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Electronic Discovery

EDRM Updates Statistical Sampling Applied to Electronic Discovery Guide – eDiscovery Trends

Over two years ago, we covered EDRM’s initial announcement of a new guide called Statistical Sampling Applied to Electronic Discovery.  Now, they have announced an updated version of the guide.

The release of EDRM’s Statistical Sampling Applied to Electronic Discovery, Release 2, announced last week and published on the EDRM website, is open for public comment until January 9, 2015, after which any input received will be reviewed and considered for incorporation before the updated materials are finalized.

As EDRM notes in their announcement, “The updated materials provide guidance regarding the use of statistical sampling in e-discovery. Much of the information is definitional and conceptual and intended for a broad audience. Other materials (including an accompanying spreadsheet) provide additional information, particularly technical information, for e-discovery practitioners who are responsible for developing further expertise in this area.”

The expanded Guide is comprised of ten sections (most of which have several sub-sections), as follows:

  1. Introduction
  2. Estimating Proportions within a Binary Population
  3. Acceptance Sampling
  4. Sampling in the Context of the Information Retrieval Grid – Recall, Precision and Elusion
  5. Seed Set Selection in Machine Learning
  6. Guidelines and Considerations
  7. Additional Guidance on Statistical Theory
  8. Calculating Confidence Levels, Confidence Intervals and Sample Sizes
  9. Acceptance Sampling
  10. Examples in the Accompanying Excel Spreadsheet

The guide ranges from the introductory and explanation of basic statistical terms (such as sample size, margin of error and confidence level) to more advanced concepts such as binomial distribution and hypergeometric distribution.  Bring your brain.

As section 10 indicates, there is also an accompanying Excel spreadsheet which can be downloaded from the page, EDRM Statistics Examples 20141023.xlsm, which implements relevant calculations supporting Sections 7, 8 and 9. The spreadsheet was developed using Microsoft Excel 2013 and is an .xlsm file, meaning that it contains VBA code (macros), so you may have to adjust your security settings in order to view and use them.  You’ll also want to read the guide first (especially sections 7 thru 10) as the Excel workbook is a bit cryptic.

Comments can be posted at the bottom of the EDRM Statistical Sampling page, or emailed to the group at mail@edrm.net or you can fill out their comment form here.

One thing that I noticed is that the old guide, from April of 2012, is still on the EDRM site.  It might be a good idea to archive that page to avoid confusion with the new guide.

So, what do you think?  Do you perform statistical sampling to verify results within your eDiscovery process?  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.

Court Agrees with Defendants that Producing Medical Records in Native Form is an “Undue Burden” – eDiscovery Case Law
 

In Peterson v. Matlock, 11-2594 (FLW)(DEA). (D.N.J.Oct. 29, 2014), New Jersey Magistrate Judge Douglas E. Arpert denied the plaintiffs motion to compel defendants to produce the plaintiff's electronically stored medical records in “native readable format” after the defendants produced the records in PDF format, agreeing that the defendants had demonstrated that they would suffer an undue burden in complying with the plaintiff's request.

The plaintiff sought a native file production from a computer system that maintained medical files of prison inmates in a database application called “Centricity” from the New Jersey Department of Corrections (DOC) related to his claim that he was beaten by several correctional officers while restrained with handcuffs.  The plaintiff's medical records were previously provided in a PDF file organized in reverse chronological order, which the plaintiff claimed renders the records difficult to navigate and interpret.  According to the plaintiff, when provided in PDF format, the record is missing “the functionality, searchable data points, and metadata which are part of the electronic medical record and are available to a provider…using Centricity.”  Additionally, the plaintiff claimed that the PDF record is missing metadata stored in Centricity in the form of an "audit trail" which records changes or additions to the record.

The defendants argued that the form in which the plaintiff's records were provided is the standard output and method of production and that to produce the records in the form requested by the plaintiff “would be an inordinate drain of time and manpower” because staff from the DOC would be required to “sort through each page of the medical record and make the determination as to which category it fits into.”

