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Electronic Discovery

Adam Losey of IT-Lex.org – eDiscovery Trends, Part 1

During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.  Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics.  Enjoy!  🙂

Like his dad, Ralph Losey, Adam has a lot to say.  So, today is part 1 of the interview.  Part 2 will appear tomorrow.

What were your general observations about LTNY this year and how it fits into emerging trends?

Well, I’d never been to a LegalTech before, so I saw it with “virgin eyes”, I guess you could say.  It was very busy and a bit overwhelming, because there is almost no way you can do everything you want to do there.  My overall impression is that it was very well done.  Everybody at ALM in setting it up, all of the booths set up by the vendors – it was just very, very well done and, frankly, reinforces the idea of how much money is in this industry.  That there would be an event of that size and so much of the effort and money put into it was a very palpable representation of the prevalence of the eDiscovery and legal technology industry that I hadn’t seen before.  That’s my general overview.

Specifically, I was a little surprised that a lot more of the vendors don’t turn over the controls to attendees more.  I wrote an article in Law Technology News (10 Tips for LegalTech Vendors, which was discussed in this blog here) and, in it, I discuss how I think that most vendors could use the time more productively by getting you to use the tool that they have instead of talking about it generally.  My real goal for the show was to play with a lot of these tools and my expectation was that everyone would have tools available to “click around” in.  But, I was wrong.  While some vendors did, most did not.  I would like to see more vendors in the future with terminals with something like the Enron data set that is widely used and have the tool set up where you can just “have at it” and play with it.

Of course, I’m a computer dude, I’ve built computers for fun and I did some basic programming, so you can put me in front of something and I can figure it out fairly quickly.  I can understand that it can be dangerous with a lot of folks to “plop” them in front of an interface and expect them to figure it out with no training.  Then again, that should be the goal of anybody’s product, to be so intuitive that even somebody that’s not familiar with it can “plop” in front of it and get going with minimal guidance.  Honestly, I don’t understand how you can make a good decision without test driving; otherwise, if you just listen to a general spiel, everyone will give you the same spiel.  No one is going to sit you down and say “my product is terrible, don’t buy my product”.  You can hear about a great software solution or technology, the PowerPoint looks great, the sales people are wonderful and the price is right, but nobody really vets it thoroughly and you wind up being very disappointed.  The day-to-day end users need to be part of the process in figuring out what they are going to use.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

From reading the news and talking with colleagues, I have a “macro” thought and some “micro” thoughts, which are mostly anecdotal from my personal experience.  My “macro” thought is a continuation of the same, more acceptance rather than introduction of the use of predictive coding (or technology assisted review, computer assisted review, whatever you want to call it).

In addition, I think that there is going to be a lot more emphasis on information security.  Anecdotally, you see a lot of data breaches and people are starting to take it pretty seriously.  I would include information security and privacy in the realm of eDiscovery even though many wouldn’t.  But, you run the risk of stepping on a really big landmine if you don’t have somebody looking out for you on that end, doing everything from making sure you comply with the CAN-SPAM act to making sure you’re meeting the data security requirements in the Gramm-Leach-Bliley Act.  Folks are starting to realize that there are significant financial consequences for not doing it right, such as getting sued.  Here’s a good example.  You’re recording this interview and I gave you consent to do so, but if you were recording it without consent in California, I would have a cause of action against you (according to the California Invasion of Privacy Act) where I could recover a significant amount of money without showing any damages, just because they have a specific statute that allows you to do that.  This is significant, in that if you recorded my call, even if it was illegal, it wouldn’t necessarily make sense for me to sue you over that, if you didn’t do something harmful, like put it on the Internet. Privacy legislation is out there where you don’t need to show any damages to receive compensation.  That makes people pay more attention to it, and motivates the Plaintiffs’ bar to sue.

Anecdotally, I’m seeing the members of the judiciary that aren’t the “eDiscovery rock stars” that we all know becoming a lot more eDiscovery savvy through education and dealing with the issues regularly.  Before, judges weren’t necessarily familiar with eDiscovery issues because those issues hadn’t been argued before them.  Now, I’m seeing more familiarity with it.  I’m also seeing more clients drawing a line on undue burdensomeness, and I am very willing to say to a Judge on behalf of a client  “no, we’re not going to spend $1 million on discovery just because opposing counsel asked for everything under the moon, it’s too burdensome and we’re going to quantify why it is overly burdensome, and ask that if they want the moon they have to pay for it”.  And, the judiciary has, in accordance with the rules, been receptive to those kinds of undue burden arguments.  And, I expect to see more litigation on that, with people “drawing lines in the sand” as to how much they will spend on discovery.

