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Doug Austin

eDiscovery Case Law: There’s a New Sheriff in Town – Judge Facciola
 

In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

According to the plaintiffs, defendant infringed on their wireless technology by utilizing the plaintiffs’ technology on its buses. Each side claimed discovery deficiencies and delays by the parties and filed motions accordingly.  The case was referred to Judge Facciola for discovery and in his 12 page Memorandum Opinion on June 6, he denied both motions.  However, he did note that the defendant’s application for sanctions has merit based on Rule 37, which indicates that “if a motion to compel is denied, the court may order the moving party to pay the opposing party’s expenses, including attorney’s fees, unless the motion was “substantially justified.””  Finding that not to be the case, Judge Facciola ordered the plaintiffs “to show cause why a sanction, in the form of attorney’s fees, should not be awarded against them for the time defendant spent opposing plaintiffs’ motion to compel”.

However, it’s the closing of the opinion where he laid down the law to the parties regarding the cooperation he expects moving forward on eDiscovery issues:

“III. High Noon

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation…First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.”

To download a copy of the Sedona Conference Cooperation Proclamation, click here.

Requiring a conference every two weeks to discuss discovery issues when parties can’t agree – sounds like a great idea to me!  So, what do you think?  Are attorneys taking the responsibility to conduct a Rule 26(f) conference to discuss discovery issues seriously?  Would Judge Facciola look good in a ten gallon hat?  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 Case Law: Judge Peck Denies Recusal Motion in Da Silva Moore
 

It’s been a few weeks since we heard anything from the Da Silva Moore case.  If you’ve been living under a rock the past few months, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion in this case in February making it one of the first cases to accept the use of computer-assisted review of electronically stored information (“ESI”).  However, the plaintiffs objected to the ruling and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind and ultimately formally requested the recusal of Judge Peck.  For links to all of the recent events in the case that we’ve covered, click here.

Last Friday, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal.  The opinion and order reviewed the past several contentious months and rejected the plaintiffs’ arguments for recusal in the following areas:

Participation in conferences discussing the use of predictive coding:

“I only spoke generally about computer-assisted review in comparison to other search techniques…The fact that my interest in and knowledge about predictive coding in general overlaps with issues in this case is not a basis for recusal.”

“To the extent plaintiffs are complaining about my general discussion at these CLE presentations about the use of predictive coding in general, those comments would not cause a reasonable objective observer to believe I was biased in this case. I did not say anything about predictive coding at these LegalTech and other CLE panels that I had not already said in in my Search,Forward article, i.e., that lawyers should consider using predictive coding in appropriate cases. My position was the same as plaintiffs’ consultant . . . . Both plaintiffs and defendants were proposing using predictive coding in this case.  I did not determine which party’s predictive coding protocol was appropriate in this case until the February 8, 2012 conference, after the panels about which plaintiffs complain.”

“There are probably fewer than a dozen federal judges nationally who regularly speak at ediscovery conferences. Plaintiffs' argument that a judge's public support for computer-assisted review is a recusable offense would preclude judges who know the most about ediscovery in general (and computer-assisted review in particular) from presiding over any case where the use of predictive coding was an option, or would preclude those judges from speaking at CLE programs. Plaintiffs' position also would discourage lawyers from participating in CLE programs with judges about ediscovery issues, for fear of subsequent motions to recuse the judge (or disqualify counsel).”

Relationship with defense counsel Ralph Losey:

“While I participated on two panels with defense counsel Losey, we never had any ex parte communication regarding this lawsuit. My preparation for and participation in ediscovery panels involved only ediscovery generally and the general subject of computer-assisted review. Losey's affidavit makes clear that we have never spoken about this case, and I confirm that. During the panel discussions (and preparation sessions), there was absolutely no discussion of the details of the predictive coding protocol involved in this case or with regard to what a predicative coding protocol should look like in any case. Plaintiffs' assertion that speaking on an educational panel with counsel creates an appearance of impropriety is undermined by Canon 4 of the Judicial Code of Conduct, which encourages judges to participate in such activities.”

