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Doug Austin

Inadvertent Disclosure? Got Clawback? – eDiscovery Best Practices
 

As discovery becomes more complex and voluminous, it seems as though we’re seeing more and more cases where inadvertent disclosures of privileged documents are becoming more common.  In just the past couple of months, we’ve discussed two cases on this blog, where the producing parties were forced to waive privilege of those documents when they failed the now popular five factor test to determine whether an inadvertent disclosure entitles the producing party to have the documents returned.  Perhaps if they had a well-defined “clawback” agreement, the results would have been different?

What is a “Clawback” Agreement?

A clawback agreement enables the parties in a case to agree – in advance – that if privileged documents are inadvertently produced during discovery, privilege on those documents won’t be waived. The inadvertently produced documents are instead returned to the producing party, or destroyed by the receiving party – either way, they are not used by the receiving party.  As part of that agreement, each party is able to identify documents that it has inadvertently produced and request that they be returned or destroyed by the opposing party.  Per the clawback agreement, the opposing party agrees to comply with that request and not make a claim of waiver.

Protection of Waiver under FRE 502

Federal Rule of Evidence 502 (FRE 502) was enacted in 2008 to provide additional reassurances for parties dealing with the problem of inadvertent waiver.  Under FRE 502, inadvertent disclosure of privileged material does not operate as a waiver if three conditions are met:

  • The disclosure is inadvertent
  • The holder of the privilege took reasonable steps to prevent disclosure
  • The holder promptly took reasonable steps to rectify the error

What a Clawback Agrement Should Include

To promote compliance with the three conditions, the clawback agreement should address each one, clearly stating that inadvertent production of privileged material will not waive privilege, and addressing the steps that should be taken to avoid inadvertent disclosure, as well as to rectify the error, if such inadvertent disclosure occurs.  The definition of “reasonable steps” in each case is in the eye of the beholder, so it’s a good idea to establish and agree on specific steps, if possible.  The clawback agreement should also clearly define the procedure to be followed if assertion of privilege is disputed.

Because of FRE 502, if a clawback agreement is incorporated into a protective order entered by the court early in the case, it ensures court approval of the process in case there are disagreements and is binding on the parties, including third parties.  If you can’t agree on the terms of the clawback agreement with the opposing party early in the case and establishing the protection that it affords is important, you may need to file a motion with the court to get a clawback order entered.

So, what do you think?  Do your cases typically include a court-filed clawback agreement?  Have those agreements ever been used to protect inadvertently disclosed privileged information?  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.

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification – eDiscovery Case Law
 

Have you ever joined a health club, then later tried to cancel your membership?  Did the health club make it easy to do so?  If not, then this case is for you.

In Boeynaems v. LA Fitness International, LLC, No. 10-2326, 2012 U.S. Dist. (E.D. Pa. Aug. 16, 2012), Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

This case emerged from two separate claims filed by plaintiffs who claimed they “encountered deception and breaches concerning their desire to terminate their membership” with the national gym chain LA Fitness. The two cases were consolidated, and the plaintiffs were seeking class certification so that other plaintiffs could join the suit.

After recounting the discovery history between the parties, Judge Baylson noted that this case arose because of an unresolved dispute, including who should bear the cost of continued discovery. To produce ESI requested by the plaintiffs, LA Fitness approximated it would cost the company hundreds of thousands of additional dollars. LA Fitness had already incurred expenses for discovery tasks previously undertaken, including the review of thousands of e-mails, review of “(1) over 500,000 Member Notes from five states for 30 months looking for certain terms, (2) over 1,000 boxes of cancellation requests, of which Plaintiffs reviewed only 70 boxes, (3) over 19,000 pages of documents, and (4) an electronic search of over 32,000 e-mails, maintained by five custodians.” Moreover, LA Fitness asserted that its review of “a sampling of these Member Notes has exhibited only an extremely small proportion with any evidence probative of Plaintiffs’ claims.”