I’m also seeing more state rules changed to accommodate eDiscovery, especially rules that allow “clawback” orders.  Illinois just passed a rule allowing “clawback” orders, similar to the Federal “clawback” provision.  That’s kind of odd, because there is a conflict of law issue there, where the Federal “clawback” rule allows the Federal court to make an order effective against other Federal courts and state courts (the clawback rule in the Federal Rules of evidence was actually implemented by Congress).  The state court equivalent in Illinois allows the state court to make a “clawback” order effective against other courts.  But, a state court can’t do that against a Federal court, but the rule “allows” them to do so.  As a matter of law, I don’t think a state court can place a protective order that would be binding against a Federal court, it runs afoul of a couple hundred years of case law.

Also, Florida adopted new rules, effective last September.  I think it should be a big goal for those drafting state rules to provide clear guidance to trial courts to help them in addressing these issues, because they’re tough issues.  Trial courts deal with a high volume of cases with very limited resources and they can’t take a couple of days to “chew on” eDiscovery textbooks, so I think state courts appreciate clear guidance in state rules and I think you’re going to see a lot more states go the way of Florida and pass eDiscovery rules.  I just had a hearing in Florida that was governed by the new rules – it would have been a lot more problematic without those rules.

More from Adam tomorrow!

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.

Fulbright’s Litigation Trends Survey Shows Increased Litigation, Mobile Device Collection – eDiscovery Trends

According to Fulbright’s 9th Annual Litigation Trends Survey released last month, companies in the United States and United Kingdom continue to deal with, and spend more on litigation.  From an eDiscovery standpoint, the survey showed an increase in requirements to preserve and collect data from employee mobile devices, a high reliance on self-preservation to fulfill preservation obligations and a decent percentage of organizations using technology assisted review.

Here are some interesting statistics from the report:

PARTICIPANTS

Here is a breakdown of the participants in the survey.

  • There were 392 total participants from the US and UK, 96% of which were either General Counsel (82%) or Head of Litigation (14%).
  • About half (49%) of the companies surveyed, were billion dollar companies with $1 billion or more in gross revenue.  36% of the total companies have revenues of $10 billion or more.

LITIGATION TRENDS

The report showed increases in both the number of cases being encountered by organizations, as well as the total expenditures for litigation.

Increasing Litigation Cases

  • This year, 92% of respondents anticipate either the same amount or more litigation, up from 89% last year.  26% of respondents expect litigation to increase, while 66% expect litigation to stay the same.  Among the larger companies, 33% of respondents expect more disputes, and 94% expect either the same number or an increase.
  • The number of respondents reporting that they had received a lawsuit rose this year to 86% estimating at least one matter, compared with 73% last year. Those estimating at least 21 lawsuits or more rose to 33% from 22% last year.
  • Companies facing at least one $20 million lawsuit rose to 31% this year, from 23% the previous year.

Increasing Litigation Costs

  • The percentage of companies spending $1 million or more on litigation has increased for the third year in a row to 54%, up from 51% in 2011 and 46% in 2010, primarily due to a sharp rise in $1 million+ cases in the UK (rising from 38% in 2010 up to 53% in 2012).
  • In the US, 53% of organizations spend $1 million or more on litigation and 17% spend $10 million or more.
  • 33% of larger companies spent $10 million on litigation, way up from 19% the year before (and 22% in 2010).

EDISCOVERY TRENDS

The report showed an increase in requirements to preserve and collect data from employee mobile devices, a high reliance on self-preservation to fulfill preservation obligations and a decent percentage of organizations using technology assisted review.

Mobile Device Preservation and Collection

  • 41% of companies had to preserve and/or collect data from an employee mobile device because of litigation or an investigation in 2012, up from 32% in 2011.
  • Similar increases were reported by respondents from larger companies (38% in 2011, up to 54% in 2012) and midsized companies (26% in 2011, up to 40% in 2012).  Only respondents from smaller companies reported a drop (from 26% to 14%).

