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Case Law

eDiscovery Case Law: Counsel, The Inadvertent Disclosure "Buck" Stops With You
 

Here is yet another case of inadvertently disclosed privileged documents.  In Blythe v. Bell, 2012 NCBC 42, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

In this case, the defendants produced 3.5 million documents on two hard drives which were ultimately determined to contain approximately 1,700 potentially privileged documents (the documents were to or from the outside counsel’s domain, an easy criteria to identify potentially privileged documents).  The defendants contracted with an outside consultant (Computer Ants) to obtain, process, and search their eMails for responsive documents.  For their part, the plaintiffs questioned whether Computer Ants was sufficiently qualified as an expert in electronic discovery to reasonably justify Defendants’ reliance on it to protect against the production of privileged information.  Prior to establishing Computer Ants, the owner (Thomas Scott) had worked as a truck driver, a Bass Pro Shop Security Manager, a respiratory therapist, and a financial auditor for a retail seller.  He had “never provided any forensic computer services in the context of a lawsuit” nor had ever “been engaged as a computer expert or provided an opinion in any legal proceeding”.  Sounds as if the plaintiffs had a legitimate concern.

Judge Gale used a five-factor balancing test previously used in Morris v. Scenera Research, LLC, which considers: “(1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosures; and (5) the overriding interests of justice.”

Judge Gale noted that “One federal district court characterizes the need for advance efforts to protect against waiver as “’paramount.’”  However, the defendant produced “the hard drives prepared by Computer Ants without any review or sampling or other quality assurance effort to assess whether the consultant’s efforts had been successful in eliminating privileged communications. Defendants admit that they relied exclusively on ‘this contractor and this procedure’ to filter out documents potentially subject to the attorney-client privilege.”

Since “the multi-factor balancing test applied by the federal courts on this record is controlled by the first factor”, Judge Gale, while noting that the “court takes no pleasure in finding the waiver of attorney-client privilege”, nonetheless had no choice but to do so based on the first factor alone.

So, what do you think?  How do you evaluate your eDiscovery provider to ensure their qualifications?  What precautions do you take to prevent inadvertent disclosure?  Please share any comments you might have or if you’d like to know more about a particular topic.

Source: JD Supra, via Brooks, Pierce, McLendon, Humphrey & Leonard LLP

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 History: Zubulake’s e-Discovery
 

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law.  When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly.  A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

Laura A. Zubulake, the plaintiff in the Zubulake vs. UBS Warburg case, has written a new book: Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  It is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.

Zubulake begins the story by developing an understanding of the Wall Street setting of her employer within which she worked for over twenty years and the growing importance of email in communications within that work environment.  It continues through a timeline of the allegations and the evidence that supported those allegations leading up to her filing of a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and her subsequent dismissal from the firm.  This Allegations & Evidence chapter is particularly enlightening to those who may be familiar with the landmark opinions but not the underlying evidence and how that evidence to prove her case came together through the various productions (including the court-ordered productions from backup tapes).  The story continues through the filing of the case and the beginning of the discovery process and proceeds through the events leading up to each of the landmark opinions (with a separate chapter devoted each to Zubulake I, III, IV and V), then subsequently through trial, the jury verdict and the final resolution of the case.

Throughout the book, Zubulake relays her experiences, successes, mistakes, thought processes and feelings during the events and the difficulties and isolation of being an individual plaintiff in a three-year litigation process.  She also weighs in on the significance of each of the opinions, including one ruling by Judge Shira Scheindlin that may not have had as much impact on the outcome as you might think.  For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won.  Everybody loves a good “David versus Goliath story”, right?

The book is available at Amazon and also at CreateSpace.  Look for my interview with Laura regarding the book in this blog next week.