Judge Baylson pointed out that as a result of the extensive review already undertaken by LA Fitness, the plaintiffs had already “already amassed, mostly at Defendant’s expense, a very large set of documents that may be probative as to the class action issue.” In fairness, Judge Baylson concluded that the costs should now shift to the plaintiffs: “In other words, given the large amount of information defendant has already provided, plaintiffs need to assess the value of additional discovery for their class action motion. If plaintiffs conclude that additional discovery is not only relevant, but important to proving that a class should be certified, then plaintiffs should pay for that additional discovery from this date forward, at least until the class action determination is made.” Also, “if the plaintiffs have confidence in their contention that the court should certify the class, then the plaintiffs should have no objection to making an investment.” Moreover, Judge Baylson noted its counsel could afford the investment, as the plaintiffs were represented by “the very successful and well-regarded Philadelphia firm of Berger & Montague. . . . If the Berger & Montague firm believes that this case is meritorious, it has the financial ability to make the investment in discovery.”

Therefore, for production of any requested documents going forward, the plaintiffs were found to have the responsibility for bearing the costs.

So, what do you think?  Should the plaintiffs pay for additional discovery?  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.

When is a Billion Dollars Not Enough? – eDiscovery Case Law
 

When it’s Apple v. Samsung, of course!

According to the Huffington Post, Apple Inc. requested a court order for a permanent U.S. sales ban on Samsung Electronics products found to have violated its patents along with additional damages of $707 million on top of the $1.05 billion dollar verdict won by Apple last month, already one of the largest intellectual-property awards on record.

Back in August, a jury of nine found that Samsung infringed all but one of the seven patents at issue and found all seven of Apple's patents valid – despite Samsung's attempts to have them thrown out. They also determined that Apple didn't violate any of the five patents Samsung asserted in the case.  Apple had been requesting $2.5 billion in damages.  Trial Judge Lucy Koh could still also triple the damage award because the jury determined Samsung had acted willfully.

Interviewed after the trial, some of the jurors cited video testimony from Samsung executives and internal emails as key to the verdict, which was returned after just 22 hours of deliberation, despite the fact that the verdict form contained as many as 700 points the jury (including charges brought against different subsidiaries of the two companies addressing multiple patents and numerous products).

Role of Adverse Inference Sanction

As noted on this blog last month, Samsung received an adverse inference instruction from California Magistrate Judge Paul S. Grewal just prior to the start of trial as failure to turn “off” the auto-delete function in Samsung’s proprietary “mySingle” email system resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.  As a result, Judge Grewal ordered instructions to the jury to indicate that Samsung had failed to preserve evidence and that evidence could be presumed relevant and favorable to Apple.  However, Judge Lucy Koh decided to modify the “adverse inference” verdict issued for the jury to include instructions that Apple had also failed to preserve evidence.  Therefore, it appears as though the adverse inference instruction was neutralized and did not have a significant impact in the verdict; evidently, enough damning evidence was discovered that doomed Samsung in this case.

Friday's Filings

In a motion filed on Friday, Apple sought approximately $400 million additional in damages for design infringement by Samsung; approximately $135 million for willful infringement of its utility patents; approximately $121 million in supplemental damages based on Samsung's product sales not covered in the jury's deliberation; and approximately $50 million of prejudgment interest on damages through December 31 – total of $707 million requested.  Apple also requested an injunction to cover "any of the infringing products or any other product with a feature or features not more than colorably different from any of the infringing feature or features in any of the Infringing Products."

Not surprisingly, Samsung submitted a filing on Friday, requesting a new trial “enabling adequate time and even-handed treatment of the parties”, stating “The Court's constraints on trial time, witnesses and exhibits were unprecedented for a patent case of this complexity and magnitude, and prevented Samsung from presenting a full and fair case in response to Apple's many claims.”

So, what do you think?  Will Apple get more money?  Will Samsung get a new trial?  If so, will there be more discovery sanctions?  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.

