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Electronic Discovery

Law Firms and the Billable Hour – The Debate Continues: eDiscovery Trends

Over four years ago, I asked the question of whether it’s time to ditch the per hour model for document review.  Back then, I referenced an overbilling situation discussed in an article by a law firm that was recently in the news for a ransomware issue.  But, the debate continues – should law firms still use the billable hour?

In Above the Law (Should Law Firms Still Use The Billable Hour?), in a conversation hosted by Zach Abramowitz (via his ReplyAll conversation mechanism), Zach facilitates a discussion between several legal experts regarding the billable hour and alternative fee agreements (AFAs).  They include: Patrick Lamb, founder of the Valorem Law Group; Adam Steiner, software engineer turned practicing lawyer; Alma Asay, former Gibson Dunn litigator & founder of Allegory; Brad Blickstein, founder of Blickstein Group; Ken Grady, former GC, lean law evangelist at Seyfarth, and adjunct professor at Michigan State University College of Law; Catherine Krow, former partner at Orrick and founder of Digitory Legal; Mike Knowles, firm administrator at Emmanuel Sheppard & Condon; and Keith Lee, lawyer, blogger, and founder of Lawyer Slack.

So, should law firms still be using the billable hour in 2017?  Here are some of the observations by the experts (and my comments in response):

Knowles: “One reason I feel the billable hour is such an ugly term is the surprise/shock the client experiences when they receive a bill. Having worked for 3 different firms, I think, most firms serve their clients well. But we do a lousy job of explaining the process and managing their expectations.”

Agreed – this is one of the biggest problems with the billable hour.  Too many clients are getting “surprised” with the bill with no advanced expectation of what they should expect to pay for the services being provided.

Lee: “Litigation is often about creating variance. Relentlessly, exhaustively, exploring every Avenue and every possibility. Efficiency is not part of the menu because what matters is not being efficient, what matters is winning.

So we’re left with the billable hour.”

Well, that’s great, but winning at what cost?  Is there an unlimited budget to “winning”?

Blickstein: “While there are some matters that are not predictable enough for AFAs (though I suspect if you chunk it up enough they probably are), I honestly think the single biggest reason that we are still using hourly bills is philosophical. Both lawyers and clients perceive the work as a function of time.”

Agreed, if the clients still perceive it that way, what motivation is there to change?

Asay: “When clients and law firms are on the same page about both expectations and curve balls, then whether fees are based on AFAs or billable hours or a mix of both, the relationship is ultimately a win-win.”

That’s ultimately the key.  Staying on the same page with clients takes work and communication.  Curve balls happen – there are always things that come up that you don’t expect – but, if you’re continuing to communicate with the client as those happen, you have a much better chance of keeping the client happy regardless of the billing arrangement.

These are just a sampling of the comments from the experts, click here to view the entire conversation.

So, what do you think?  Should law firms still use the billable hour?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston this Thursday (July 20), Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Limits Burden for Defendant to Search Loan Numbers, Splits Costs Between Parties: eDiscovery Case Law

In Phoenix Light SF Ltd. v. Deutsche Bank Nat’l Trust Co., No. 14cv10103 (JGK)(DF) (S.D.N.Y. June 5, 2017), New York Magistrate Judge Debra Freeman granted the plaintiffs’ motion to compel in part, ordering the defendant to search for 16,000 loan numbers proposed by the plaintiffs’ and ordered the parties to split the costs for performing the searches.

Case Background

In this case where the plaintiffs alleged that the defendant breached contractual and fiduciary obligations owed to the plaintiffs in connection with trusts for which the defendant served as trustee, the plaintiffs filed a motion to compel the defendant to run a search using approximately 245,000 individual loan numbers as discrete search terms or, at least run a sample search, using 16,000 selected loan numbers as search terms and produce documents responsive to the searched loan numbers.

To date, the defendant had only searched for only relevant trust names and the defendant’s own “trust identifiers”, explaining that its “routine” internal practice was to use these trust identifiers – not individual loan numbers – in communicating by email, both internally and externally, about loans within the trusts.  However, the plaintiffs provided the Court with four examples of email strings that were produced in discovery by the defendant, each of which included emails referencing individual loan numbers and not the trust names or identifiers on which the defendant had relied.