So, what do you think?  Are you familiar with the Zubulake opinions?  Have you read the book?  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: On the Eve of Trial with Apple, Samsung is Dealt Adverse Inference Sanction
 

In Apple Inc. v. Samsung Elecs. Co., Case No.: C 11-1846 LHK (PSG) (N.D. Cal.), California Magistrate Judge Paul S. Grewal stated last week that jurors can presume “adverse inference” from Samsung’s automatically deletion of emails that Apple requested in pre-trial discovery.

Two of the world’s dominant smartphone makers are locked into lawsuits against each other all over the globe as they fiercely compete in the exploding mobile handset market. Both multinationals have brought their best weapons available to the game, with Apple asserting a number of technical and design patents along with trade dress rights. Samsung is, in return, asserting their “FRAND” (“Fair, Reasonable and Non-Discriminatory) patents against Apple. The debate rages online about whether a rectangular slab of glass should be able to be patented and whether Samsung is abusing their FRAND patents.

As for this case, Samsung’s proprietary “mySingle” email system is at the center of this discussion. In this web-based system, which Samsung has argued is in line with Korean law, every two weeks any emails not manually saved will automatically be deleted.  Unfortunately, failure to turn “off” the auto-delete function resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.

Judge Grewal had harsh words in his order, noting the trouble Samsung has faced in the past:

“Samsung’s auto-delete email function is no stranger to the federal courts. Over seven years ago, in Mosaid v. Samsung, the District of New Jersey addressed the “rolling basis” by which Samsung email was deleted or otherwise rendered inaccessible. Mosaid also addressed Samsung’s decision not to flip an “off-switch” even after litigation began. After concluding that Samsung’s practices resulted in the destruction of relevant emails, and that “common sense dictates that [Samsung] was more likely to have been threatened by that evidence,” Mosaid affirmed the imposition of both an adverse inference and monetary sanctions.

Rather than building itself an off-switch—and using it—in future litigation such as this one, Samsung appears to have adopted the alternative approach of “mend it don’t end it.” As explained below, however, Samsung’s mend, especially during the critical seven months after a reasonable party in the same circumstances would have reasonably foreseen this suit, fell short of what it needed to do”.

The trial starts today and while no one yet knows how the jury will rule, Judge Grewal’s instructions to the jury regarding the adverse inference certainly won’t help Samsung’s case:

“Samsung has failed to prevent the destruction of relevant evidence for Apple’s use in this litigation. This is known as the “spoliation of evidence.

I instruct you, as a matter of law, that Samsung failed to preserve evidence after its duty to preserve arose. This failure resulted from its failure to perform its discovery obligations.

You also may presume that Apple has met its burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to Apple.

Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict.”

Here are some other cases with adverse inference sanctions previously covered by the blog, including this one, this one, this one and this one. 

So, what do you think?  Will the “adverse inference” order decide this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Twitter to Appeal Decision in People v. Harris
 

As reported by The Wall Street Journal, Twitter plans to appeal a court order requiring the company to produce messages posted by Malcolm Harris, an Occupy Wall Street activist facing criminal charges.  He was one of more than 700 people arrested last October when demonstrators marched onto the Brooklyn Bridge roadway.

Back in April, Harris 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”.

On June 30, in People v. Harris, 2011NY080152, 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. After the April 20, 2012 decision, Twitter changed its terms and policy effective May 17, 2012. The newly added portion states that: ‘You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.’”  So, it would be interesting to see if the same ruling would be applied for “tweets” and other information posted after that date.

“We're appealing the Harris decision,” wrote Benjamin Lee, Twitter's lead litigator. “It doesn't strike the right balance between the rights of users and the interests of law enforcement”.

Martin Stolar, the attorney representing Harris, praised Twitter's decision. "Privacy interests in the information age are a special category which has to be freshly looked at by the courts," he said in a statement. "We are pleased that Twitter sees the far-reaching implications of the ruling against Mr. Harris and against Twitter."

So, what do you think?  Will Twitter succeed in its appeal?  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 Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding
 

When most people think of the horrors of Friday the 13th, they think of Jason Voorhees.  When US Immigration and Customs thinks of Friday the 13th horrors, do they think of Judge Shira Scheindlin?