Proper Wildcard Searching: Why You Should Give a Dam* – eDiscovery Best Practices
 

When we launched eDiscoveryDaily over two years ago, I relayed a story where I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.  That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mind”, “mingle”, “minimal”, “miniscule” and “minutia” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and negotiate a revised search that was more appropriate.

Recently, I encountered another client, who was trying to use “dam*” to retrieve variations of “damage” and “damages”.  Unfortunately, they also retrieved “dame”, “damp” and, well, “damn”.  There are 86 total words in the English language that begin with the letters “dam”.  Darn it!

Methods to Retrieve the Correct Wildcard Variations

In that blog post, I talked about the benefits of stem searching (if your application’s search engine supports stem searches) to capture the specific variations of a word (like “mine” or “damage”) and Morewords.com, which shows list of words that begin with your search string.  For example, to get all 269 words beginning with “min”, go here.  Substitute any characters for “min” in the URL to see the words that start with those characters.  Choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more precise result set without sacrificing recall.  Personally, I almost never use wildcards – I prefer to identify the variations and just use them, it’s more precise.

Introducing Spelling Variations into the Mix

The above approaches assume that words are spelled correctly in the collection – if they are not, those misspellings won’t be retrieved.  Misspellings can include Optical Character Recognition (OCR) errors, where the OCR application fails to render all words read from an image file with 100% accuracy (this is common, especially when the resolution of the image is less than optimal).  So, you can get “words” in the collection such as “min1ng” or “MININ6”.

To combat this, you’ll need to identify the variations of the terms you wish to use, then you can use a search tool like CloudNine Discovery’s Early Case Assessment application, (FirstPass®, powered by Venio FPR™), that supports "fuzzy" searching, which is a mechanism by finding alternate words that are close in spelling to the word you're looking for (usually one or two characters off).  FirstPass will display all of the words – in the collection – close to the word you’re looking for, so if you’re looking for “mining”, you can find variations such as “min1ng”, “MININ6” or even “minig” – that could be relevant.  Then, simply select the variations you wish to include in the search.  You’ll need to repeat this for each of the variations of the terms you wish to use, but it will enable you to pick up those misspellings and OCR errors to ensure completeness.

So, what do you think?  Do you use wildcards in your searches?  Are you sure you’re getting just the terms you want?  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 Disclosure of Privileged Documents Fails the Five Factor Test – eDiscovery Case Law
 

In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., 2:07-CV-116 (N.D. Ohio), Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Background of Inadvertent Disclosure

In a breach of contract lawsuit, the defendant produced 7,500 hard copy pages including 347 pages of emails (4.6% of the total) for which legal personnel were senders or recipients. The defendant did not assert privilege on any of the 347 pages of emails until the plaintiff sought to depose those legal personnel. As a result of the defendant seeking to assert privilege on those emails, the plaintiff filed a motion for a determination that the documents are not privileged and submitted them for in camera review.

Five Factor Test

Noting that the producing party has the burden to prove that the disclosure of privileged documents was truly inadvertent, Judge King referenced the now popular five factor test to determine whether an inadvertent disclosure entitles the producing party to have the documents returned, as follows:

“(1) the reasonableness of precautions taken in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the magnitude of the disclosure, (4) any measures taken to mitigate the damage of the disclosures, and (5) the overriding interests of justice.”

Analysis of Factors

With regard to the first factor, despite the fact that the defendant claimed that this production “was reviewed by several layers of attorneys who isolated the privileged documents and prepared for electronic production in the same way” as their previous productions, Judge King noted that the defendant did not specify “who reviewed the production, what steps were taken to review the documents for privilege or whether the production was different in form from prior productions” and noted that no privilege log was produced.  As a result, Judge King found that the defendant failed the first factor.