Judge Arpert stated that “While Plaintiff claims the record as provided in PDF format is difficult to interpret and navigate, Defendants have demonstrated that they would suffer an undue burden in complying with Plaintiff's request to provide the records in their native format. Although the PDF record provided may be less convenient for Plaintiff, requiring staff from the DOC to sort and identify each page of every inmate medical record would create a substantial hardship and/or expense, which outweighs Plaintiff's interests in receiving the records in their native format.”  As a result, the judge found “that Defendants have fulfilled their obligation with respect to the production of Plaintiff's medical records” and denied the plaintiff’s motion to compel.

So, what do you think?  Should the defendants have been compelled to produce the data natively?  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.

New Study Sheds Light on Law Department Buying Habits – eDiscovery Trends
 

Want to know about law department habits regarding legal spend?  Then, Huron Legal has a report for you.

The 2014 IMPACT® Benchmarking Report summarizes the results of Huron Legal’s fifth annual survey of law departments, conducted in alliance with The General Counsel Forum.  The Report includes key benchmarks regarding legal spend, as well as law department organization and workload, outside counsel and vendor engagement, spend management, leadership priorities, client service delivery, and technology.  The survey included 75 total participants, with an individual company revenue range from $9 million all the way up to $79 billion – the total legal spend of all participants was $2.1 billion.

The survey found that law department cost management programs are becoming more sophisticated in light of ongoing financial pressures, with 57% of the law departments surveyed reporting using data analytics to drive decision-making.  Some additional key findings in the 60 page report included:

  • Legal Spend Look Ahead: In the upcoming year, 43% of respondents indicated that legal spend is expected to be the same as last year, and of entities with over $10 billion in revenue, 40% indicated that they expect their legal spend to decrease in 2015.
  • Widespread Use of Alternative Fee Arrangements: The use of alternative fee arrangements (AFAs) has continued to increase with 83% of law departments reporting using AFAs in 2014. 48% of respondents said that AFA spend accounted for at least 10% of their total outside counsel expenditures. On average, AFA spend accounted for 20% of total outside counsel spend.
  • Increased Emphasis on Budgeting: Consistent with last year’s findings, matter level budget usage remains high across all revenue segments with 75% of departments reporting the usage of these budgets. Also, the percentage of departments reporting the establishment of budgets at the phase/task level has increased from 37% to 57% since the 2013 survey.
  • Focus on Law Department Management Technology: A majority (70%) of companies with over $10 billion in revenue reported that their law departments have a long-term strategic technology and process development plan which includes matter management, e-billing, and contract management.
  • Comprehensive Management Programs: Surveyed departments that employ comprehensive management programs related to financial and outside counsel management realized 48% lower external legal spend as a percent of company revenue than those without similar comprehensive programs.

From an eDiscovery standpoint, legal hold systems are used by more than 89% of responding law departments from companies with more than $2 billion in revenue – up from 80% the year before, with the percentage of respondents who reported using a legal hold system having increased in all revenue segments.  More than 50% of companies with more than $2 billion in revenue reported using some form of eDiscovery technology, either for collections, processing, hosting, or review.

This is just a sampling of the report findings.  You can find more information about the 2014 IMPACT Benchmarking Report, including a link to download report highlights, here.  You can also contact Bret Baccus, Senior Director at Huron Legal (and a former colleague of mine!) for more information, including pricing information at bbaccus@huronconsultinggroup.com.

So, what do you think?  Are you interested in how legal departments are spending their money?  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.

Where Some of Your Tax Dollars are Going, if you’re in Tennessee – eDiscovery Trends

One of the topics at the roundtable discussion after the Houston showing of The Decade of Discovery the other night was regarding Rule 37(e), preservation and sanctions.  Apparently, at least in one state, the burden of preservation has become a fairly significant cost to that state.