In arguing that the additional burden imposed by the search terms requested by the plaintiffs would be disproportionate to its likely yield, the defendant pointed to another case where a search of 72,000 individual loan numbers identified by the plaintiff returned 733,000 documents not previously produced, of which – based on its review of a sample of those documents – the defendant deemed 1.38 percent, at most, to be responsive to the plaintiffs discovery demands.

Judge’s Ruling

With regard to the defendant’s claim that its “routine” practice was to use trust identifiers for communication, Judge Freeman stated: “Plaintiffs have fairly demonstrated that, but for the happenstance that particular emails or attachments in each string included the trust name or identifier, the remainder of the relevant emails would not have been located by Defendant’s prior searches, and therefore would not have been produced. Further, Plaintiffs’ submitted evidence shows that Defendant’s assertion that it was not its practice to reference individual loan numbers in emails, without also referencing a trust name or identifier, is incorrect — or, at least, that Defendant’s employees did not utilize that practice consistently.”

As for the additional burden argument by the defendant, Judge Freeman observed that, in the other case, “the plaintiff apparently did not concur with Defendant that the responsiveness rate for the search performed was as low as Defendant represented” and that “this Court has no way to gauge the potential importance of the non-duplicative documents that were located through that search.”  As a result, Judge Freeman stated: “Plaintiffs should be given the opportunity to review at least the additional documents that a sample loan-number search would uncover and that Defendant would produce as responsive to document requests, and then to return to this Court if, in their view, the volume and/or significance of any newly produced documents warrants a further, more extensive search.”

Judge Freeman therefore ordered the defendant to perform a search for the 16,000 loan numbers, and to “produce to Plaintiff all responsive, non-privileged documents discovered through that search, unless already produced in discovery in identical form.”  Judge Freeman also noted that “counsel should confer in good faith” regarding the use of qualifiers to avoid “false hits”, and found it “reasonable” for the plaintiffs to share half of vendor costs to perform the searches, in the approximate amount of $11,000.

So, what do you think?  Does this level of burden dictate splitting of costs?  Or does it depend on the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

DOJ Asks SCOTUS to Take on Microsoft Case and Verizon Suffers its own Data Breach: eDiscovery Trends

A rare two-topic day, but both are notable…

Remember the Microsoft Ireland Warrant case, where the Second Circuit reversed earlier rulings and denied the government’s efforts to compel Microsoft to provide emails in that case?  It may not be over yet.

According to The Recorder (Government Asks SCOTUS to Overturn Microsoft Decision on Overseas Data, written by Ben Hancock), the Department of Justice last month asked the U.S. Supreme Court to overturn that landmark appeals court decision handed down last summer in favor of Microsoft Corp. that put their company data stored overseas mostly out of reach of U.S. law enforcement.  The case stems from a warrant issued in December 2013 by a U.S. magistrate judge in the Southern District of New York directing Microsoft to turn over a criminal suspect’s email data. Microsoft determined that the data was stored at its center in Dublin, and subsequently moved to quash the warrant. The district judge denied that request, but Microsoft prevailed in an appeal to the circuit court.

Here’s a link to the Petition for a Writ of Certiorari filed by the DOJ.

If the government’s petition is taken up by the high court, its decision could introduce some measure of clarity (and hopefully consistency) in the multiple legal battles playing out around the country over whether prosecutors can enforce warrants for private data stored abroad in the cloud.  For example, while Microsoft has prevailed so far in this case, Google has had two rulings go against it earlier this year in similar cases.

“It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone,” Brad Smith, Microsoft’s chief legal officer, said in a blog post responding to the DOJ petition. “The DOJ’s position would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.”

It will be interesting to see if SCOTUS takes the case, or we see legislation that clarifies expectations regarding data stored overseas.  Thanks to ACEDS for the tip on this story.

In other news…

As reported by ZDNet, As many as 14 million records of subscribers who called Verizon’s customer services in the past six months were found on an unprotected Amazon S3 storage server controlled by an employee of Nice Systems, an Israel-based company.  The data was downloadable by anyone with the easy-to-guess web address.

