Analysis

2017 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility, proportionality and cooperation as well as a couple of cases related to eDiscovery cost and legal fee reimbursement.  Today, let’s take a look back at cases related to discovery about discovery, technology assisted review, form of production disputes, objections to production requests and an interesting dispute between an eDiscovery provider and their former sales people.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

But first, it’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on Thursday’s webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

DISCOVERY ON DISCOVERY

When parties can’t agree on the scope of discovery, sometimes courts have to intervene and dictate the scope of discovery to the parties.  Here are two cases where courts did just that – in one of them, this was the second time this judge specified search terms for the parties to use:

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI, finding that the plaintiff had failed to sufficiently narrow its search terms by introducing 72 spelling variations on the five terms it proposed.  Judge Wells also denied the defendants’ Motion for Order to Show Cause and for Sanctions, finding that the defendants had failed to provide any “certification that the parties made reasonable efforts to reach agreement on the disputed matters.”

In a Second Case, Judge Specifies Search Terms for Parties to Use: In Abbott v. Wyoming Cty. Sheriff’s Office, New York Magistrate Judge Hugh B. Scott granted the plaintiff’s motion to compel and defendant’s cross-motion in part, ordering the defendant to perform additional production over a disputed time period, based on a list of search terms ordered by Judge Scott.

TECHNOLOGY ASSISTED REVIEW

While courts have certainly approved the use of TAR, parties still disagree how it should be done.  Here are two cases where courts did just that – in one of them, the court “rather reluctantly” made a blanket statement as to whether keyword search should precede TAR or not:

Court Determines TAR Without Keyword Search Culling First is Preferable: In FCA US, LLC v. Cummins, Inc., Michigan District Judge Avern Cohn “rather reluctantly” decided a dispute between the plaintiff and defendant on whether the universe of electronic material subject to Technology Assisted Review (TAR) review should first be culled by the use of search terms by agreeing with the plaintiff that “[a]pplying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method.”

Court Disagrees with Plaintiff’s Contentions that Defendant’s TAR Process is Defective: In Winfield, et al. v. City of New York, New York Magistrate Judge Katharine H. Parker, after conducting an in camera review of the defendant’s TAR process and a sample set of documents, granted in part and denied in part the plaintiffs’ motion, ordering the defendant to provide copies of specific documents where the parties disagreed on their responsiveness and a random sample of 300 additional documents deemed non-responsive by the defendant.  Judge Parker denied the plaintiff’s request for information about the defendant’s TAR process, finding no evidence of gross negligence or unreasonableness in their process.

OBJECTIONS TO PRODUCTION REQUESTS

Here’s a new category – one where the use of boilerplate objections came under harsh scrutiny by the courts.  Here are four cases related to objections to production requests, including one where the party was able to effectively object to the request as burdensome by providing details to back up their claims:

Judge Peck Objects to Defendant’s Form of Objections: In Fischer v. Forrest, New York Magistrate Judge Andrew J. Peck ordered the defendants “to revise their Responses to comply with the Rules”, specifically Rule 34(b)(2)(B) and Rule 34(b)(2)(C), amended in December 2015 requiring objections to be stated with specificity and directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.

Court Tells Litigants “NO MORE WARNINGS” When It Comes to Boilerplate Discovery Objections: In Liguria Foods, Inc. v. Griffith Laboratories, Inc., Iowa District Judge Mark W. Bennett declined to sanction the parties for issuing boilerplate objections, but strongly warned them that the use of boilerplate objections in the future would place counsel and their clients at risk for significant sanctions.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests: In Wal-Mart Stores, Inc. et. al. v. Texas Alcoholic Beverages Commission, et. al., Texas Magistrate Judge Andrew W. Austin (no relation) denied the defendant’s motion to overrule the plaintiff’s objections to the defendant’s discovery requests, due to the fact that the plaintiff stated it was withholding documents based on each of the objections.

Court Rules that Plaintiff’s Request for Data from Defendant is “Extraordinarily Burdensome”: In Solo v. United Parcel Services Co., Michigan Magistrate Judge R. Steven Whalen agreed that the defendant showed that the level of data requested by the plaintiff “would be extraordinarily burdensome” and ordered the parties to discuss the defendant’s proposed methodology and “meet, confer, and agree on a mutually acceptable sampling methodology” if the plaintiff did not agree to the defendant’s approach.

FORM OF PRODUCTION DISPUTES

Give me my metadata!  That’s what some parties appeared to be saying, either initially or after the data produced to them was deemed to be questionable.  We had seven cases this year involving form of production disputes, including one where a company whistleblower won a $10.8 million judgment when metadata showed that the performance evaluation cited in his dismissal was actually created after he was terminated:

Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: In Lifetouch National School Studios, Inc. v. Roles, Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.

