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Collection

eDiscovery Trends: A Site Designed to Facilitate Meet and Confer Conferences
 

The past two days, we discussed the basics of the Rule 26(f) “meet and confer” conference and details regarding the topics to discuss during that conference.  Hopefully, you found that review informative.

Now, as noted in a recent Law Technology News article by Sean Doherty, there’s a web application to facilitate the process to prepare for and conduct the Rule 26(f) conference.

MeetandConfer.com, provided by 26F LLC, was created to help attorneys prepare for court mandated “meet and confer” meetings.  The application is designed for law firms and corporate clients to help them determine the content, scope, and extent of ESI associated with the case.  There are four modules to coordinate the process, as follows:

  • Manage Enterprise Information: Enables users to map out organizational information, allowing all parties to understand where potentially relevant ESI is located, policies and practices associated with the ESI, and who is responsible for the ESI.  This module also enables various aspects of the organization to be documented, including backup policies and disaster recovery plans.
  • Matter Scoping: Enables users to track the various matters, and, for each matter, it enables users to track custodians and generate surveys to gather information about the locations of potentially responsive ESI.
  • Meet and Confer: Allows attorneys to define essential ESI needs for both parties while projecting a budget to identify, collect and process the data.  This module also provides a mechanism for computer-aided video conferencing (which can be facilitated by an independent mediator) to actually conduct the conference.
  • System Administration: Supports the creation of clients and users and establish rights for each user group.

Sean’s article mentioned above goes into more detail into each module, reflecting his “hands on” experience in “test driving” the application.  MeetandConfer.com is offering a free one month trial to “qualified” users (i.e., attorneys and judges), with the monthly rate of $149 per user to be billed after the free trial.

So, what do you think? Would an application like this make it easier to fully prepare for “meet and confer” conferences? Would you consider using such an application?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Rules: ESI Topics of the "Meet and Confer"
 

Yesterday, we talked about the basics of the Rule 26(f) “meet and confer” conference, Today, let’s go into more detail about the topics that are typically covered during the “meet and confer”, and why.

The "meet and confer" conference focuses on the exchange of information regarding discovery and the creation of a comprehensive plan that will govern the sharing and privilege of ESI. Accordingly, the requirements of this meeting specify discussion of the following topics:

  • Initial Disclosures: This exchange may be specific and detailed or very basic, depending on the needs of the case and the attorney's agendas. Proposed changes to the requirements, timing, or form of these disclosures may be discussed.
  • Topics on which Discovery may be Needed: It may be easy to agree on subjects for which discovery is necessary, or it may require prolonged discussion to reach an accord. In some instances, time and expense can be saved by beginning with a single area and later expanding discovery to include other topics, if necessary. Known as "phased discovery", this can be a very effective choice, as long as it is conducted in a way that does not require duplication of effort in later phases.
  • Format of Production of ESI: Although the actual discovery process may be conducted over weeks or even months after the conference, it's important to agree now on the format of production to prevent parties from accidentally converting files into a type that will later prove to be inconvenient or result in loss of data. This is especially important if one party has a request for a particular format.
  • Privilege, Inadvertent Disclosure, and Protective Orders: Although we all strive to prevent disclosure of privileged information, it's important to discuss in advance the possible implications and a process for dealing with such an eventuality, if it should occur.
  • Potential Deviations from Discovery Rules Requirements: In some cases, opposing attorneys will agree that they can accomplish discovery in fewer depositions than specified by Federal Rules or local rules. If so, this discussion and any related proposals should be part of the "meet and confer" conference so they can be incorporated into the discovery plan.
  • Any Other Orders or Concerns about Discovery: From discovery agreements to questions or requests, almost any topic related to eDiscovery can be part of the "meet and confer" conference.

To get the most out of the "meet and confer," and to save time and expense, most attorneys will prepare an extensive agenda of the topics for discussion in advance of the meeting itself. Although there are many other topics that may be included in the conference, this list covers key requirements of the Rule 26(f) "meet and confer" conference and the discovery plan to be created there.

So, what do you think? Did you learn something that you didn’t already know about the Rule 26(f) "meet and confer" conference?  If so, then we accomplished our goal! Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Rules: What's Really Required for the "Meet and Confer"?
 

Almost any litigation professional who works with eDiscovery is aware of the Rule 26(f) "meet and confer" conference, but many don't fully understand its parameters and how it affects ESI. What exactly is the "meet and confer" and what are some of its implications in regard to eDiscovery?

What is the "Meet and Confer"?

The "meet and confer" conference is now a requirement in Federal cases as of the rules changes of 2006 to the Federal Rules of Civil Procedure. In addition to Rule 26(f) for Federal cases, an increasing number of states now have (or are contemplating) a similar rule.  It provides an opportunity for the parties in a lawsuit to discuss discovery and create a plan for the sharing of information during and before trial.