In a post on the Nashville Public Radio blog site (of all places!) titled Tennessee Agencies Are Spending ‘A Huge Amount Of Money’ To Store Emails For Lawsuits, Bobby Allyn described a recent budget hearing with the Tennessee governor and the Department of Children’s Services (DCS) Commissioner Jim Henry, who said:

“Litigation hold on email storage is $865,000, which, you know, is a huge amount of money for us to pay just to store emails”.

As the author noted, “It’s a figure expected to climb to $1.1 million. Just a few years ago, it was almost nothing.”

Because of court orders aimed at ensuring that potential lawsuit evidence isn’t being hidden or destroyed, Tennessee state agencies are spending millions of dollars on email storage.  In particular, DCS’ sum stems from a 14-year-old federal lawsuit brought by a New York-based child advocacy firm that sued the state over claims of unsafe conditions in Tennessee foster homes and other allegations of systemic issues plaguing the department.  While the $865,000 is a fraction of the $32 million the suit has cost DCS over two fiscal years, moving and preserving email communication is still a significant expense that most people don’t realize.

Overall, the state is expected to spend $1.6 million this fiscal year on paying staff and outside firms to save emails, according to Lola Potter, spokeswoman for Tennessee’s Inspector General.  And, that total apparently doesn’t include litigation-related email storage services in a number of state agencies, such as TennCare which has litigation holds on about 20 lawsuits, and spends more than $1 million a year on transferring and storing employee emails connected to the suits, thanks to court orders that mandate saving of the emails.

So, what do you think?  Are litigation hold costs escalating in your state government or your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to Nashville attorney Thomas B. Norris, Jr. for the tip on this article!

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.

Houston, Hello! The Decade of Discovery Showing for One Night Only! – eDiscovery Trends

A few months ago, we told you about an intriguing documentary about eDiscovery that premiered in the New York area.  Then, in October, we told you that documentary is making the rounds and may be coming to a theatre near you.  Tonight, that documentary is showing in my hometown of Houston, so if you’re in the area, come check it out!  It’s free, if you register!

The Decade of Discovery was written and directed by Joe Looby, who, according to his LinkedIn profile, served in the U.S. Navy’s Judge Advocate General Corps, practiced as an environmental enforcement attorney for New York state and was a founder of the forensic technology practices at Deloitte and FTI.  His film production company is called 10th Mountain Films, named in honor of his father, who served in the 10th Mountain Division, a U.S. Army ski patrol that fought in World War II.

Described as a “documentary about a government attorney on a quest to find a better way to search White House e-mail, and a teacher who takes a stand for civil justice on the electronic frontier”, Looby notes in a radio interview with the Mid Hudson News that the documentary includes comments by “a government attorney, a teacher, seven judges and two professors”, which includes several well-known names in eDiscovery: U.S. District Judge Shira Scheindlin, of the Southern District of New York, Jason R. Baron, former director of litigation for the U.S. National Archives and Records Administration and now Of Counsel at Drinker Biddle & Reath, and the late Richard Braman, founder of The Sedona Conference, among others.  Looby refers to those who have advanced tremendous progress made over the past decade in eDiscovery practice as “true American heroes”.

The movie addresses the considerable advancements to address problems like this in both the government and litigation arenas.

Tonight’s showing will take place at the Majestic Metro Theater at 911 Preston Street in downtown Houston.  It begins at 6:30pm with a networking reception, followed by the film starting about 7:30 and a panel discussion afterward including Jason R. Baron and The Honorable Lee H. Rosenthal, District Judge for the United States District Court for the Southern District of Texas.

As of yesterday, seats were still available.  So, if you’re in the Houston area and interested in attending (and networking with other eDiscovery professionals), you can register at the Bloomberg BNA site here.

I will be there and if you’re reading this and in the Houston area, I hope to see you there!

So, what do you think?  Have you seen The Decade of Discovery yet?  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.