Court Orders Plaintiff to Produce Emails with Original Metadata: In Singh et. al. v. Hancock Natural Resources Group, Inc. et. al., California Magistrate Judge Jennifer L. Thurston granted the defendants’ motion to compel (in part), ordering the plaintiffs’ to “produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer”.

Metadata Plays Key Role in $10.8 Million Whistleblower Lawsuit Verdict: Earlier this month, federal jurors awarded nearly $8 million to the former general counsel of a company who says he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law.  That award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.

Defendant Ordered to Reproduce ESI in Native Format, As Originally Requested by Plaintiffs: In Morgan Hill Concerned Parents Assoc. v. California Dept. of Education, California Magistrate Judge Allison Claire granted the plaintiffs’ motion to compel the defendant to produce emails in native format with all metadata attached, but denied the plaintiffs’ motion for sanctions without prejudice to its renewal using Sacramento rates for attorneys’ fees.  Judge Claire also denied the defendant’s motion for a protective order regarding production of the native format data, and its motion for sanctions.

Defendant Not Required to Modify Production After Plaintiff Fails to Demonstrate Prejudice: In Excel Enterprises, LLC v. Winona PVD Coatings, LLC, Indiana Magistrate Judge Michael G. Gotsch, Sr. ruled that despite the fact that the defendant failed to demonstrate that it produced documents kept in the ordinary course of business, the plaintiff failed to demonstrate any prejudice suffered from the current state of the production and granted the defendant’s motion to reconsider the court’s earlier order regarding the format of the defendant’s production.

After Metadata Shows Agreement Documents to Be Unreliable, Defendant’s “Hans” are Tied: In Ensing v. Ensing, et. al., Vice Chancellor Slights ruled for the plaintiff in the case and concluding that the defendant “has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, ordering him to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

Texas Supreme Court Denies Request for Mandamus Relief without Prejudice Over Native File Production: In the case In Re State Farm Lloyds, Relator, the Texas Supreme Court, in an opinion delivered by Justice Eva M. Guzman, denied the petitions for writ of mandamus without prejudice, “affording the relator an opportunity to reurge its discovery objections” (regarding the requesting party’s request for a native file production) to the trial court in light of its opinion.

And, there was also this case – a dispute between an eDiscovery provider and its former sales agents which called into question the scope of non-compete agreements.

We’re only halfway done!  Tomorrow, we will cover cases related to possession, custody and control, subpoena of cloud provider data, waiver of privilege and the first part of the cases relating to sanctions and spoliation (as always, there were enough of those to split up over two days).  Stay tuned!

Want to take a look at cases we covered the previous six years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Disagrees with Plaintiff’s Contentions that Defendant’s TAR Process is Defective: eDiscovery Case Law

In Winfield, et al. v. City of New York, No. 15-CV-05236 (LTS) (KHP) (S.D.N.Y. Nov. 27, 2017), New York Magistrate Judge Katharine H. Parker, after conducting an in camera review of the defendant’s TAR process and a sample set of documents, granted in part and denied in part the plaintiffs’ motion, ordering the defendant to provide copies of specific documents where the parties disagreed on their responsiveness and a random sample of 300 additional documents deemed non-responsive by the defendant.  Judge Parker denied the plaintiff’s request for information about the defendant’s TAR process, finding no evidence of gross negligence or unreasonableness in their process.

Case Background

In this dispute over alleged discrimination in the City’s affordable housing program, the parties had numerous disputes over the handling of discovery by the defendant in the case.  The plaintiffs lodged numerous complaints about the pace of discovery and document review, which initially involved only manual linear review of documents, so the Court directed the defendant to complete linear review as to certain custodians and begin using Technology Assisted Review (“TAR”) software for the rest of the collection.  After a dispute over the search terms selected for use, the plaintiffs proposed over 800 additional search terms to be run on certain custodians, most of which (after negotiation) were accepted by the defendant (despite a stated additional cost of $248,000 to review the documents).

The defendant proposed to use its TAR software for this review, but the plaintiffs objected, contending that the defendant had over-designated documents as privileged and non-responsive, using an “impermissibly narrow view of responsiveness” during its review process.  To support its contention, the plaintiffs produced certain documents to the Court that the defendant produced inadvertently (including 5 inadvertently produced slip sheets of documents not produced), which they contended should have been marked responsive and relevant.  As a result, the Court required the defendant to submit a letter for in camera review describing its predictive coding process and training for document reviewers.  The Court also required the defendant to provide a privilege log for a sample set of 80 documents that it designated as privileged in its initial review.  Out of those 80 documents, the defendant maintained its original privilege assertions over only 20 documents, finding 36 of them non-privileged and producing them as responsive and another 15 of them as non-responsive.