The goal of the "meet and confer" rules is to provide a basis for an open exchange of information and a productive dialogue about discovery-related topics. Even in the antagonistic world of litigation, it is possible to reach an accord on the details of discovery by conforming to the requirements of these rules and of the discovery process.

What are the Parameters of the "Meet and Confer"?

Rule 26(f) states that attorneys must meet and discuss "any issues about preserving discoverable information" as well as developing a "discovery plan." It also specifies that:

  • Attorneys must already be aware of the location and nature of their own clients' computer systems and discoverable documents, and must be prepared to ask questions about their opponents' ESI, electronic systems, and data preservation actions.
  • In order to be fully prepared for this conference, an attorney needs to know as much as possible about the location, volume, and logistical challenges that surround the collection of ESI, as well as the client's preferences regarding privilege, protective orders, and document review.
  • The more informed the attorneys are on each of these counts, the more capable they will be to address relevant issues, streamline the discovery process, and minimize eDiscovery costs.
  • Attorneys may exchange either in-depth or limited information about the legal holds process.
  • The result of the "meet and confer" conference is to establish a comprehensive discovery plan and lay the groundwork for the discovery aspects of the rest of the proceeding.

Tomorrow, I’ll go into more details about the specific topics to be covered at the Rule 26(f) conference.  Oh, the anticipation!

So, what do you think? Do you have any experience with Rule 26(f) conferences that went awry or cases where having a Rule 26(f) conference would have helped? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything
 

There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.”  The quote haunted him because, as a young player, he was considered to be more style than substance and unable to “win the big one” – a reputation that he ultimately overcame.

When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI.  This is especially true when one party is suspected of deleting ESI to avoid producing it in Discovery.  For example, a forensic copy of a hard drive will include every byte of data on that drive, including data in unallocated space and file slack – these are locations on the drive that may contain data that was once actively used, but is now available to be overwritten after that data was “deleted”.

However, forensic imaging of media is usually not necessary for Discovery purposes. When it is necessary, the parties (usually in coordination with the court) must establish a protocol for how that inspection will take place. This protocol must be conducted in a manner that is verifiable and is usually conducted by an experienced professional, trained to collect data in a forensically sound manner and qualified to testify in court to that process if required.

For most cases, collection involves straightforward copying of the active targeted ESI as it exists on the producing party’s system.  However, to maintain the integrity of the metadata, not just any means of copying will do.  Copying files with “drag and drop” using Windows Explorer may get the files from one place to another, but key metadata (such as file creation date, which reflects the date of the copy, NOT the original) may be changed.

Fortunately when doing a targeted collection, there are several applications that, if used correctly, will copy files quickly and effectively while preserving the metadata.  Here are a few:

  • SafeCopy 2: Easy to use file copy utility created by Pinpoint Labs specifically for eDiscovery.
  • Robocopy: Microsoft utility for copying files from one location to another.
  • Upcopy: An “intelligent” file copy utility specifically suited for eDiscovery.

Also, FTK® Imager is an imaging and forensic image preview tool that is a free download and part of AccessData’s Forensic Toolkit®.  FTK® Imager also has the option to forensically acquire specific files using the custom content image option.

With any of these utilities, you can support the targeted collection needs for most cases.

So, what do you think? Have you used any of these utilities for eDiscovery collection?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Cloud Covered by Ball
 

What is the cloud, why is it becoming so popular and why is it important to eDiscovery? These are the questions being addressed—and very ably answered—in the recent article Cloud Cover (via Law Technology News) by computer forensics and eDiscovery expert Craig Ball, a previous thought leader interviewee on this blog.

Ball believes that the fears about cloud data security are easily dismissed when considering that “neither local storage nor on-premises data centers have proved immune to failure and breach”. And as far as the cloud's importance to the law and to eDiscovery, he says, "the cloud is re-inventing electronic data discovery in marvelous new ways while most lawyers are still grappling with the old."

What kinds of marvelous new ways, and what do they mean for the future of eDiscovery?

What is the Cloud?

First we have to understand just what the cloud is.  The cloud is more than just the Internet, although it's that, too. In fact, what we call "the cloud" is made up of three on-demand services:

  • Software as a Service (SaaS) covers web-based software that performs tasks you once carried out on your computer's own hard drive, without requiring you to perform your own backups or updates. If you check your email virtually on Hotmail or Gmail or run a Google calendar, you're using SaaS.
  • Platform as a Service (PaaS) happens when companies or individuals rent virtual machines (VMs) to test software applications or to run processes that take up too much hard drive space to run on real machines.
  • Infrastructure as a Service (IaaS) encompasses the use and configuration of virtual machines or hard drive space in whatever manner you need to store, sort, or operate your electronic information.

These three models combine to make up the cloud, a virtual space where electronic storage and processing is faster, easier and more affordable.