Relationship with Recommind, the selected vendor in the case:

“The panels in which I participated are distinguishable. First, I was a speaker at educational conferences, not an audience member. Second, the conferences were not one-sided, but concerned ediscovery issues including search methods in general. Third, while Recommind was one of thirty-nine sponsors and one of 186 exhibitors contributing to LegalTech's revenue, I had no part in approving the sponsors or exhibitors (i.e., funding for LegalTech) and received no expense reimbursement or teaching fees from Recommind or LegalTech, as opposed to those companies that sponsored the panels on which I spoke. Fourth, there was no "pre-screening" of MSL's case or ediscovery protocol; the panel discussions only covered the subject of computer-assisted review in general.”

Perhaps it is no surprise that Judge Peck denied the recusal motion.  Now, the question is: will District Court Judge Andrew L. Carter, Jr. weigh in?

So, what do you think?  Should Judge Peck recuse himself in this case or does he provide an effective argument that recusal is unwarranted?  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 Case Law: Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata
 

In Commercial Law Corp., P.C. v. FDIC, No. 10-13275, 2012 U.S. Dist. LEXIS 51437 (E.D. Mich. Apr. 12, 2012), Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

The plaintiff was an attorney who sought to recover fees from the FDIC for services in its capacity as receiver for a bank. The plaintiff claimed that it held valid liens on properties of the bank, and provided an eMail to the bank as evidence. The FDIC disputed the plaintiff’s claim, contended that she was lying and sought to compel her to produce a mirror image of her computer drives to examine relevant data pertaining to the lien documents. Magistrate Judge R. Steven Whalen ordered the plaintiff to compel, and the plaintiff objected.

Judge Cox ruled that there was a proper basis for ordering an exact copy of her drives to be created and also agreed that it was appropriate to be performed by a neutral third-party expert, finding:

  • That such an examination would reveal relevant information pursuant to Rule 26 because “[t]he date Plaintiff executed the security lien is clearly relevant to a defense against Plaintiff’s attorney lien claim”;
  • That there were a number of factors that gave the defendant “sufficient cause for concern” as to the authenticity of the lien documents, shooting down the plaintiff’s claim that the court was simply following a “hunch”;
  • That a third-party expert is an appropriate way to execute the examination.

Despite the fact that the defendant did not request metadata nor specify the format of the documents in its initial discovery request, Judge Cox permitted an expert to obtain relevant metadata. Judge Cox noted:

“It is clear from the parties’ pleadings that Defendant’s concern regarding the legitimacy of the lien documents intensified during the course of discovery. Specifically, Defendant did not obtain the January 18, 2010 email [claiming the lien documents were attached] until it deposed Karl Haiser in August of 2011, well after it submitted its first discovery requests to Plaintiff. “

As a result, the plaintiff’s objections to the Magistrate Judge Whalen’s order were overruled.

So, what do you think?  Should the defendant have been granted another opportunity at the metadata or should the plaintiff’s objections have been granted?  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 Trends: X1 Social Discovery – Social Media Discovery for Professionals
 

According to EDDUpdate.com, social media will be eclipsing email as the primary discovery resource within three years.  Social media has become a normal part of our everyday life as we share our photos on Facebook, tweet news on Twitter, and make professional connections on LinkedIn.  We’ve previously covered social media archiving tools here, highlighting a firm named Smarsh, and the need for effective electronic discovery methods is only growing by the day.  As you can imagine, the sheer amount of content being generated is astounding.  Twitter CEO Dick Costolo announced on June 6th that Twitter had broken the 400 million tweet-per-day barrier, up 18% from 340 million back in March.  These aren’t simply meaningless ones and zeroes, either. X1 Discovery has information for 689 cases related to social media discovery from 2010 and 2011 linked on their website, making it clear just how many cases are being affected by social media these days.