Self-Preservation

  • 69% of companies rely on individuals preserving their own data (i.e., self-preservation) in any of their disputes or investigations.  Larger and mid-sized companies are more likely to utilize self-preservation (73% and 72% respectively) than smaller companies (52%).
  • 41% of companies use self-preservation in all of their matters, and 73% use it for half or more of all matters.
  • When not relying on self-preservation, 72% of respondents say they depend on the IT function to collect all data sources of pertinent custodians.
  • Reasons that respondents gave for not relying on self-preservation included: More cost effective and efficient not to rely on custodian 29%; Lack of compliance by custodians 24%; High profile matter 23%; High monetary or other exposure 22%; Need to conduct forensics 20%; Some or all custodians may have an incentive to improperly delete potentially relevant information; 18%; Case law does not support self-preservation 14% and High profile custodian 11%.

Technology Assisted Review

  • 35% of all respondents are using technology assisted review for at least some of their matters.  U.S. companies are more likely to employ technology-assisted review than their U.K. counterparts (40% versus 23%).
  • 43% of larger companies surveyed use technology assisted review, compared with 32% of mid-sized companies and 23% of the smaller companies.
  • Of those companies utilizing technology assisted review, 21% use it in all of their matters and 51% use it for half or more of their matters.

There are plenty more interesting stats and trends in the report, which is free(!).  To download your own copy of the report, click here.

So, what do you think?  Do any of those trends surprise you?  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 Daily Is Thirty! (Months Old, That Is)

Thirty months ago yesterday, eDiscovery Daily was launched.  It’s hard to believe that it has been 2 1/2 years since our first three posts that debuted on our first day.  635 posts later, a lot has happened in the industry that we’ve covered.  And, yes we’re still crazy after all these years for committing to a daily post each business day, but we still haven’t missed a business day yet.  Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

In addition, Jane Gennarelli has been publishing an excellent series to introduce new eDiscovery professionals to the litigation process and litigation terminology.  Here is the latest post, which includes links to the previous twenty one posts.

Thanks for noticing us!  We’ve nearly quadrupled our readership since the first six month period and almost septupled (that’s grown 7 times in size!) our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, 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.

Outlook Emails Can Take Many Forms – eDiscovery Best Practices

Most discovery requests include a request for emails of parties involved in the case.  Email data is often the best resource for establishing a timeline of communications in the case and Microsoft® Outlook is the most common email program used in business today.  Outlook emails can be stored in several different forms, so it’s important to be able to account for each file format when collecting emails that may be responsive to the discovery request.

There are several different file types that contain Outlook emails, including:

EDB (Exchange Database): The server files for Microsoft Exchange, which is the server environment which manages Outlook emails in an organization.  In the EDB file, a user account is created for each person authorized at the company to use email (usually, but not always, employees). The EDB file stores all of the information related to email messages, calendar appointments, tasks, and contacts for all authorized email users at the company.  EDB files are the server-side collection of Outlook emails for an organization that uses Exchange, so they are a primary source of responsive emails for those organizations.  Not all organizations that use Outlook use Exchange, but larger organizations almost always do.

OST (Outlook Offline Storage Table): Outlook can be configured to keep a local copy of a user’s items on their computer in an Outlook data file that is named an offline Outlook Data File (OST). This allows the user to work offline when a connection to the Exchange computer may not be possible or wanted. The OST file is synchronized with the Exchange computer when a connection is available.  If the synchronization is not current for a particular user, their OST file could contain emails that are not on the EDB server file, so OST files may also need to be searched for responsive emails.

PST (Outlook Personal Storage Table): A PST file is another Outlook data file that stores a user’s messages and other items on their computer. It’s the most common file format for home users or small organizations that don’t use Exchange, but instead use an ISP to connect to the Internet (typically through POP3 and IMAP).  In addition, Exchange users may move or archive messages to a PST file (either manually or via auto-archiving) to move them out of the primary mailbox, typically to keep their mailbox size manageable.  PST files often contain emails not found in either the EDB or OST files (especially when Exchange is not used), so it’s important to search them for responsive emails as well.

MSG (Outlook MSG File): MSG is a file extension for a mail message file format used by Microsoft Outlook and Exchange.  Each MSG file is a self-contained unit for the message “family” (email and its attachments) and individual MSG files can be saved simply by dragging messages out of Outlook to a folder on the computer (which could then be stored on portable media, such as CDs or flash drives).  As these individual emails may no longer be contained in the other Outlook file types, it’s important to determine where they are located and search them for responsiveness.  MSG is also the most common format for native production of individual responsive Outlook emails.