How the Cloud Will Change eDiscovery

One reason that processing is faster is through distributed processing, which Ball calls “going wide”.  Here’s his analogy:

“Remember that scene in The Matrix where Neo and Trinity arm themselves from gun racks that appear out of nowhere? That's what it's like to go wide in the cloud. Cloud computing makes it possible to conjure up hundreds of virtual machines and make short work of complex computing tasks. Need a supercomputer-like array of VMs for a day? No problem. When the grunt work's done, those VMs pop like soap bubbles, and usage fees cease. There's no capital expenditure, no amortization, no idle capacity. Want to try the latest concept search tool? There's nothing to buy! Just throw the tool up on a VM and point it at the data.”

Because the cloud is entirely virtual, operating on servers whose locations are unknown and mostly irrelevant, it throws the rules for eDiscovery right out the metaphorical window.

Ball also believes that everything changes once discoverable information goes into the cloud. "Bringing ESI beneath one big tent narrows the gap between retention policy and practice and fosters compatible forms of ESI across web-enabled applications".

"Moving ESI to the cloud," Ball adds, "also spells an end to computer forensics." Where there are no hard drives, there can be no artifacts of deleted information—so, deleted really means deleted.

What's more, “[c]loud computing makes collection unnecessary”. Where discovery requires that information be collected to guarantee its preservation, putting a hold on ESI located in the cloud will safely keep any users from destroying it. And because cloud computing allows for faster processing than can be accomplished on a regular hard drive, the search for discovery documents will move to where they're located, in the cloud. Not only will this approach be easier, it will also save money.

Ball concludes his analysis with the statement, "That e-discovery will live primarily in the cloud isn't a question of whether but when."

So, what do you think? Is cloud computing the future of eDiscovery? Is that future already here? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery

A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures “wholly devoid of competence, yet only once motivated by guile”. Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff’s attorney fees and costs.

The defendant’s discovery efforts in PIC Group, Inc. v. LandCoast Insulation, Inc., No. 1:09-CV-662-KS-MTP, 2011 WL 2669144 (S.D. Miss. July 7, 2011) resulted in several discovery failures, including spoliation of data, mostly through carelessness and incompetence:

  • After consideration of the computer forensics experts recommended by the parties in this case, the court rejected all seven recommendations and appointed its own Special Master (Craig Ball, a previous thought leader interviewee on eDiscovery Daily) to conduct an investigation into the indemnity case, which would revolve around the collapse of scaffolding erected by the defendant.
  • The defendant’s efforts resulted in multiple discovery failures, including: 1) failure to impose “any corporate policy, procedure, or concerted effort [to] preserve electronic data”; 2) no effort to preserve or collect ESI until it was too late to protect the relevant data; 3) the theft of an employee’s laptop and subsequent loss of the backup of that hard drive; and 4) the erasure of another computer containing relevant ESI sometime two or three months after the collapse of the scaffolding at issue in this lawsuit.
  • As a result, the Special Master recommended sanctions against the defendant for its “callous and careless attitude” and sloppy measures taken in the course of discovery.
  • In response to these proposed sanctions, the defendant argued that none of its failures in the course of discovery were due to bad faith, and demonstrated that the plaintiff suffered only minimal prejudice.
  • Although the Special Master determined that the discovery failures were caused by a lack of caution while collecting and preserving evidence, rather than willful intent to alter discovery, he still recommended, and the court ordered, sanctions against the defendant.
  • Accordingly, the defendant was ordered to pay the plaintiff’s attorney fees and expenses accrued as a result of the defendant’s discovery failures, as well as pay the Special Master’s fees and expenses.  The defendant was also compelled to produce an image of the laptop that had been erased (from imaging conducted after the erasure) and the court reopened discovery in this case.  The court declined the Special Master’s recommendation for additional monetary sanctions ($50,000), though it did adopt his recommendation that the defendant “shall not seek indemnification or reimbursement from their insurance company” to pay the assessed fees.

So, what do you think? Were these sanctions merited, or should there be clear intent to deceive for such sanctions to be awarded? Please share any comments you might have or if you’d like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preparing a Collection & Forensics RFP, Part 2
 

Yesterday, we talked about the information you should include in a request for proposal for eDiscovery Collection and Forensics services.  Of course, that’s only half the picture.  To determine if a vendor is a good choice, you’ll also need to ask questions about the vendor’s offerings and experience and ask them for information about their operations. 