As noted in Law Technology News (Judge Scheindlin Issues Strong Opinion on Custodian Self-Collection, written by Ralph Losey, a previous thought leader interviewee on this blog), New York District Judge Scheindlin issued a decision last Friday (July 13) addressing the adequacy of searching and self-collection by government entity custodians in response to Freedom of Information Act (FOIA) requests.  As Losey notes, this is her fifth decision in National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al., including one that was later withdrawn.

Regarding the defendant’s question as to “why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis” (i.e., self-collect), Judge Scheindlin responded as follows:

“There are two answers to defendants' question. First, custodians cannot 'be trusted to run effective searches,' without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that 'contain reasonable specificity of detail rather than merely conclusory statements.' Defendants' counsel recognize that, for over twenty years, courts have required that these affidavits 'set [ ] forth the search terms and the type of search performed.' But, somehow, DHS, ICE, and the FBI have not gotten the message. So it bears repetition: the government will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched the full text of documents.”

“The second answer to defendants' question has emerged from scholarship and caselaw only in recent years: most custodians cannot be 'trusted' to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.”

“Simple keyword searching is often not enough: 'Even in the simplest case requiring a search of on-line e-mail, there is no guarantee that using keywords will always prove sufficient.' There is increasingly strong evidence that '[k]eyword search[ing] is not nearly as effective at identifying relevant information as many lawyers would like to believe.' As Judge Andrew Peck — one of this Court's experts in e-discovery — recently put it: 'In too many cases, however, the way lawyers choose keywords is the equivalent of the child's game of 'Go Fish' … keyword searches usually are not very effective.'”

Regarding search best practices and predictive coding, Judge Scheindlin noted:

“There are emerging best practices for dealing with these shortcomings and they are explained in detail elsewhere. There is a 'need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce emails or other electronically stored information.' And beyond the use of keyword search, parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents.”

“Through iterative learning, these methods (known as 'computer-assisted' or 'predictive' coding) allow humans to teach computers what documents are and are not responsive to a particular FOIA or discovery request and they can significantly increase the effectiveness and efficiency of searches. In short, a review of the literature makes it abundantly clear that a court cannot simply trust the defendant agencies' unsupported assertions that their lay custodians have designed and conducted a reasonable search.”

Losey notes that “A classic analogy is that self-collection is equivalent to the fox guarding the hen house. With her latest opinion, Schiendlin [sic] includes the FBI and other agencies as foxes not to be trusted when it comes to searching their own email.”

So, what do you think?  Will this become another landmark decision by Judge Scheindlin?  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: “Tweets” Are Public and Must Be Produced, Judge Rules
 

First, Malcolm Harris 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”.  Now, the criminal court judge has ruled on Twitter’s motion.

On June 30, in People v. Harris, 2011NY080152, New York Criminal Court Judge Matthew Sciarrino Jr. ruled that Twitter must produce tweets and user information of, Harris, an Occupy Wall Street protester, who clashed with New York Police back in October of last year and faces disorderly conduct charges.

Noting that “The court order is not unreasonably burdensome to Twitter, as it does not take much to search and provide the data to the court.”, Judge Sciarrino provided an analogy regarding the privacy of the Twitter account information, as follows:

“Consider the following: a man walks to his window, opens the window, and screams down to a young lady, ‘I'm sorry I hit you, please come back upstairs.’ At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, ‘What did the defendant yell?’ Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.”

Continuing, Judge Sciarrino stated: “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. After the April 20, 2012 decision, Twitter changed its terms and policy effective May 17, 2012. The newly added portion states that: ‘You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.’”  So, it would be interesting to see if the same ruling would be applied for “tweets” and other information posted after that date.