Other Outlook file types that might contain responsive information are EML (Electronic Mail), which is the Outlook Express email format and PAB (Personal Address Book), which, as the name implies, stores the user’s contact information.

Of course, Outlook emails are not just stored within EDB files on the server or these other file types on the local workstation or portable media; they can also be stored within an email archiving system or synchronized to phones and other portable devices.  Regardless, it’s important to account for the different file types when collecting potentially responsive Outlook emails for discovery.

So, what do you think?  Are you searching all of these file types for responsive Outlook 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.

JP Morgan Chase Sanctioned for a Failure to Preserve Skill Codes – eDiscovery Case Law

Last week, we discussed how the Equal Employment Opportunity Commission (EEOC) was sanctioned for failing to comply with a motion to compel production of social media data that they had been previously ordered to produce.  Now, the “shoe is on the other foot” as their opponent in another case has been sanctioned for spoliation of data.

In EEOC v. JP Morgan Chase Bank, 2:09-cv-864 (S.D. Ohio Feb. 28, 2013), District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.

In this gender discrimination case, the plaintiff requested skill codes from the defendant that determined how calls were routed, contending that statistical analysis of the skill code data would reveal discrimination by illustrating that skill codes resulted in the more lucrative calls being directed to male employees.  When defendant did not provide the plaintiff with select skill code data records and other information, the plaintiff filed a motion to compel, which was granted (for most of the requested date range).  When the defendant again failed to produce the data, the plaintiff filed a second motion to compel, then withdrew it after the parties appeared to agree to resolve issues (documented in the Magistrate Judge’s order), then filed the motion for sanctions after the defendant failed to comply, indicating that the defendant had purged data from July 8, 2006 through March 10, 2007.

Noting that it is “curious to this Court that defendant began to preserve some other electronic information shortly thereafter” class notices from the plaintiff in 2008 and 2009, “but not all skill login data until late 2010”, Judge Frost stated that “Defendant’s failure to establish a litigation hold is inexcusable. The multiple notices that should have triggered a hold and Defendant’s dubious failure if not outright refusal to recognize or accept the scope of this litigation and that the relevant data reaches beyond the statutory period present exceptional circumstances that remove the conduct here from the protections provided by Rule 37(e).”

As a result, indicating that “Defendant’s conduct constitutes at least negligence and reaches for willful blindness bordering on intentionality”, Judge Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.

So, what do you think?  Did the defendant’s conduct warrant the sanctions?  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.

Award to Apple in Samsung Case Cut Almost in Half, For Now – eDiscovery Case Law

In Apple Inc. v. Samsung Elecs. Co., Case No.: C 11-CV-01846-LHK (N.D. Cal. Mar. 1, 2013), District Judge Lucy Koh reduced the amount of the previous jury award against Samsung in its ongoing intellectual property case from nearly $1.05 billion to over $598 million, due to ordering a new trial on damages for several Samsung products that amounted to over $450 million being stricken from the jury’s award.

In August of last year, a jury of nine found that Samsung infringed all but one of the seven patents at issue and found all seven of Apple’s patents valid – despite Samsung’s attempts to have them thrown out. They also determined that Apple didn’t violate any of the five patents Samsung asserted in the case.  Apple had been requesting $2.5 billion in damages.  Apple later requested additional damages of $707 million to be added to the $1.05 billion jury verdict.  This case was notable from an eDiscovery perspective due to the adverse inference instruction issued by California Magistrate Judge Paul S. Grewal against Samsung just prior to the start of trial for spoliation of data, though it appears that the adverse inference instruction did not have a significant impact in the verdict.

Notice of the Patents

A significant portion of this ruling was related to notice of the patents.  As Judge Koh noted in her ruling, “Under 35 U.S.C. § 287(a), there can be no damages award where a defendant did not have actual or constructive notice of the patent or registered trade dress at issue. Thus, it is improper to award damages for sales made before the defendant had notice of the patent, and an award that includes damages for sales made before notice of any of the intellectual property (“IP”) infringed is excessive as a matter of law.”  The parties disputed whether Apple had given Samsung notice of each of the patents prior to the filing of the complaint and the amended complaint.