With regard to ESI on social media networks, X1 Discovery features a solution called X1 Social Discovery, which is described as “the industry's first investigative solution specifically designed to enable eDiscovery and computer forensics professionals to effectively address social media content.  X1 Social Discovery provides for a powerful platform to collect, authenticate, search, review and produce electronically stored information (ESI) from popular social media sites, such as Facebook, Twitter and LinkedIn.”

We reached out to X1 Discovery for more information about X1 Social Discovery, especially with regard as to what sort of challenges faces a new tool developed for a new type of information.  For example, why isn’t support for Google+, Google’s fledgling social network, offered?  X1 Discovery Executive Vice President for Sales and Business Development, Skip Lindsey, addressed that question accordingly:

“Our system can be purposed to accommodate a wide variety of use cases and we are constantly working with clients to understand their requirements to further enhance the product.  As you are aware there are a staggering number of potential social media systems to be collected from, but in terms of frequency of use, Facebook, Twitter and Linkedin are far and away the most prominent and there is a lot of constant time and attention we provide to ensure the accuracy and completeness of the data we obtain from those sites. We use a combination of direct API’s to the most popular systems, and have incorporated comprehensive web crawling and single page web capture into X1 Social Discovery to allow capture of virtually any web source that the operator can access. Google + is on the roadmap and we plan support in the near future.”

So, who is going to benefit most from X1 Social Discovery, and how is it different than an archiving tool like Smarsh?  According to Lindsay:

“X1 Social Discovery is installable software, not a service. This means that clients can deploy quickly and do not incur any additional usage charges for case work. Our investigative interface and workflow are unique in our opinion and better suited to professional investigators, law enforcement and eDiscovery professionals that other products that we have seen which work with social media content. Many of these other systems were created for the purpose of compliance archiving of web sites and do not address the investigation and litigation support needs of our client base. We feel that the value proposition of X1 Social Discovery is hard to beat in terms of its functionality, defensibility, and cost of ownership.”

With so many cases requiring collection by experienced professionals these days, it seems appropriate that there’s a tool like X1 Social Discovery designed for them for collecting social media ESI.

So, what do you think?  Do you collect your own social media ESI or do you use experienced professionals for this collection?  What tools have you used?  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.

State eDiscovery Rules: Pennsylvania Supreme Court Amends eDiscovery Rules, Rejects Federal Rules
 

Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state.  However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.”  Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.

The explanatory comment also discusses the “Proportionality Standard” and its application to electronic discovery, as well as “Tools for Addressing Electronically Stored Information”.  When it comes to proportionality, Pennsylvania courts are required to consider:

“(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

(v) any other factors relevant under the circumstances.”

When it comes to tools for addressing ESI, the comment stated that "[p]arties and courts may consider tools such as electronic searching, sampling, cost sharing and non-waiver agreements to fairly allocate discovery burdens and costs. When using non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties."

The amendments affect rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011.  For example, in Rule 4009.1, the court added the phrase "electronically stored information" to the "production of documents and things" a party may request. It also added a subsection that a party requesting ESI "may specify the format in which it is to be produced and a responding party or person not a party may object."  If no format is requested, the rule states the ESI can be produced in the form in which it is typically maintained.

In some cases, the amendments affect only the notes, not the substance of the rule itself.  For example, in a note to Rule 4009.11 regarding the request for production of documents and things, the court said a request for ESI should be "as specific as possible."

So, what do you think?  Was it necessary for Pennsylvania to distance themselves from the Federal rules, or was it a good idea?  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 Trends: Where Does the Money Go? RAND Provides Some Answers
 

The RAND Corporation, a nonprofit research and analysis institution recently published a new 159 page report related to understanding eDiscovery costs entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras that has some interesting findings and recommendations.  To obtain either a paperback copy or download a free eBook of the report, click here.