Of course, you’ll ask for pricing information and if the vendor can meet your schedule requirements.  In addition, here are questions to ask and information to request:

  1. Describe the qualifications, certifications, licensing, training and experience of your eDiscovery professionals.
  2. What collection tools do you use?  Describe the circumstances under which you use each tool.
  3. Describe the information that is tracked on chain of custody records.  Please provide a sample chain of custody form.
  4. Describe your approach to preparing a data collection plan.  What types of people in our organization will you require information/participation from?  What type of information will you need?
  5. Describe the searching/filtering audit history logs you maintain.
  6. Please provide at least three references.  We’re interested in speaking with clients who had requirements similar to ours.
  7. We may need you to provide testimony.  How often have you provided testimony?  Please describe the testimony you’ve provided.  Can we meet and interview the professional who will be doing our work and who may need to provide testimony?

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project.

What questions to you ask and what information do you request in an RFP for collection and forensics?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Case Law: Discovery Violations Result in Sanctions Against Plaintiff and Counsel

Yesterday, we reported on a case with no sanctions; today, we report on a case with a different outcome.

Both the plaintiff and plaintiff’s counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

In Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011), the plaintiff moved to voluntarily dismiss its case with prejudice. The defendants did not argue against dismissal but did seek sanctions from the plaintiff based on what they considered to be “a pattern of sanctionable discovery misconduct.” The court ruled that discovery abuses had occurred, and fined the plaintiff and plaintiff’s counsel $137,168.41 “jointly and severally”. The misconduct of the plaintiff, Play Visions, Inc., included:

  • Misrepresentation of Available Documents: Play Visions claimed that all relevant documents were kept in hard copy only; however, deposition of Play Visions’ CFO revealed that electronic records existed that should have been presented months earlier under discovery.
  • Falsified Expert’s Report: The plaintiff’s expert report was prepared by plaintiff’s counsel Mark Lorbiecki and only signed and “approved” by the expert. In addition, the court discovered that the plaintiff had violated the court’s protective order by revealing confidential information to the same expert witness.

As a result of these misrepresentations and discovery abuses and others, the court ruled for the defendant’s motion and demanded the plaintiff and its counsel pay sanctions:

  • The court found that Play Visions, Inc. had falsely certified that all relevant records had been saved in paper format and delayed the search and production of documents. Play Visions’ counsel was found to have been negligent in familiarizing himself with Play Visions’ document practices and to have failed in assisting his client in mandatory discovery.
  • Accordingly, the court considered every case where the defendant was forced to do extra work as a result of the plaintiff’s delays and inaccuracies, and fined Play Visions, Inc. and its counsel $137,168.41 jointly and severally, due within 15 days of the order.
  • Not finding “that the discovery violations in this case merit finding the entire case exceptional under 35 U.S.C. § 285”, the court ruled against shifting any attorney’s fees in this case.  Otherwise, the sanctions award could have been even higher!

So, what do you think? Do the discovery violations committed by Play Visions and by its attorney demand monetary sanctions on this scale? Did Play Visions actually believe that they had no relevant electronic files?  Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Case Law: No Sanctions Ordered for Failure to Preserve Backups

A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

The plaintiffs in Ajay Gaalla, et al v. Citizens Medical Center, et al, No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011) had made a motion for sanctions against the defendant for alleged damage to backup tapes, including emails and other electronic documentation. On May 27, the court denied the motion for sanctions against the defendant, although new instructions on maintaining copies of disaster recovery files have been imposed in this case.

  • Plaintiffs presented the argument that the “recycling” or overwriting of disaster recovery backup tapes by the defendant, performed on a 7- or 14-day cycle after the lawsuit was filed, represented spoliation. Accordingly, the plaintiffs requested the maximum sanctions against the defendant for “failure to preserve the backup tapes.”
  • Preservation of backup tapes was not previously been discussed in this case until this motion for sanctions on grounds of data spoliation, but plaintiffs alleged that the failure to preserve backups, coupled with the failure to take snapshots of particular email accounts and “evidence that certain CMC employees had deleted emails from their account at some point in the past”, warranted harsh sanctions.
  • The defendants argued that they had no duty to preserve backups of records, since disaster recovery systems are “rarely” backed up after litigation has begun. They also presented “snapshots” taken of email accounts to demonstrate that there was no intent to destroy information and that attempts had been made to record all relevant evidence.
  • The court referred to the ruling in Zubulake v. UBS Warburg LLC, 220 F.R.D. (S.D.N.Y. 2003), which states: “[A] litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy.” Under this standard, the court found that the defendant was within its rights to overwrite the existing backups as often as such maintenance was normally scheduled.
  • The court also ruled that, with no prior discussion of the backup tapes and “in the context of this case,” there was no cause for sanctions against the defendant, lacking evidence that the defendant acted in bad faith in recycling the tapes used to make the recovery backups.
  • However, the court did order additional discovery efforts to be undertaken in the form of “disaster recovery first of the month” email files to be preserved in their current state and that plaintiffs’ expert be allowed to search them (at defendant’s expense) as well as a “journaling” process to retain email accounts of key parties in the case.

So, what do you think? Do parties have an obligation to maintain copies of all backup tapes for litigation? Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.