Finding Defendant’s Destruction of Documents to be “Planned, Repeated and Comprehensive”, Court Awards Judgment to Plaintiff – eDiscovery Case Law

In Regulatory Fundamentals Group v. Governance Risk Management Compliance, 13 Civ. 2493 (KBF) (S.D.N.Y. Aug. 5, 2014), New York District Judge Katherine B. Forrest granted the plaintiff’s motion for sanctions and ordered that judgment be entered for the defendant’s “planned, repeated, and comprehensive” destruction of highly-relevant documents.

Case Background

In this copyright infringement action, after the parties engaged in limited discovery, the defendant informed the plaintiff that it “might be missing certain emails.” The defendant later revealed that he had canceled his email account with a third-party vendor, which had hosted his corporate defendants’ websites and email domains.  After the plaintiff noticed the defendant for a deposition to investigate the cancellation and he failed to appear, the plaintiff filed a motion for sanctions alleging that the defendant had engaged in spoliation.

Judge’s Ruling

Judge Forrest began her ruling this way:

“A party to a lawsuit may not destroy relevant evidence without consequence. The nature and magnitude of the consequence follows from the level of culpability. Was, for instance, the destruction of evidence inadvertent and the result of an oversight? Or was it the product of a plan?

The individual defendant in this lawsuit destroyed a large number of highly relevant documents — preventing plaintiff and any finder of fact from ever knowing the full truth of what occurred. Following discovery, lengthy briefing, and an evidentiary hearing, the Court has found that defendant’s destruction was planned, repeated, and comprehensive. It was malicious. This finding is particularly unfortunate in light of the plain fact that the spoliation has turned what was a straightforward commercial dispute into a far more serious issue.

The spoliator here — defendant Gregory V. Wood — is a graduate of Cornell Law School and a member of the bar of the State of New York. His conduct has resulted in entry of judgment against him.”

Judge Forrest noted that “to support the imposition of sanctions, ‘the innocent party must prove the following three elements: that the spoliating party (1) had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and that (3) the missing evidence is relevant to the innocent party’s claim or defense.’”

Finding that all three elements were satisfied in this case caused Judge Forrest to issue the following analysis:

“RFG has clearly been prejudiced by Wood’s intentional spoliation. The Court has considered whether sanctions less severe than termination are warranted. For example, the Court has considered monetary sanctions or the imposition of an adverse inference. Neither would be sufficient under the circumstances. The lack of emails prevents RFG from proving the full extent or scope of Wood’s conduct.

Wood’s deletion of emails and his attempted cover-up put RFG in an untenable litigation position — the evidence of the scope of defendants’ alleged misconduct is gone forever. Any sanction short of a terminating sanction would fail to account for the prejudice or to sufficiently penalize Wood or deter others from engaging in such misconduct. Accordingly, the Court grants RFG’s request for a terminating sanction.”

So, what do you think?  Did the defendant’s actions justify the ultimate sanction?  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.

What I’m Thankful for This Thanksgiving – eDiscovery Thanks

As a devoted blog writer and eDiscovery geek, with Thanksgiving coming this Thursday, I thought it would be a good time to talk about what I’m thankful for this holiday season from an eDiscovery standpoint.  Maybe you’re thankful for some of these same things?

So Many Wonderful eDiscovery Resources: In addition to eDiscovery Daily, there are so many wonderful resources for eDiscovery news and trend information.  I’m thankful for that because (among other reasons) it makes it easier to identify blog topics.  Here are some of the best of the bunch:

  • Ball in Your Court: Craig Ball’s always interesting and insightful blog about eDiscovery trends and best practices – Craig’s analogies and no nonsense ways of communicating are unmatched;
  • e-Discovery Team®: Ralph Losey’s blog probably covers topics in more depth than any other;
  • Ride the Lightning: When you want to know the latest trends on data security and the latest data breaches, Sharon Nelson of Sensei Enterprises covers it here;
  • Litigation Support Guru: Amy Bowser-Rollins covers tips and best practices for litigation support professionals (and those aspiring to be lit support professionals);
  • Bow Tie Law’s Blog: Josh Gilliland provides analysis of case law decisions with a unique perspective that is always educational;
  • Complex Discovery: Rob Robinson is the master at compiling stories and statistics related to eDiscovery topics, ranging from industry acquisitions to case law related to predictive coding.

