadline by the Trial Court during a hearing on the District Attorney’s motion (for Twitter to show cause as to why they should not be held in contempt for failure to produce the tweets) to produce Harris’s information by Friday September 14 or face a finding of contempt. Judge Sciarrino even went so far as to warn Twitter that he would review their most recent quarterly financial statements in determining the appropriate financial penalty if Twitter did not obey the order.  Now they have, though the information has been kept under seal (at least for now).

As the Reuters article notes, “The case has drawn interest from privacy advocates, including the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), which have filed an amicus brief in support of Twitter’s appeal.  They are concerned the ruling could set a precedent putting the onus on social media companies to try to protect their users from criminal prosecution.”

So, what do you think?  Will the stay be denied or will the information remain under seal?  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.

Don’t Be “Duped”, Files with Different HASH Values Can Still Be the Same – eDiscovery Best Practices

A couple of months ago, we published a post discussing how the number of pages in each gigabyte can vary widely and, to help illustrate the concept, we took one of our blog posts and put it into several different file formats to illustrate how each file had the same content, yet was a different size.  That’s not the only concept that example illustrates.

Content is Often Republished

How many of you have ever printed or saved a file to Adobe Acrobat PDF format?  Personally, I do it all the time.  For example, I “publish” marketing slicks created in Microsoft® Publisher, “publish” finalized client proposals created in Microsoft Word and “publish” presentations created in Microsoft PowerPoint to PDF format regularly.  Microsoft now even includes Adobe PDF as one of the standard file formats to which you can save a file, I even have a free PDF print driver on my laptop, so I can conceivably create a PDF file for just about anything that I can print.  In each case, I’m duplicating the content of the file, but in a different file format designed for publishing that content.

Another way content is republished is via the ubiquitous “copy and paste” capability that is used by so many to duplicate content to another file.  Whether copying part or all of the content, “copy and paste” functionality is essentially available in just about every application to be able to duplicate content from one application to the next or even one file to the next in the same application.

Same Content, Different HASH

When publishing a file to PDF or copying the entire contents of a file to a new file, the contents of the file may be the same, but the HASH value, which is a digital fingerprint that reflects the contents and format of the file, will be different.  So, a Word file and the PDF file published from the Word file may contain the same content, but the HASH value will be different.  Even copying the content from one file to another in the same software program can result in different HASH values, or even different file sizes.  For example, I copied the entire contents of yesterday’s blog post, written in Word, into a brand new Word file.  Not only did they have different HASH values, but they were different sizes – the copied file was 8K smaller than the original.  So, these files, while identical in content, won’t be considered “duplicates” based on HASH value and won’t be “de-duped” out of the collection as a result.  As a result, these files are considered “near-dupes” for analysis purposes, even though the content is essentially identical.

What to Do with the Near-Dupes?

Identifying and culling these essentially identical near-dupes isn’t necessary in every case, but if it is, you’ll need to perform a process that groups similar documents together so that those near-dupes can be identified and addressed.  We call that “clustering”.  For more on the benefits of clustering, check out this blog post.

So, what do you think?  What do you do with “dupes” that have different HASH values?  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.

Home Depot’s “Extremely Broad” Request for Social Media Posts Denied – eDiscovery Case Law
 

In Mailhoit v. Home Depot, CV 11 03892 DOC (SSx) (C.D. Cal.; Sept. 7, 2012), Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Case Background

The plaintiff had been a manager of the defendant's store in Burbank, California, and filed a suit against her employer after being fired, charging unlawful discrimination based on gender, as well as failure to accommodate her known physical disability.  The plaintiff testified at her deposition that she suffers from post traumatic stress disorder, depression and isolation, and has cut herself off from communication with friends because of Defendant’s alleged wrongdoing.  The defendant argued “that it is entitled to Plaintiff’s communications posted on social networking sites (“SNS”) such as Facebook and LinkedIn to test Plaintiff’s claims about her mental and emotional state.”

Defendant’s Motion to Compel

The defendant filed a Motion to Compel Further Responses to Defendant’s Request for Production of Documents, which included a request for (among other things):

“Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005(the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state”.

The defendant also requested “[t]hird-party communications to Plaintiff that place her own communications in context”, “[a]ll social networking communications between Plaintiff and any current or former Home Depot employees” and any pictures posted to the plaintiff’s profile or otherwise linked via tagging.

Judge Rules against Defendant in Three of Four Categories

Judge Segal noted that “while a party may conduct discovery concerning another party’s emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.  A court can limit discovery if it determines, among other things, that the discovery is…unreasonably cumulative or duplicative”.  Since Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity”, Judge Segal ruled that “three of the four categories of SNS communications sought by Defendant fail Rule 34(b)(1)(A)’s ‘reasonable particularity’ requirement”, only granting the defendant’s request for social networking communications between Plaintiff and any current or former Home Depot employees.

So, what do you think?  Should the defendant’s requests have been denied, or were they “unreasonably cumulative”?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to the Ride the Lightning blog for the tip on this case!

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