Apple had provided to the Court numbers necessary to calculate Samsung’s profits and reasonable royalty awards based on damages numbers provided by Apple’s damages expert, but with later notice dates, enabling the Court, for some products, to calculate how much of the jury’s award compensated for the sales before Samsung had notice of the relevant IP.  However, as Judge Koh noted, “for other products, the jury awarded an impermissible form of damages for some period of time, because Samsung had notice only of utility patents for some period, but an award of infringer’s profits was made covering the entire period from August 4, 2010 to June 15, 2012. For these products, the Court cannot remedy the problem by simply subtracting the extra sales.” {emphasis added}  The Court had instructed the jury that infringer’s profits are not a legally permissible remedy for utility patent infringement.

Ruling

Therefore, Judge Koh ordered a new trial on damages for 14 products, totaling $450,514,650 being stricken from the jury’s award.  This left an award of $598,908,892 on the remaining awarded products.

So, what do you think?  What will be the final award and how much will it cost to determine that?  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.

EEOC Sanctioned for Failing to Comply with Motion to Compel Production – eDiscovery Case Law

As noted previously in this blog, the Equal Employment Opportunity Commission (EEOC) was ordered to turn over social media information related to a class action case alleging sexual harassment and retaliation.  Apparently, they were less than cooperative in complying with that order.

In EEOC v. Original Honeybaked Ham Co. of Georgia, 11-cv-02560-MSK-MEH, 2012 U.S. Dist. (D. Colo. Feb. 27, 2013), Colorado Magistrate Judge Michael E. Hegarty sanctioned the EEOC for failing to provide discovery of social media content.

This has been a busy case with at least eight court rulings in 2013 alone, including ruling where Judge Hegarty barred the EEOC from asserting claims not specifically identified during pre-suit litigation and prohibited the EEOC from seeking relief on behalf of individuals who the defendant could not reasonably identify from the information provided by the EEOC.

In this ruling, Judge Hegarty stated: “I agree that the EEOC has, on several occasions, caused unnecessary expense and delay in this case. In certain respects, the EEOC has been negligent in its discovery obligations, dilatory in cooperating with defense counsel, and somewhat cavalier in its responsibility to the United States District Court.”

Elaborating, Judge Hegarty stated, as follows:

“The offending conduct has been demonstrated in several aspects of the EEOC’s discovery obligations. These include, without limitation, the following. First, the circumstances surrounding the EEOC’s representations to this Court concerning its decision to use its own information technology personnel to engage in forensic discovery of the Claimants’ social media (cell phones for texting, web sites for blogging, computers for emailing), for which I had originally appointed a special master. The EEOC unequivocally requested this change, which I made an Order of the Court on November 14, 2012 (docket #248). Weeks later, the EEOC reneged on this representation, requiring the Court and the Defendant to go back to the drawing board. Second, in a similar vein, the EEOC changed its position — again ostensibly because some supervisor(s) did not agree with the decisions that the line attorneys had made — after lengthy negotiation and agreement with Defendant concerning the contents of a questionnaire to be given to the Claimants in this case, designed to assist in identifying the social media that would be forensically examined. The EEOC’s change of mind in midstream (and sometimes well downstream) has required the Defendant to pay its attorneys more than should have been required and has multiplied and delayed these proceedings unnecessarily.”

Stating that he had “for some time, believed that the EEOC’s conduct was causing the Defendant to spend more money in this lawsuit than necessary”, Judge Hegarty granted (in part) the defendants’ Motion for Sanctions and required the EEOC to “pay the reasonable attorney’s fees and costs expended in bringing this Motion”.  Perhaps more to come.

So, what do you think?  Was the sanction sufficient?  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 Rules Production Must be TIFFs with Bates Numbers – eDiscovery Case Law

In Branhaven, LLC v. Beeftek, Inc., 2013 U.S. Dist., (D. Md. Jan. 4, 2013), Maryland Magistrate Judge Susan K. Gauvey sanctioned plaintiff’s attorneys for wrongfully certifying the completeness of their eDiscovery production and also ruled that defendants “demonstrated that without Bates stamping and .tiff format”, the plaintiff’s production “was not reasonably usable and therefore was insufficient under Rule 34”.

In this trademark infringement suit, the defendants alleged numerous instances of “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation” by the plaintiff, resulting in $51,122 in legal fees and expenses related to the plaintiff’s “document dump” of 112,000 pages of electronically stored information (ESI).  The Plaintiffs produced their ESI in PDF format, which was challenged by the defendants, because the production was untimely and not in TIFF format with Bates Numbers on every page.