Industry Thought Leaders Sharing their Time: For the past four years, we have published a thought leader interview series with several eDiscovery industry thought leaders that have always been willing to share their time to discuss their thoughts on emerging trends in the industry.  I want to thank all of them, especially Brad Jenkins, Tom Gelbmann, Laura Zubulake, Alon Israely, Adam Losey, George Socha, Tom O’Connor, Ralph Losey and Craig Ball – each of whom have given their time for interviews more than once (some have done it all four years).  Links are to this year’s interviews – now is a great time to catch up!

eDiscovery Professionals: There are numerous eDiscovery professionals with interesting stories to tell – I’m thankful for those that agreed to tell their stories to our blog, including: Duane Lites, Charlotte Riser Harris, Stuart W. Hubbard, Stacia Sanders, Amy Bowser-Rollins, Caroline Sweeney, Kalani Munden, Paul Savoy, Jennifer Williams, Mark Lieb, Dawn Radcliffe, Julie Brown, Angie Gossen, Gordon Moffat and Cheryl Garner.

The Decade of Discovery: I’m also thankful that Joe Looby’s film The Decade of Discovery is currently on tour and coming to Houston next week.  Check here to see when it may be heading to a screening near you.

I’m also thankful for all of you who continue to read and follow this blog.  We couldn’t have made it for over four years and 1,059 posts (and counting) without you!  Thanks!

And, personally, I’m most thankful for my family, particularly my wife Paige and our kids Kiley and Carter.  I love you!

So, what do you think? What are you thankful for in eDiscovery or in general?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts next Monday.  Happy Thanksgiving!

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.

Court Opts for Defendant’s Plan of Review including TAR and Manual Review over Plaintiff’s TAR Only Approach – eDiscovery Case Law
 

In Good v. American Water Works, 2:14-01374 (S.D. W. Vir. Oct. 29, 2014), West Virginia District Judge John T. Copenhaver, Jr. granted the defendants' motion for a Rule 502(d) order that merely encouraged the incorporation and employment of time-saving computer-assisted privilege review over the plaintiffs’ proposal disallowing linear privilege review altogether.

Case Background

In this class action litigation involving the Freedom Industries chemical spill, the parties met and conferred, agreeing on all but one discovery issue: privilege review and 502(d) clawbacks.  The defendants proposed that the Rule 502(d) order merely encourage the incorporation and employment of computer-assisted privilege review, while the plaintiffs proposed that the order “limit privilege review to what a computer can accomplish, disallowing linear (aka ‘eyes on’) privilege review altogether”.

The plaintiffs would agree only to a pure quick peek/claw-back arrangement, which would place never-reviewed, never privilege-logged documents in their hands as quickly as physically possible at the expense of any opportunity for care on the part of a producing party to protect a client's privileged and work product protected information.  On the other hand, the defendants did not wish to forego completely the option to manually review documents for privilege and work product protection. 

The plaintiffs argued that if they were to proceed with a manual privilege review, then only 502(b) protection – the inadvertent waiver rule – should apply, and not 502(d) protection, which offers more expansive protection against privilege waivers.

Judge’s Ruling

Judge Copenhaver noted that “[t]he defendants have chosen a course that would allow them the opportunity to conduct some level of human due diligence prior to disclosing vast amounts of information, some portion of which might be privileged. They also appear to desire a more predictable clawback approach without facing the uncertainty inherent in the Rule 502(b) factoring analysis. Nothing in Rule 502 prohibits that course. And the parties need not agree in order for that approach to be adopted”.