Chris Vickery, director of cyber risk research at security firm UpGuard, who found the data, privately told Verizon of the exposure shortly after it was discovered in late-June.  It took over a week before the data was eventually secured.  The customer records were contained in log files that were generated when Verizon customers in the last six months called customer service.

Each record included a customer’s name, a cell phone number, and their account PIN – which if obtained would grant anyone access to a subscriber’s account, according to a Verizon call center representative, who, according to ZDNet spoke on the condition of anonymity as they were not authorized to speak to the press.

A Verizon spokesperson told CNBC on Wednesday that, “[a]s a media outlet recently reported, an employee of one of our vendors put information into a cloud storage area and incorrectly set the storage to allow external access.  We have been able to confirm that the only access to the cloud storage area by a person other than Verizon or its vendor was a researcher who brought this issue to our attention. In other words, there has been no loss or theft of Verizon or Verizon customer information.”

Verizon said the subscribers affected was “overstated” and that the PINs that were available during the breach aren’t actually linked to customer accounts but rather were numbers used to authenticate customers at call centers.

Verizon, of course, produces its excellent Data Breach Investigations Report every year (we’ve covered it the last three years).  Will they have anything to say about their own data breach in next year’s report?  We’ll see.

So, what do you think?  Should data stored internationally, but accessed in the US, be subject to subpoena?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

The ABA Journal “Blawg 100” is Different This Year: eDiscovery Trends

For the past several years, the ABA Journal has published a list of the 100 best legal blogs.  They are requesting input again this year, but, with a twist.  This year, they are expanding the scope of their annual year-end feature beyond legal blogs to also include the best of lawyers’ websites, podcasts and social media.  As a result, they’re renaming it the ABA Journal Web 100.

If you have a favorite law blog (or “blawg”, get it?), law firm website that really impresses you, law-related podcast that you think others should listen to, or someone you think all lawyers should be following on social media, now is the time to nominate it for recognition.

On their Web 100 Amici page, you can complete the form to identify yourself, your employer or law school, your city and email address, the format (blog, law firm website, podcast or social media feed), the title (of the blog, law firm, feed or podcast), the Home Page URL, an example URL or title (of a representative post, feature or episode) and a brief (up to 500 characters) description as to why you’re a fan.  You’re also asked whether you know the creator personally (and admonished to “be honest”) and whether ABA Journal can use your name and comment in their coverage.

On the nomination page, ABA Journal provides sections with more information about “blawg”, law firm website, podcast and social media amici to help guide those in their “Friend of the Web briefs”, which are due by no later than 11:59 p.m. CST on Sunday, July 30, 2017 to include your nomination.

Anyway, if you have enjoyed reading eDiscovery Daily over the past several years and found our blog to be informative, we would love to be recognized!  Feel free to click on the link here to nominate us!  We appreciate the consideration!

There are several other excellent eDiscovery related blogs and resources out there, so feel free to nominate them too.  Our hats are off to all of those who provide eDiscovery news and analysis to the industry.  Hopefully, there will be a greater representation of eDiscovery blogs and resources on the list than there has been in the past couple of years, where hardly any have made the list.  Again, if you would like to nominate any of the blogs (including, of course, eDiscovery Daily) or other resources, click here.  Deadline is July 30.

So, what do you think?  Do you have a favorite eDiscovery blog or source of information?  Share it with our readers!  And, please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Rules Decisively in Battle Between eDiscovery Providers Over Hired Sales Agents: eDiscovery Case Law

In a lawsuit filed by DTI against LDiscovery and four former sales agents of DTI who were hired by LDiscovery, claiming they misappropriated trade secrets, interfered with client relationships and breached their contracts, an opinion provided by New York District Judge Jed S. Rakoff last week detailed his rejection of all arguments by DTI that led to his denial of a motion for a preliminary injunction on June 16.