While noting that the court did not “want to micromanage discovery between counsel”, Judge Gauvey stated however that “neither does this judge want to endorse this ‘hands off’ approach in working with clients to meet discovery obligations and this casual and even reckless attitude of plaintiff’s counsel to opposing party’s right to timely and orderly discovery.”

With regard to the PDF production, Judge Gauvey referred to the plaintiff’s contention that “the Protocol for Discovery of Electronically Stored Information (Local Rules of District of Maryland) which states that TIFF is the preferred format is only advisory” as a “weak defense”.

Judge Gauvey also noted “as defendants point out, Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options regarding the form in which a party may produce documents and plaintiff did not satisfy either. The July 20 production was not in a form ‘in which it is ordinarily maintained’ or in ‘a reasonably usable form’…The Advisory Committee Notes to Rule 34 warn that: ‘[a] party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs the risk that the requesting party can show that the produced form is not reasonably usable’…That is precisely what happened here…Defendant was blindsided by the volume of the documents (since the prior productions consisted of 388 pages). Moreover, defendants had every reason to think that the documents would be completely Bates-stamped, as prior productions were and further defendants had no reason to think that this production would be so incredibly voluminous, as to require special arrangements and explicit agreement.”

Judge Gauvey ordered the defendant to submit a bill of costs by January 15 for the technical fees they incurred to process the flawed production (which they did, for $2,200). The plaintiff also agreed to pay an undisclosed sum in attorneys’ fees related to the sanctions motion.

On the surface, the ruling that “without Bates stamping and .tiff format, the data was not reasonably usable and therefore was insufficient under Rule 34” appears to take a step backward with regard to production format expectations.  However, the ruling also notes that the production “was not in a form ‘in which it is ordinarily maintained’” and the plaintiff’s previous PDF productions (apparently Bates stamped) and the defendant’s productions in PDF format (also presumably Bates stamped) were allowed.  Perhaps, if the plaintiff had produced the files in native format instead of a poorly executed PDF format production, the ruling would have been different?

So, what do you think?  Does this ruling appear to be a setback for native productions?  Or merely reflection of a poorly executed PDF format production?  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.

Five Common Myths About Predictive Coding – eDiscovery Best Practices

During my interviews with various thought leaders (a list of which can be found here, with links to each interview), we discussed various aspects of predictive coding and some of the perceived myths that exist regarding predictive coding and what it means to the review process.  I thought it would be a good idea to recap some of those myths and how they compare to the “reality” (at least as some of us see it).  Or maybe just me.  🙂

1.     Predictive Coding is New Technology

Actually, with all due respect to each of the various vendors that have their own custom algorithm for predictive coding, the technology for predictive coding as a whole is not new technology.  Ever heard of artificial intelligence?  Predictive coding, in fact, applies artificial intelligence to the review process.  With all of the acronyms we use to describe predictive coding, here’s one more for consideration: “Artificial Intelligence for Review” or “AIR”.  May not catch on, but I like it.

Maybe attorneys would be more receptive to it if they understood as artificial intelligence?  As Laura Zubulake pointed out in my interview with her, “For years, algorithms have been used in government, law enforcement, and Wall Street.  It is not a new concept.”  With that in mind, Ralph Losey predicts that “The future is artificial intelligence leveraging your human intelligence and teaching a computer what you know about a particular case and then letting the computer do what it does best – which is read at 1 million miles per hour and be totally consistent.”

2.     Predictive Coding is Just Technology

Treating predictive coding as just the algorithm that “reviews” the documents is shortsighted.  Predictive coding is a process that includes the algorithm.  Without a sound approach for identifying appropriate example documents for the collection, ensuring educated and knowledgeable reviewers to appropriately code those documents and testing and evaluating the results to confirm success, the algorithm alone would simply be another case of “garbage in, garbage out” and doomed to fail.

As discussed by both George Socha and Tom Gelbmann during their interviews with this blog, EDRM’s Search project has published the Computer Assisted Review Reference Model (CARRM), which has taken steps to define that sound approach.  Nigel Murray also noted that “The people who really understand computer assisted review understand that it requires a process.”  So, it’s more than just the technology.

3.     Predictive Coding and Keyword Searching are Mutually Exclusive

I’ve talked to some people that think that predictive coding and key word searching are mutually exclusive, i.e., that you wouldn’t perform key word searching on a case where you plan to use predictive coding.  Not necessarily.  Ralph Losey advocates a “multimodal” approach, noting it as: “more than one kind of search – using predictive coding, but also using keyword search, concept search, similarity search, all kinds of other methods that we have developed over the years to help train the machine.  The main goal is to train the machine.”