With regard to the second factor, Judge King compared the rate of disclosure of privileged documents in this case (4.6% of the total) to two other cases where privilege was also waived (134 out of 10,085 pages and 93 documents out of 15,000 documents respectively) and found the number of disclosures to be “relatively high”, so the defendant failed the second factor.

Regarding the third factor, the fact that the documents appeared to be relevant to the plaintiff's claims and they attempted to use them in depositions caused the defendant to fail the third factor.

On the fourth factor, the defendant did immediately invoke privilege when it discovered that the documents had been inadvertently produced.  However, they did not follow the procedure in Federal Rule of Civil Procedure 26(b)(5)(B), which requires:

“If information produced in discovery is subject to a claim of privilege . . . the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party . . . may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”

As Judge King noted, “Medex did not identify any particular documents covered by the privilege, did not provide a proper privilege log and, beyond conclusory statements, Medex did not state a basis for the claimed privilege.”  So, they failed the fourth factor.

At this point, if this was a boxing match, it would be stopped.  In granting the plaintiff’s motion, Judge King stated: “To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.”

So, what do you think?  What do you to ensure your firm will pass the five factor test for inadvertent disclosures of privileged 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.

eDiscovery Acquisitions: Industry Consolidation Continues
 

If you think there have been a lot of acquisitions in the eDiscovery industry, you’re right.  Now, thanks to Rob Robinson and his Complex Discovery blog, you can get a sense of just how many acquisitions there have been.  Rob has provided a post showing 10 Years of eDiscovery Mergers, Acquisitions and Investments.

While Rob acknowledges that it’s a “non-comprehensive overview” of “key and publicly announced eDiscovery related mergers, acquisitions and investments since 2002”, he does provide 133 of them in the list – dating all the way back to April of 2002 when Kroll and Ontrack became one company.  For each, he provides the announcement date, acquired company, acquiring or investing company and acquisition amount (if known).  The early years (2002-2005) only have ten entries total, so there could certainly (and understandably) be some early years acquisitions unaccounted for.  Nonetheless, a few observations:

  • Since the beginning of 2010, there have been at least 79 mergers, acquisitions and investments (over half the list).  There have been 5 acquisitions (and one investment) since the beginning of August alone.
  • What is the largest acquisition on the list (based on those that show reported acquisition amounts)?  If you said the HP acquisition of Autonomy in August of last year ($11.7 billion), you’d be wrong.  The largest acquisition on the list is Symantec’s purchase of Veritas software way back in December of 2004 ($13.5 billion).  Veritas had made its own acquisition of KVS less than 10 months earlier.
  • The company with the most acquisitions on the list is Huron, with 6 acquisitions.  Close on their heels is Symantec (5 acquisitions), LexisNexis (4 acquisitions), Thomson Reuters (4 acquisitions, when they acquired LiveNote back in 2006, they were still known as Thomson) and Autonomy (4 acquisitions, then acquired themselves by HP last year).
  • Just because you’ve been acquired once doesn’t mean you can’t be acquired again.  Applied Discovery, Black Letter Discovery, CaseLogistix, CT Summation and Kroll were all acquired twice during this span and Daticon was acquired three times!
  • Think a major, long term software company can’t be acquired?  Two products that have been around for decades, Summation and Concordance, have each been acquired in the past decade – Summation twice (by Wolters Kluwer in 2004 and AccessData in 2010).
  • Think that eDiscovery is only for specialized companies?  Think again.  Heavyweights such as HP (3 acquisitions), Computer Associates (3 acquisitions), IBM (2 acquisitions), Deloitte (2 acquisitions) and Microsoft (1 acquisition) all acquired eDiscovery companies over the last 10 years.

Thanks, Rob, for such an informative compilation of eDiscovery acquisitions, mergers and investments!