An article in Bloomberg Law (Judge Rakoff Shoots Down eDiscovery Trade Secrets Case, written by Gabe Friedberg) provides more information, noting that DTI filed its lawsuit in April against the four salesman (who had originally worked for Epiq prior to DTI’s acquisition of Epiq) and LDiscovery, after they resigned from DTI in January.  As the opinion notes, “the Individual Defendants signed employment agreements with LDiscovery whereby they agreed to resign from DTI by no later than January 31, 2017…The agreements set forth that the Individual Defendants will then take a ‘Sabbatical Year,’ during which LDiscovery will “not request and the [Individual Defendants] will not provide, any work, information, or services purported to be restricted by the Epiq [Employment Agreements].””  According to the article, LDiscovery agreed to pay $5.1 million in total bonus payments to the four agents during the “sabbatical year” alone.

Among the contentions by DTI was that the Individual Defendants “have breached or are threatening to breach their nondisclosure covenants by improperly copying and retaining DTI’s proprietary information” by failing to return two thumb drives in their possession, but Judge Rakoff concluded “that this was inadvertent rather than the result of a conspiracy” when forensic analysis failed to show either was used in copying files from DTI.  Another part of that contention was that one of the individual defendants had obtained an invoice spreadsheet from DTI, but Judge Rakoff determined that “DTI voluntarily forwarded the spreadsheet” to him to verify the accuracy of his commission checks and that, while that defendant forwarded it on to the other individual defendants so they could verify theirs as well, Judge Rakoff determined that there was no evidence that they had distributed it to any third parties, including LDiscovery.

DTI also contended that the Individual Defendants breached their employee non-solicitation clauses by jointly searching for new employment and also by allegedly soliciting two other DTI employees, but Judge Rakoff stated that agreement was “unenforceable insofar as it purports to prohibit at-will employees, who have yet to accept an offer of new employment, from “inducing” or even “encouraging” their coworkers to leave their present employer.”  Judge Rakoff also stated this:

“To be sure, if DTI desires to prevent its employees from coordinating their resignations, it is free to hire them pursuant to term employment agreements. DTI, however, cannot use restrictive covenants to supply itself all the benefits of term agreements while simultaneously retaining the right to lay off its personnel whenever it so desires. This is not a proper purpose for such a restraint on free market competition.”

With regard to DTI’s claims that the Individual Defendants breached their client non-solicitation covenants, Judge Rakoff stated that the “Epiq Employment Agreements do not require the Individual Defendants to cease all contact with their clients following their departure from DTI” and referred to “a suggestion by defendant Kreger to grab lunch or for a particular client to call him” (with no testimony provided that the Individual Defendants had solicited those clients for business) as “innocuous”.

As a result, Judge Rakoff dismissed the claims against LDiscovery and granted the individual defendants’ motion to move the case to a private arbitration.

Having heard stories about what some companies will do to enforce non-compete agreements, including sending cease and desist letters for a variety of perceived breaches of those agreements, this is the first instance I can think of where eDiscovery providers disputed the scope and validity of those agreements in court.  Given the huge compensation numbers and the dispute between two heavyweights in the industry (both backed by private equity firms), I wouldn’t be surprised to see more of these types of disputes in the future.  While I cannot dispute the impact of a successful sales person in obtaining clients in the first place, I would have thought that a company’s software and/or services would be the primary factor in retaining those clients.  Silly me.

Bloomberg Law provides a link to the case docket where (if you’re a subscriber), you can click a link to view the opinion.  It’s an interesting and fascinating read.

So, what do you think?  How enforceable should non-compete agreements be?  As always, please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

Is the eDiscovery Business “Tide” Rising or Falling?: eDiscovery Trends

In eDiscovery business, are you swept away with optimism or feeling under water?  Voice your opinion in the latest quarterly eDiscovery Business Confidence Survey!  This time, it’s the Summer 2017 eDiscovery Business Confidence Survey created by Rob Robinson and conducted on his terrific Complex Discovery site.  It’s the second year of the quarterly survey and we’ve covered every round of the survey so far (2016 coverage of results are here, here, here and here, the Winter 2017 coverage is here and the Spring 2017 coverage is here).  Now, it’s time for the Summer 2017 Survey!

As before, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.