For the study, the authors requested case-study data from eight Fortune 200 companies and obtained data for 57 large-volume eDiscovery productions (from both traditional lawsuits and regulatory investigations) as well as information from extensive interviews with key legal personnel from the participating companies.  Here are some of the key findings from the research:

  • Review Makes Up the Largest Percentage of eDiscovery Production Costs: By a whopping amount, the major cost component in their cases was the review of documents for relevance, responsiveness, and privilege (typically about 73 percent). Collection, on the other hand, only constituted about 8 percent of expenditures for the cases in the study, while processing costs constituted about 19 percent in the cases.  It costs about $14,000 to review each gigabyte and $20,000 in total production costs for each gigabyte (click here for a previous study on per gigabyte costs).  Review costs would have to be reduced by about 75% in order to make those costs comparable to processing, the next highest component.
  • Outside Counsel Makes Up the Largest Percentage of eDiscovery Expenditures: Again, by a whopping amount, the major cost component was expenditures for outside counsel services, which constituted about 70 percent of total eDiscovery production costs.  Vendor expenditures were around 26 percent.  Internal expenditures, even with adjustments made for underreporting, were generally around 4 percent of the total.  So, almost all eDiscovery expenditures are outsourced in one way or another.
  • If Conducted in the Traditional Manner, Review Costs Are Difficult to Reduce Significantly: Rates currently paid to “project attorneys during large-scale reviews in the US may well have bottomed out” and foreign review teams are often not a viable option due to “issues related to information security, oversight, maintaining attorney-client privilege, and logistics”.  Increasing the rate of review is also limited as, “[g]iven the trade-off between reading speed and comprehension…it is unrealistic to expect much room for improvement in the rates of unassisted human review”.  The study also notes that techniques for grouping documents, such as near-duplicate detection and clustering, while helpful, are “not the answer”.
  • Computer-Categorized Document Review Techniques May Be a Solution: Techniques such as predictive coding have the potential of reducing the review hours by about 75% with about the same level of consistency, resulting in review costs of less than $2,000 and total production costs of less than $7,000.  However, “lack of clear signals from the bench” that the techniques are defensible and lack of confidence by litigants that the techniques are reliable enough to reliably identify the majority of responsive documents and privileged documents are barriers to wide-scale adoption.

Not surprisingly, the recommendations included taking “the bold step of using, publicly and transparently, computer-categorized document review techniques” for large-scale eDiscovery efforts.

So, what do you think?  Are you surprised by the cost numbers?  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 Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production
 

In D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure. 

During the course of discovery in a case where the plaintiff alleged the defendants engaged in conduct that violated the plaintiff’s constitutional and statutory rights, the defendants reviewed 14 boxes of documents for possible production to the plaintiff. Six of those boxes, the “Ryan/McKenna” boxes, were reviewed by a partner at the law firm representing the defendants. The partner marked certain documents as privileged and then instructed a clerical employee to separate privileged and non-privileged documents, to Bates stamp the separated documents, and to burn the non-privileged documents onto a disc for production. The clerical employee failed to follow instructions, and privileged documents were inadvertently produced. 

Despite subsequent events where the defendants could have discovered the mistake, the defendants remained unaware of the accidental disclosure for approximately eight months until the plaintiff attached some of the privileged documents to an exhibit of his brief on an unrelated matter. The intervening events where the defendant failed to notice the production of privileged documents included the following: (1) the defendants voluntarily recalled the disc to reorganize the documents and remove electronic comments inadvertently left on some documents, and then resubmitted the disc to the plaintiff; (2) the defendants again recalled the disc after the plaintiff informed them the new disc was unreadable, and, after a clerical employee performed a “quality control audit” on the disc to ensure the defendants were producing the same set of documents, the defendants again produced the disc; (3) the defendants created a privilege log but did not realize the number of documents for the Ryan/McKenna boxes marked privileged was too small; and (4) after the plaintiff informed them that some of the documents on another disc were out of order, the defendants discovered hundreds of privileged documents from the “borough” boxes, another set of boxes, had been accidentally produced, but the defendants did not re-review the Ryan/McKenna documents that were produced.