Therefore, despite the fact that the plaintiffs were “willing to agree to an order that provides that the privilege or protection will not be waived and that no other harm will come to the Defendants if Plaintiffs are permitted to see privileged or work product protected documents”, Judge Copenhaver ruled that “[i]nasmuch as defendants' cautious approach is not prohibited by the text of Rule 502, and they appear ready to move expeditiously in producing documents in the case, their desired approach is a reasonable one.”  As a result, he entered their proposed Rule 502(d) order, “with the expectation that the defendants will marshal the resources necessary to assure that the delay occasioned by manual review of portions of designated categories will uniformly be minimized so that disclosure of the entirety of even the most sensitive categories is accomplished quickly.”

So, what do you think?  Should the defendants have retained the right to manual review or should the plaintiffs’ proposed approach have been adopted?  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.

Court Allows Costs for TIFF Conversion and OCR, Likens it to “Making Copies” – eDiscovery Case Law

In Kuznyetsov v. West Penn Allegheny Health Sys., No. 10-948 (W.D. Pa.Oct. 23, 2014), Pennsylvania Senior District Judge Donetta W. Ambrose upheld the Clerk of Courts issuance of Taxation of Costs for $60,890.97 in favor of the defendants and against the named the plaintiffs, including costs for “scanning and conversion of native files to the agreed-upon format for production of ESI”.

Case Background

The plaintiffs filed a collective action pursuant to §216(b) of the Fair Labor Standards Act (“FLSA”) against the defendants, which was ultimately decertified as Judge Ambrose ruled that the 824 opt-in plaintiffs were not similarly situated.  After that, the plaintiffs filed a Motion for Voluntary Dismissal, which Judge Ambrose granted, dismissing the claims of the opt-in Plaintiffs without prejudice and dismissing the claims of the named Plaintiffs with prejudice (the plaintiffs appealed and the Third Circuit dismissed the appeal for lack of jurisdiction).

On October 15, 2013, the defendants filed a Bill of Costs seeking a total of $78,561.77. On October 31, 2013, the Clerk of Courts filed a Letter calling for objections to the Bill of Costs, which was followed in January of this year by objections from the named plaintiffs (to which the Defendants filed a response). On August 1, the Clerk of Courts issued his Taxation of Costs in the amount of $60,890.97 in favor of Defendants and against the named Plaintiffs.

Judge’s Ruling

Stating that “Rule 54(d)(1) creates a strong presumption that costs are to be awarded to the prevailing party”, Judge Ambrose analyzed the costs as defined in 28 U.S.C. § 1920, including §1920(4), which covers “Fees for exemplification and the costs of making copies of any material where the copies are necessarily obtained for use in the case”.

Addressing the plaintiff’s contention that the costs awarded were for eDiscovery costs were not necessary and were awarded at unreasonably high rates and referencing the Race Tires case in her ruling, Judge Ambrose stated:

“With regard to unnecessary e-discovery costs and unreasonably high rates, Plaintiffs first argue that the costs associated with Optical Character Recognition (‘OCR’) were unnecessary…As Defendants point out, however, Plaintiffs requested the information be produced in, inter alia, OCR format…The ‘scanning and conversion of native files to the agreed-upon format for production of ESI constitutes `making copies of materials’ as pursuant to §1920(4)…Accordingly, I find the costs associated with OCR conversion are taxable.

Furthermore, I do not find the cost of 5 cents per page for TIFF services to be unreasonably high, nor do I find 24 cents per page for scanning paper documents to be unreasonably high…Consequently, I find not merit to this argument either.”

Rejecting the plaintiff’s arguments that “1) Defendants have unclean hands; 2) Plaintiffs are unable to pay the costs; and 3) it would be inequitable to force the three named Plaintiffs to pay the entire costs of defending against the claims of the opt-in Plaintiffs”, Judge Ambrose affirmed the amount of $60,890.97 in favor of Defendants.

So, what do you think?  Should the costs have been allowed for conversion of native files when they may have already been usable as is?  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.

Twitter Might “Bug” You if You Want to Retrieve Archive Data – eDiscovery Best Practices
 

Thanks to the Google Alerts that I set up to send me new stories related to eDiscovery, I found an interesting blog post from an attorney that appears to shed light on an archival bug within Twitter that could affect people who may want to retrieve Twitter archival data for eDiscovery purposes.