This year’s survey consists of nine multiple choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services and may be useful for eDiscovery-related business planning.  It’s a simple nine question survey that literally takes less than a minute to complete.  Who hasn’t got a minute to provide useful information?  As always, individual answers are kept confidential.

The Summer 2017 Survey response period is between today and achievement of 100 responses or August 31, 2017 (whichever comes first).  If the past is any indication, chances are the survey will be closed way before August 31.  So, vote early if you want to be counted!  What more do you need?  Click here to take the survey yourself.

Now that we have entered a second year for the survey, we’ve started to evaluate year over year results to differentiate those variations from quarterly fluctuations and eDiscovery Daily will cover the results once again!

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

Here’s a Chance to Learn How Recent eDiscovery Case Law Has Affected Your Organization: eDiscovery Trends

The best predictor of future behavior is relevant past behavior. Nowhere is that truer than with legal precedents set by past case law decisions, especially when it relates to eDiscovery best practices.  Are you aware of recent case law decisions related to eDiscovery best practices and what that those decisions mean to your organization?

On Wednesday, July 26 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2017.  This one-hour webcast will cover key case law covered by the eDiscovery Daily blog related to eDiscovery for the first half of 2017, what the legal profession can learn from those rulings and whether any of the decisions run counter to expectations set by Federal and State rules for civil procedure. Topics include:

  • How should objections to production requests be handled?
  • Are you required to produce subpoenaed data stored internationally?
  • Should there be a limit to fees assessed for discovery misconduct?
  • When is data stored by a third party considered to be within your control?
  • Should courts dictate search terms to parties?
  • How can you make an effective proportionality argument to address burdensome requests?
  • Can the requesting party dictate the form of production?
  • Does storing data on a file share site waive privilege?
  • If data is intentionally deleted, should Rule 37(e) apply?
  • Is circumstantial evidence of intentional spoliation good enough to warrant sanctions?
  • Should keyword search be performed before Technology-Assisted Review?

I’ll be presenting the webcast, along with Julia Romero Peter, General Counsel and VP of Sales at CloudNine AND Karen DeSouza, Director of Review Services for CloudNine.  To register for the webcast, click here.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

So, what do you think?  Do you think case law regarding eDiscovery issues affects how you manage discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Sure, No Keyword Before TAR, But What About Keyword Instead of TAR?: eDiscovery Best Practices

Last month, we discussed whether to perform keyword search culling before performing Predictive Coding/Technology Assisted Review (TAR) and, like many have concluded before (even a judge in FCA US, LLC v. Cummins, Inc.), we agree that you shouldn’t perform keyword search culling before TAR.  But, should TAR be performed instead of keyword search – in all cases?  Is TAR always preferable to keyword search?

I was asked that question earlier this week by a colleague, so I thought I would relay what I essentially told him.

Many attorneys that I have observed over the years have typically tried to approach keyword search this way: 1) Identify a bunch of potentially responsive terms, 2) string them together with OR operators in between (i.e., {term 1} OR {term 2}, etc.), 3) run the search, 4) add family members (emails and attachments linked to the files with hits) to the results, and 5) begin review.

If that’s the keyword search methodology you plan to use, then, yes, a sound TAR approach is preferable to that approach pretty much every time.  Sure, proportionality concerns can affect the decision, but I would recommend a sound approach over an unsound approach every time.  Unfortunately, that’s the approach a lot of attorneys still use when it comes to keyword search.

However, it’s important to remember that the “A” in TAR stands for “Assisted” and that TAR is not just about the technology, it’s as much about the process that accompanies the technology.  A bad approach to using TAR will generally lead to bad results with the technology, or at least inefficient results.  “Good TAR” includes a sound process for identifying training candidates for the software, reviewing those candidates and repeating the process iteratively until the collection has been classified at a level that’s appropriate to meet the needs of the case.

What about keyword search?  “Good keyword search” also includes a sound process for identifying potentially responsive terms, using various mechanisms to refine those terms (which can include variations, at an appropriate level, that can also be responsive), performing a search for each term, testing the result set (to determine if the term is precise enough and not overbroad) and testing what was not retrieved (to determine what, if anything, might have been missed).  We covered some useful resources for testing and sampling earlier this week here.