Judge Bongiovanni articulated the applicable standard of review under Federal Rule of Evidence 502(b), stating that the factors to be considered in determining whether a waiver occurred are: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.

Judge Bongiovanni had no trouble finding that the defendants “initially” took reasonable precautions to prevent production of privileged documents by devoting sufficient time to review, having a partner personally review all of the Ryan/McKenna documents, delegating to a clerical employee the task of separating privileged and non-privileged documents, and even by reviewing the disc before producing it to the plaintiff.

She then noted that the number and extent of the defendant’s unintentional disclosures were “neutral.”

Turning to the defendants’ efforts to rectify the disclosure, however, Judge Bongiovanni concluded that the defendants “did not take reasonable steps to remedy their error.” She stated, “Defendants should have been aware that something was amiss with their document production long before Plaintiff relied on three privileged documents” in his brief. Furthermore, although the defendants were not obligated to “engage in a post-production review to determine whether any protected communication or information [was] produced by mistake,” once a party is “‘on notice that something [i]s amiss with its document production and privilege review,’ then that party has an obligation to ‘promptly re-assess its procedures and re-check its production.’” The court pointed out that “the combination of the inadvertently produced attorney electronic comments and 728 pages of privileged Borough documents should have put the [ ] Defendants on notice that something had gone profoundly awry with their document production and privilege review.” A “reasonable person” would have rechecked the disc containing the Ryan/McKenna documents, and yet the defendants failed to do so.

Finally, the court also found that the interests of justice favored finding that a waiver occurred because the defendants’ “negligence” led to the inadvertent disclosure of privileged information.

So, what do you think?  Was the ruling fair?  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.

eDiscovery Best Practices: Test Your Searches Before the Meet and Confer
 

One of the very first posts ever on this blog discussed the danger of using wildcards.  For those who haven’t been following the blog from the beginning, here’s a recap.

A couple of years ago, 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 “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and attempt to negotiate a revised search that was more appropriate.

What made that process difficult was the negotiation with opposing counsel.  My client had already agreed on over 200 terms with opposing counsel and had proposed many of those terms, including this one.  The attorneys had prepared these terms without assistance from a technology consultant (I was brought into the project after the terms were negotiated and agreed upon) and without testing any of the terms.

Since they had been agreed upon, opposing counsel was understandably resistant to modifying the terms.  The fact that my client faced having to review all of these files was not their problem.  We were ultimately able to provide a clear indication that many of the terms in this search were non-responsive and were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “mine”, “mineable”, “mined”, “minefield”, “minefields”, “miner”, “miners”, “mines”, “mining” and “minings”.  We were able sort through the “minutia” and “minimize” the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind”.  OK, I’ll stop now.

However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review thousands of additional files that they shouldn’t have had to review, which was a real “mindblower” (sorry, I couldn’t resist).  Had the client included a technical member on the team and had they tested each of these searches before negotiating terms with opposing counsel, they would have been able to figure out which terms were overbroad and would have been better prepared to negotiate favorable search terms for retrieving potentially responsive data.

When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results.  However, if you wait until after the meet and confer with opposing counsel, it can be too late.

So, what do you think?  What steps do you take to assess your data before negotiating search terms?  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: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle
 

Despite a significant inadvertent disclosure of information during Google's litigation with Oracle Corp., U.S. District Judge William Alsup last Thursday (May 31) dismissed claims that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language.

Oracle had accused Google of infringing the "structure, sequence and organization" of 37 of Java's application programming interface (API) application. Referring to this case as “the first of the so-called smartphone war cases”, Alsup ruled in the 41-page decision that the particular Java elements Google replicated were free for all to use under copyright law, noting: "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API". 

Summarizing the validity of Oracle’s claim, Judge Alsup stated:

“Of the 166 Java packages, 129 were not violated in any way.  Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines.  Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof – even though it copyrighted only one implementation.  To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.”

Judge Alsup indicated that he was not ruling that Java API packages are free for all to use, stating: “This order does not hold that Java API packages are free for all to use without license.  It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act.”