Judge Sciarrino did note that the government must obtain a search warrant to compel a provider of Electronic Communication Service (“ECS”) to disclose contents of communication in its possession that are in temporary "electronic storage" for 180 days or less (18 USC §2703[a]).  So, he ordered “that Twitter disclose all non-content information and content information from September 15, 2011 to December 30, 2011” related to Harris’ account.

So, what do you think?  Did the judge make the right call or should Twitter have been able to quash the subpoena?  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: The Da Silva Moore Case Has Class (Certification, That Is)
 

As noted in an article written by Mark Hamblett in Law Technology News, Judge Andrew Carter of the U.S. District Court for the Southern District of New York has granted conditional class certification in the Da Silva Moore v. Publicis Groupe & MSL Group case.

In this case, women employees of the advertising conglomerate Publicis Groupe and its U.S. subsidiary, MSL, have accused their employer of company-wide discrimination, pregnancy discrimination, and a practice of keeping women at entry-level positions with few opportunities for promotion.

Judge Carter concluded that “Plaintiffs have met their burden by making a modest factual showing to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. They submit sufficient information that because of a common pay scale, they were paid wages lower than the wages paid to men for the performance of substantially equal work. The information also reveals that Plaintiffs had similar responsibilities as other professionals with the same title. Defendants may disagree with Plaintiffs' contentions, but the Court cannot hold Plaintiffs to a higher standard simply because it is an EPA action rather an action brought under the FLSA.”

“Courts have conditionally certified classes where the plaintiffs have different job functions,” Judge Carter noted, indicating that “[p]laintiffs have to make a mere showing that they are similarly situated to themselves and the potential opt-in members and Plaintiffs here have accomplished their goal.”

This is just the latest development in this test case for the use of computer-assisted coding to search electronic documents for responsive discovery. On February 24, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

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

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

So, what do you think?  What will happen in this case next?  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: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims
 

In Grabenstein v. Arrow Electronics, Inc., No. 10-cv-02348-MSK-KLM, 2012 U.S. Dist. LEXIS 56204 (D. Colo. Apr.23, 2012), Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist.  The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

In this employment discrimination case, the plaintiff filed a motion for sanctions, claiming that the defendant failed to retain all eMail messages exchanged internally as well as between the defendant and the plaintiff’s insurer, MetLife, regarding the plaintiff’s short-term disability leave.

Defining the requirement for a finding of spoliation, Judge Mix stated, “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.”

Here, Judge Mix found the plaintiff’s contentions that relevant eMails were missing to be “fatally unclear” since neither the plaintiff nor the defendant knew whether other such eMails existed. The plaintiff was also unable to provide any verification that MetLife’s log of relevant eMails exchanged with the defendant was incomplete or had been altered. As a result, Judge Mix was “unable to find that the e-mails produced by MetLife are incomplete and that Defendant destroyed the only complete versions of those e-mails”.

There were some eMails which the defendant admittedly did not preserve.  As to whether those eMails had been deleted after the duty to preserve them had arisen, Judge Mix discussed the standard under the spoliation doctrine: “‘[I]n most cases, the duty to preserve evidence is triggered by the filing of a lawsuit. However, the obligation to preserve evidence may arise even earlier if a party has notice that future litigation is likely.’” Here, Judge Mix found that the plaintiff had not produced any evidence that the defendant should have anticipated litigation prior to receiving actual notice of the filing of the lawsuit. The plaintiff was also unable to show any evidence at all when the defendant had destroyed the eMails that would rebut the defendant’s attorney’s statement that the eMails were deleted prior to the start of litigation. As a result, the plaintiff did not meet its burden of establishing that the defendant had violated its duty to preserve.

While finding that the defendants had violated a records retention policy regulation applicable to the Equal Employment Opportunity Commission when it deleted the eMails, Judge Mix found that it had not done so in bad faith, and it had been simply following its own eMail retention policy in the normal course of business. Accordingly, the plaintiff’s motion for sanctions was denied.

So, what do you think?  Was the ruling fair or should the defendants have been sanctioned for the deleted eMails?  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: 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.