4.     Predictive Coding Eliminates Manual Review

Many people think of predictive coding as the death of manual review, with all attorney reviewers being replaced by machines.  Actually, manual review is a part of the predictive coding process in several aspects, including: 1) Subject matter knowledgeable reviewers are necessary to perform review to create a training set of documents for the technology, 2) After the process is performed, both sets (the included and excluded documents) are sampled and the samples are reviewed to determine the effectiveness of the process, and 3) The resulting responsive set is generally reviewed to confirm responsiveness and also to determine whether the documents are privileged.  Without manual review to train the technology and verify the results, the process would fail.

5.     Predictive Coding Has to Be Perfect to Be Useful

Detractors of predictive coding note that predictive coding can miss plenty of responsive documents and is nowhere near 100% accurate.  In one recent case, the producing party estimated as many as 31,000 relevant documents may have been missed by the predictive coding process.  However, they also estimated that a much more costly manual review would have missed as many as 62,000 relevant documents.

Craig Ball’s analogy about the two hikers that encounter the angry grizzly bear is appropriate – the one hiker doesn’t have to outrun the bear, just the other hiker.  Craig notes: “That is how I look at technology assisted review.  It does not have to be vastly superior to human review; it only has to outrun human review.  It just has to be as good or better while being faster and cheaper.”

So, what do you think?  Do you agree that these are myths?  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.

Craig Ball of Craig D. Ball, P.C. – eDiscovery Trends, Part 3

This is the tenth (and final) of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,000 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com.

Craig was very generous with his time again this year and our interview with Craig had so much good information in it, we couldn’t fit it all into a single post.  Wednesday was part 1 and yesterday was part 2.  Today is the third and last part.  A three-parter!

Note: I asked Craig the questions in a different order and, since the show had not started yet when I interviewed him, instead asked about the sessions in which he was speaking.

What are you working on that you’d like our readers to know about?

I’m really trying to make 2013 the year of distilling an extensive but idiosyncratic body of work that I’ve amassed through years of writing and bring it together into a more coherent curriculum.  I want to develop a no-cost casebook for law students and to structure my work so that it can be more useful for people in different places and phases of their eDiscovery education.  So, I’ll be working on that in the first six or eight months of 2013 as both an academic and a personal project.

I’m also trying to go back to roots and rethink some of the assumptions that I’ve made about what people understand.  It’s frustrating to find that lawyers talking about, say, load files when they don’t really know what a load file is, they’ve never looked at a load file.  They’ve left it to somebody else and, so, the resolution of difficulties has gone through so many hands and is plagued by so much miscommunication.   I’d like to put some things out there that will enable lawyers in a non-threatening and accessible way to gain comfort in having a dialog about the fundamentals of eDiscovery that you and I take for granted.  So, that we don’t have to have this reliance upon vendors for the simplest issues.  I don’t mean that vendors won’t do the work, but I don’t think we should have to bring a technical translator in for every phone call.

There should be a corpus of competence that every litigator brings to the party, enabling them to frame basic protocols and agreements that aren’t merely parroting something that they don’t understand, but enabling them to negotiate about issues in ways that the resolutions actually make sense.  Saying “I won’t give you 500 search terms, but I’ll give you 250” isn’t a rational resolution.  It’s arbitrary.

There are other kinds of cases that you can identify search terms “all the live long day” and they’re really never going to get you that much closer to the documents you want.  The best example in recent years was the Pippins v. KPMG case.  KPMG was arguing that they could use search terms against samples to identify forensically significant information about work day and work responsibility.  That didn’t make any sense to me at all.  The kinds of data they were looking for wasn’t going to be easily found by using keyword search.  It was going to require finding data of a certain character and bringing a certain kind of analysis to it, not an objective culling method like search terms.  Search terms have become like the expression “if you have a hammer, the whole world looks like a nail”.  We need to get away from that.

I think a little education made palatable will go a long way.  We need some good solid education and I’m trying to come up with something that people will borrow and build on.  I want it to be something that’s good enough that people will say “let’s just steal his stuff”.  That’s why I put it out there – it’s nice that they credit me and I appreciate it; but if what you really want to do is teach people, you don’t do it for the credit, you do it for the education.  That’s what I’m about, more this year than ever before.

Thanks, Craig, for participating in the interview!

And to the readers, as always, 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.