In Erik J. Heels’ blog, his latest post (Twitter Bug Makes Tweet Archives Unreliable For eDiscovery), he starts by noting that his very first tweet of October 30, 2008 is no longer active on his site – his earliest tweet was dated September 5, 2010.  All attempts to try to locate the tweets were unsuccessful and customer service was no help.

After some digging, Erik found out that, on October 13, 2010, Twitter announced the “new Twitter” which included a new user interface.  As part of that revamping, Twitter changed the format for its status URLs (Tweets) so that the sequential number at the end of each Tweet (the Tweet ID) changed length, eventually doubling from nine digits in 2008 to 18 digits today (which supports up to one quintillion tweets).

Then, on December 12, 2012, Twitter announced that users could export archives of their Tweets (via your account’s Settings page).  The result is a nine field comma-separated values (CSV) file with information, including the tweet ID.  So, now you could retrieve your old tweets that were no longer actively stored, right?  Not necessarily.

As Erik found out, when he exported the file and went to retrieve old tweets, some of his tweet IDs actually pointed to other people’s tweets!  You can see the details of his tests in his blog post or via his 60 second YouTube video here.

Obviously, if you need to retrieve archived tweets for eDiscovery purposes, that’s not a good thing.

As it happens, CloudNine Discovery has our own Twitter account (@Cloud9Discovery) and has since August of 2009 (we were known as Trial Solutions back then), so I decided to run my own test and exported our archive.  Here’s what I found:

  • Our very first tweet was August 17, 2009 (Trial Solutions Ranks 2,830 on the Exclusive 2009 Inc. 5000).  It retrieved correctly.  The bit.ly link within the tweet isn’t hyperlinked, but if you copy and paste it into the browser address, it correctly retrieves (obviously, this will only be the case if the referenced web page still exists).
  • In fact, all of the early tweets that I tested retrieved with no problem.
  • Then, on December 1, 2010, I encountered the first tweet that didn’t retrieve correctly (one of our blog posts titled eDiscovery Project Management:  Effectively Manage Your Staff) with a tweet ID of 9924696560635900 (Full URL: https://twitter.com/Cloud9Discovery/status/9924696560635900).  It didn’t point to a different person’s tweet, it simply said “Sorry, that page doesn’t exist!”
  • From that point on, none of the tweets that I tried to retrieve would retrieve – all gave me the “page doesn’t exist” message.
  • I even tried to retrieve our tweet of yesterday’s blog post (Defendant Ordered to Produce Archived Emails Even Though Plaintiff Failed to Produce Theirs – eDiscovery Case Law) via the tweet ID provided in the archive file (535098008715538000).  Even it wouldn’t retrieve.  Wait a minute, what’s going on here!

I then retrieved our tweet of yesterday’s blog post by clicking on it directly within Twitter.  Here is the URL to the tweet with the ID at the end: https://twitter.com/Cloud9Discovery/status/535098008715538434.

See the problem?  The tweet IDs don’t match.

I ultimately determined that all of the tweet IDs provided in the archive file starting on December 1, 2010 end with two or more zeroes.  Starting on November 5, 2010, they all end with at least one zero.  When I started testing those, I re-created Erik’s problem:

Our tweet on November 29, 2010 titled eDiscovery Trends: Sanctions at an All-Time High, (tweet ID: 9199940811100160) actually retrieves a tweet by @aalyce titled @StylesFever snog liam marry louis and niall can take me out 😉 hehe.  Whoops!

It appears as though the archive file provided by Twitter is dropping all digits of the tweet ID after the fifteenth digit and replacing them with zeroes, effectively pointing to either an invalid or incorrect page and rendering the export effectively useless.  Hopefully, Twitter can fix it – we’ll see.  In the meantime, don’t rely on it and be prepared to address the issue if your case needs to retrieve archived data from Twitter.  Thanks, Erik, for the heads up!

So, what do you think?  Have you ever had to preserve or produce data from Twitter in litigation?  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.