As a result, the plaintiffs filed a motion requesting random samples of several categories of documents and also sought information about the TAR ranking system used by the defendant and all materials submitted by the defendant for the Court’s in camera review relating to predictive coding.

Judge’s Ruling

Judge Parker noted that both parties did “misconstrue the Court’s rulings during the February 16, 2017 conference” and ordered the defendant to “expand its search for documents responsive to Plaintiffs’ document requests as it construed this Court’s prior ruling too narrowly”, indicating that the plaintiffs should meet and confer with the defendant after reviewing the additional production if they “believe that the City impermissibly withheld documents responsive to specific requests”.

As for the plaintiffs’ challenges to the defendant’s TAR process, Judge Parker referenced Hyles v. New York City, where Judge Andrew Peck, referencing Sedona Principle 6, stated the producing party is in the best position to “evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”  Judge Parker also noted that “[c]ourts are split as to the degree of transparency required by the producing party as to its predictive coding process”, citing cases that considered seed sets as work product and other cases that supported transparency of seed sets.  Relying on her in camera review of the materials provided by the defendant, Judge Parker concluded “that the City appropriately trained and utilized its TAR system”, noting that the defendant’s seed set “included over 7,200 documents that were reviewed by the City’s document review team and marked as responsive or non-responsive in order to train the system” and that “the City provided detailed training to its document review team as to the issues in the case.”

As a result, Judge Parker ordered the defendant “to produce the five ‘slip-sheeted’ documents and the 15 NR {non-responsive documents reclassified from privileged} Documents”, “to provide to Plaintiffs a sample of 300 non-privileged documents in total from the HPD custodians and the Mayor’s Office” and to “provide Plaintiffs with a random sample of 100 non-privileged, non-responsive documents in total from the DCP/Banks review population” (after applying the plaintiffs’ search terms and utilizing TAR on that collection).  Judge Parker ordered the parties to meet and confer on any disputes “with the understanding that reasonableness and proportionality, not perfection and scorched-earth, must be their guiding principles.”  Judge Parker denied the plaintiffs’ request for information about the defendant’s TAR process (but “encouraged” the defendant to share information with the plaintiffs) and denied the plaintiffs’ request to the defendant’s in camera submissions as being protected by the work product privilege.

So, what do you think?  Should TAR ranking systems and seed sets be considered work product or should they be transparent?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

Sometimes, the Data You Receive Isn’t Ready to Rock and Roll: eDiscovery Best Practices

Having just encountered a similar situation with one of my clients, I thought this was a topic worth revisiting.  Just because data is produced to you, it doesn’t mean that data is ready to “rock and roll”.

Here’s a case in point: I once worked with a client that received a multi-part production from the other side (via another party involved in the litigation, per agreement between the parties) that included image files, OCR text files and metadata (yes, the dreaded “load file” production).  The files that my client received were produced over several months to several other parties in the litigation.  The production contained numerous emails, each of which (of course) included an email sent date.  Can you guess which format the email sent date was provided in?  Here are some choices (using today’s date and 1:00 PM as an example):

  • 09/11/2017 13:00:00
  • 9/11/2017 1:00 PM
  • September 11, 2017 1:00 PM
  • Sep-17-2017 1:00 PM
  • 2013/09/11 13:00:00

The answer: all of them.

Because there were several productions to different parties with (apparently) different format agreements, my client didn’t have the option to request the data to be reproduced in a standard format.  Not only that, the name of the produced metadata field wasn’t consistent between productions – in about 15 percent of the documents the producing party named the field email_date_sent, in the rest of them, it was simply named date_sent.

What a mess, right?

If you know how to fix this issue, then – congrats! – you can probably stop reading.  Our client (both then and recently), didn’t know how.  Fortunately, at CloudNine, there are plenty of computer “geeks” to address problems like this (including me).

In the example above, we had to standardize the format of the dates into one standard format in one field.  We used a combination of SQL queries to get the data into one field and string commands and regular expressions to manipulate dates that didn’t fit a standard SQL date format by re-parsing them into a correct date format.  For example, the date 2017/09/11 was reparsed into 09/11/2017.

Getting the dates into a standard format in a single field not only enabled us to load that data successfully into the CloudNine platform, it also enabled us to then identify (in combination with other standard email metadata fields) duplicates in the collection based on those metadata fields.  As a result, we were able to exclude a significant percentage of the emails as duplicates, which wouldn’t have been possible before the data was converted and standardized.

Over the years, I’ve seen many examples where data (either from our side or the other side) needs to be converted.  It happens more than you think.  When that happens, it’s good to work with a solutions provider that has several “geeks” on their team that can provide that service.  Sometimes, having data that’s ready to “rock and roll” takes some work.

So, what do you think?  Have you received productions that needed conversion?  If so, what did you do?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.