Oracle filed suit against Google in San Francisco federal court in August 2011 claiming that the Android mobile operating system infringed Java copyrights and patents (to which Oracle obtained the rights after acquiring Sun Microsystems in 2010) and once valued damages in the case at $6 billion. In the first phase of the trial, the jury returned a verdict that said Google infringed the structure, sequence, and organization of 37 API packages; however, they deadlocked on Google's affirmative defense that it only made fair use of Java technology and Alsup had not yet ruled on whether the APIs could be copyrighted.  He has now.

Oracle is expected to appeal.

So, what do you think?  Will Oracle appeal and should they do so?  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 Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”
 

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, (D. Neb. May 18, 2012), that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate. 

In this trademark action, Judge Zwart awarded sanctions of extensive discovery costs against a defendant that destroyed discoverable electronic evidence, failed to search for and locate other electronically stored information (ESI), and made false representations in affidavits and in court regarding its efforts to search for this evidence. In addition, she allowed the plaintiff to conduct discovery by contacting directly the defendant’s current and former clients, despite the court’s acknowledgment that such contact could harm the defendant’s business. Finally, Judge Zwart recommended an adverse jury instruction be given at trial.

Throughout a lengthy and contentious discovery process, the defendant claimed that its failure to produce any electronic documents containing the plaintiff’s mark demonstrated that there simply were no such documents. What the court ultimately discovered, however, was that no documents were produced for very different reasons: (1) the defendant appeared to have a virtually nonexistent records retention policy; (2) the defendant recovered its external hard drives from its landlord just before the landlord received a subpoena for the hard drives, leading the landlord to claim he did not possess the files; (3) to “comply” with discovery requests, the defendant had an employee who is not a computer expert conduct a keyword search consisting of one word (“Kiewit”) of the defendant’s files (from her own workstation) for the name of the plaintiff’s mark and recovered only two nonresponsive documents; and (4) the defendant discarded what it claimed was a non-functioning server the same month that it received notice of the plaintiff’s discovery requests.

The court ordered a forensic examination of the defendants’ computer systems that revealed thousands of documents containing the keyword “Kiewit” on its face as well as in its metadata. It also revealed at least one document that had been previously produced was missing from the electronic files, contributing to the evidence of spoliation. In ruling, the court pointed out that “considering Defendant’s very liberal policy of not keeping documents, consolidating their records in one location, or organizing their files, their efforts to locate relevant electronic files were woefully inadequate.”

As a consequence of the defendants’ “obstreperous” conduct, Judge Zwart found sanctions were appropriate, including monetary awards and an adverse jury instruction. She granted sanctions pursuant to its “authority to sanction the misconduct of parties and their attorneys . . . derived from the Federal Rules of Civil Procedure and the inherent power of the court,” as well as its “power to shape the appropriate remedy including default judgment, striking pleadings, an adverse jury instruction, and an award of attorney’s fees and costs” derived from precedent. Judge Zwart noted, “The most severe sanctions are reserved for those litigants demonstrating ‘blatant disregard of the Court’s orders and discovery rules’ [and] engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case.’”

Furthermore, Judge Zwart found the defendants’ conduct dictated that the plaintiff should be permitted to conduct third-party discovery. The plaintiff argued that it needed to contact the defendants’ clients in an effort to determine whether and how the defendants used the plaintiff’s trademark, whereas the defendants argued that they would suffer “irreparable harm” should the plaintiff reach out to their current and former clients. Despite courts’ general reluctance to allow direct contact with litigants’ clients in intellectual property cases, Judge Zwart here found that the plaintiff showed the clients’ information was “relevant and necessary”; moreover, because “Defendants are simply not a reliable source of information” and they “continue to attempt to use client confidentiality as a means of preventing Plaintiff from discovering relevant information,” the plaintiff’s contact with the clients would be proper.

So, what do you think?  Did the court’s sanctions go far enough or should they have been even tougher?  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.

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