So, what do you think?  Do you think eDiscovery consolidation will continue at this pace?  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 Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

We like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

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 Case Law: Twitter Loses Appeal in People v. Harris
 

As reported in the Gibbons E-Discovery Law Alert blog, Twitter filed an appeal of the trial court’s decision in People v. Harris with the Appellate Division, First Department in New York, arguing that Twitter users have the right to quash subpoenas pursuant to Twitter’s terms of service agreement as well as because defendants’ constitutional rights are implicated by a government-issued subpoena to a third party.  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 last week.

Attempts to Quash the Subpoena Fail

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, New York Criminal Court Judge Matthew Sciarrino Jr. 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 Continues to Fight Ruling

After the ruling, the New York District Attorney filed an order for Twitter to show cause as to why they should not be held in contempt for failure to produce the tweets. Twitter responded by seeking the stay of enforcement pending the appeal.  Last week, Twitter was given a deadline by the Trial Court during a hearing on the District Attorney’s motion 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.

So, what do you think?  With the appeal denied, will Twitter finally produce the plaintiff’s information?  What impact does this case have on future subpoenas of Twitter user information?  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 Best Practices: Quality Control, Making Sure the Numbers Add Up
 

Yesterday, we wrote about tracking file counts from collection to production, the concept of expanded file counts, and the categorization of files during processing.  Today, let’s walk through a scenario to show how the files collected are accounted for during the discovery process.

Tracking the Counts after Processing

We discussed the typical categories of excluded files after processing – obviously, what’s not excluded is available for searching and review.  Even if your approach includes a technology assisted review (TAR) methodology such as predictive coding, it’s still likely that you will want to do some culling out of files that are clearly non-responsive.

Documents during review may be classified in a number of ways, but the most common ways to classify documents as to whether they are responsive, non-responsive, or privileged.  Privileged documents are also typically classified as responsive or non-responsive, so that only the responsive documents that are privileged need be identified on a privilege log.  Responsive documents that are not privileged are then produced to opposing counsel.

Example of File Count Tracking

So, now that we’ve discussed the various categories for tracking files from collection to production, let’s walk through a fairly simple eMail based example.  We conduct a fairly targeted collection of a PST file from each of seven custodians in a given case.  The relevant time period for the case is January 1, 2010 through December 31, 2011.  Other than date range, we plan to do no other filtering of files during processing.  Duplicates will not be reviewed or produced.  We’re going to provide an exception log to opposing counsel for any file that cannot be processed and a privilege log for any responsive files that are privileged.  Here’s what this collection might look like:

  • Collected Files: 101,852 – After expansion, 7 PST files expand to 101,852 eMails and attachments.
  • Filtered Files: 23,564 – Filtering eMails outside of the relevant date range eliminates 23,564 files.
  • Remaining Files after Filtering: 78,288 – After filtering, there are 78,288 files to be processed.
  • NIST/System Files: 0 – eMail collections typically don’t have NIST or system files, so we’ll assume zero files here.  Collections with loose electronic documents from hard drives typically contain some NIST and system files.
  • Exception Files: 912 – Let’s assume that a little over 1% of the collection (912) is exception files like password protected, corrupted or empty files.
  • Duplicate Files: 24,215 – It’s fairly common for approximately 30% of the collection to include duplicates, so we’ll assume 24,215 files here.
  • Remaining Files after Processing: 53,161 – We have 53,161 files left after subtracting NIST/System, Exception and Duplicate files from the total files after filtering.
  • Files Culled During Searching: 35,618 – If we assume that we are able to cull out 67% (approximately 2/3 of the collection) as clearly non-responsive, we are able to cull out 35,618 files.
  • Remaining Files for Review: 17,543 – After culling, we have 17,543 files that will actually require review (whether manual or via a TAR approach).
  • Files Tagged as Non-Responsive: 7,017 – If approximately 40% of the document collection is tagged as non-responsive, that would be 7,017 files tagged as such.
  • Remaining Files Tagged as Responsive: 10,526 – After QC to ensure that all documents are either tagged as responsive or non-responsive, this leaves 10,526 documents as responsive.
  • Responsive Files Tagged as Privileged: 842 – If roughly 8% of the responsive documents are privileged, that would be 842 privileged documents.
  • Produced Files: 9,684 – After subtracting the privileged files, we’re left with 9,684 responsive, non-privileged files to be produced to opposing counsel.