Speaking of this week, apparently, this is my week for the “wayback machine” on this blog.  In early 2011, I described a defensible search approach for keyword search for which I created an acronym – “STARR”.  Not Ringo or Bart, but Search, Test, Analyze, Revise (if necessary), Repeat (the first four steps until precision and recall is properly balanced).  While you might think that “STARR” sounds a lot like “TAR”, I coined my acronym for the keyword search approach well before the TAR acronym became popular (just sayin’).

Regardless whether you use STARR or TAR, the key is a sound approach.  Keyword search, if you’re using a sound approach in performing it, can still be an appropriate choice for many cases and document collections.

So, what do you think?  Do you think that keyword search still has a place in eDiscovery?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Declines to Impose Sanctions for Failure to Preserve Web History: eDiscovery Case Law

In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), North Carolina Magistrate Judge Robert B. Jones, Jr., among other rulings, denied the plaintiff’s motion for an order permitting a jury instruction in response to the defendant’s failure to preserve certain internet web browser and search histories, concluding that the plaintiff “is not entitled to a sanction pursuant to Rule 37(e)(1)” and that the plaintiff “is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

Case Background

In this case involving alleged defamatory statements made by the defendant against the plaintiff in an investor presentation, two weeks after the complaint was filed in February 2016, the defendant issued an internal litigation hold notice related to the plaintiff’s claims in this case which defined documents to include electronically-stored information and advised employees to err on the side of preservation if there was a question as to whether material qualified as documents, but did not explicitly reference internet browser histories, internet search histories, or internet sites visited.  In May 2016, approximately 120 days after the publication of the investor presentation, counsel for the plaintiff sent a letter to the defendant’s counsel requesting that the defendant preserve, among other things, the “web browser histories” of individuals involved in the drafting of the January 7, 2016 presentation.  The plaintiff reiterated that request in its document requests in June 2016.

Counsel for the defendant responded that the defendant uses Google Chrome as an internet browser, which deletes web browser history after 90 days, and accordingly, the web browser history information sought in the discovery requests no longer existed and did not exist at the time of the May letter, leading to the motion filed by the plaintiff seeking “a jury instruction to mitigate the harm caused by the defendant’s failure to preserve electronically stored information.”

Judge’s Ruling

Judge Jones initially observed that “while the plaintiff states that he seeks a jury instruction to mitigate the harm caused by the defendant’s failure to preserve electronically stored information (“ESI”), the plaintiff does not define the particular instruction sought.”  Considering Rule 37(e)(1) and Rule 37(e)(2), Judge Jones determined the following:

Observing that “the plaintiff has not established one of the threshold elements of Rule 37(e)—namely, that the lost ESI ‘cannot be restored or replaced through additional discovery. . . .’”, Judge Jones stated that “other avenues of discovery are likely to reveal information about the searches performed in advance of the investor presentation. For example, the plaintiff could seek information about the internet searches performed by the individuals who prepared the investor presentation through deposition testimony.”  Judge Jones also stated that “the plaintiff has failed to make a sufficient showing of prejudice to support relief under Rule 37(e)(1). In order to impose a sanction under Rule 37(e)(1), the court must have some evidence regarding the particular nature of the missing ESI in order to evaluate the prejudice it is being requested to mitigate.”  As a result, Judge Jones determined that “the plaintiff is not entitled to a sanction pursuant to Rule 37(e)(1).”

Judge Jones also ruled that “the plaintiff has also failed to show that the defendant acted with the requisite intent to deprive him of the ESI in order to support the imposition of an adverse jury instruction under Rule 37(e)(2),” noting that “[a]t most, the circumstances indicate the ESI was lost due to the defendant’s negligence, but do not suggest the presence of intentional conduct. Negligence, however, will not support an award of sanctions under Rule 37(e)(2).”  As a result, Judge Jones determined that “the plaintiff is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

So, what do you think?  Should internet histories be a standard form of ESI to be preserved in litigation?  Or does it depend on the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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