The percentages I used for estimating the counts at each stage are just examples, so don’t get too hung up on them.  The key is to note the numbers in red above.  Excluding the interim counts in black, the counts in red represent the different categories for the file collection – each file should wind up in one of these totals.  What happens if you add the counts in red together?  You should get 101,852 – the number of collected files after expanding the PST files.  As a result, every one of the collected files is accounted for and none “slips through the cracks” during discovery.  That’s the way it should be.  If not, investigation is required to determine where files were missed.

So, what do you think?  Do you have a plan for accounting for all collected files during discovery?  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 Best Practices: Quality Control, It’s a Numbers Game
 

Previously, we wrote about Quality Assurance (QA) and Quality Control (QC) in the eDiscovery process.  Both are important in improving the quality of work product and making the eDiscovery process more defensible overall.  For example, in attorney review, QA mechanisms include validation rules to ensure that entries are recorded correctly while QC mechanisms include a second review (usually by a review supervisor or senior attorney) to ensure that documents are being categorized correctly.  Another overall QC mechanism is tracking of document counts through the discovery process, especially from collection to production, to identify how every collected file was handled and why each non-produced document was not produced.

Expanded File Counts

Scanned counts of files collected are not the same as expanded file counts.  There are certain container file types, like Outlook PST files and ZIP archives that exist essentially to store a collection of other files.  So, the count that is important to track is the “expanded” file count after processing, which includes all of the files contained within the container files.  So, in a simple scenario where you collect Outlook PST files from seven custodians, the actual number of documents (emails and attachments) within those PST files could be in the tens of thousands.  That’s the starting count that matters if your goal is to account for every document in the discovery process.

Categorization of Files During Processing

Of course, not every document gets reviewed or even included in the search process.  During processing, files are usually categorized, with some categories of files usually being set aside and excluded from review.  Here are some typical categories of excluded files in most collections:

  • Filtered Files: Some files may be collected, and then filtered during processing.  A common filter for the file collection is the relevant date range of the case.  If you’re collecting custodians’ source PST files, those may include messages outside the relevant date range; if so, those messages may need to be filtered out of the review set.  Files may also be filtered based on type of file or other reasons for exclusion.
  • NIST and System Files: Many file collections also contain system files, like executable files (EXEs) or Dynamic Link Library (DLLs) that are part of the software on a computer which do not contain client data, so those are typically excluded from the review set.  NIST files are included on the National Institute of Standards and Technology list of files that are known to have no evidentiary value, so any files in the collection matching those on the list are “De-NISTed”.
  • Exception Files: These are files that cannot be processed or indexed, for whatever reason.  For example, they may be password-protected or corrupted.  Just because these files cannot be processed doesn’t mean they can be ignored, depending on your agreement with opposing counsel, you may need to at least provide a list of them on an exception log to prove they were addressed, if not attempt to repair them or make them accessible (BTW, it’s good to establish that agreement for disposition of exception files up front).
  • Duplicate Files: During processing, files that are exact duplicates may be put aside to avoid redundant review (and potential inconsistencies).  Some exact duplicates are typically identified based on the HASH value, which is a digital fingerprint generated based on the content and format of the file – if two files have the same HASH value, they have the same exact content and format.  Emails (and their attachments) may be identified as duplicates based on key metadata fields, so an attachment cannot be “de-duped” out of the collection by a standalone copy of the same file.

All of these categories of excluded files can reduce the set of files to actually be searched and reviewed.  Tomorrow, we’ll illustrate an example of a file set from collection to production to illustrate how each file is accounted for during the discovery process.

So, what do you think?  Do you have a plan for accounting for all collected files during discovery?  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.