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Court Orders Sharing of Costs for Forensic Examination of Plaintiff’s Emails – eDiscovery Case Law

In Zeller v. So. Central Emergency Med. Servs. Inc., 1:13-CV-2584 (M.D. Pa. May 20, 2014), Pennsylvania Magistrate Judge Karoline Mehalchick used the Zubulake seven factor test to rule that the costs for restoring and searching the plaintiff’s emails should be shared, up to a maximum contribution by $1,500 by the plaintiff.

In this wrongful termination case based on plaintiff’s claims of retaliation by the defendant after the plaintiff took a leave of absence under the Family and Medical Leave Act (FMLA), the parties began the eDiscovery process to recover the plaintiff’s emails and asked the Court to resolve the issue of “first review” of documents identified as a result of an agreed upon search of Plaintiff’s emails, and the matter of cost-sharing.

The plaintiff asserted that he is entitled to a “first review” of all documents to be produced while the defendants asserted that after forensic retrieval of emails from Plaintiff’s email account, all non-potentially privileged documents should be forwarded directly to the defendants to save time.  Noting that “Plaintiff has no obligation to produce emails that are wholly irrelevant to either party’s claim or defense” and that broad search terms such as the plaintiff’s wife’s name was used, Judge Mehalchick ruled that the plaintiff was entitled to a “first review” of the results of the forensic examination of his email account.

Regarding the cost sharing request by the defendants, Judge Mehalchick referenced Fed. R. Civ. P. 26(b)(2)(B) and determined that the data requested was inaccessible without the forensic examination and used the seven factor balance test below for cost-shifting from Zubulake v. UBS Warburg to decide whether forensic examination costs should be shifted.  The factors are:

  1. The extent to which the request is specifically tailored to discover relevant information;
  2. The availability of such information from other sources;
  3. The total cost of production, compared to the amount in controversy;
  4. The total cost of production, compared to the resources available to each party;
  5. The relative ability of each party to control costs and its incentive to do so;
  6. The importance of the issues at stake in the litigation; and
  7. The relative benefits to the parties of obtaining the information.

Judge Mehalchick stated that “the parties were unable to identify the total cost of production of the search, compared to the amount in controversy and the resources to each party”.  However, with regard to the other five factors, she ruled that “the request is specifically tailored to discovery relevant information”, that “there is no other source which could possibly be available”, that since the parties have agreed on a forensic examiner “neither party has any more ability than the other to control the cost”, that “the information sought is important to the issues at stake in the litigation” and that “it is to the benefit of both parties to obtain the information sought”.

As a result, Judge Mehalchick found “that some cost-shifting is appropriate” and ruled “Plaintiff and Defendant should share equally in the cost of restoring and searching Plaintiff’s emails, up to a maximum contribution by Plaintiff of One Thousand Five Hundred Dollars ($1500.00).”

So, what do you think?  Was the Zubulake test applied appropriately?  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.

LinkedIn’s Transparency Report – Social Tech eDiscovery

Yesterday, we talked about LinkedIn’s Privacy and Law Enforcement Data Request Guidelines.  Like Twitter and other social media companies, LinkedIn also discloses a semi-annual Transparency Report to inform the public of the frequency and type of government requests the company receives regarding member data.  Let’s take a look.

With regards to the reporting, it’s worth noting that LinkedIn and other web-based companies cannot be fully transparent because of restrictions imposed on disclosing the number of national security-related requests received from the U.S. government. In A Letter to the LinkedIn Community, Erika Rottenberg, the Vice President, General Counsel and Secretary of LinkedIn, explains that, “we have been expressly prohibited by the U.S. government from disclosing the number of U.S. national security-related requests we receive, if any. This prohibition, which limits our ability to provide the transparency that we think our members and the public deserve, has been the source of great disappointment and frustration to us.”

In September 2013, LinkedIn filed legal challenges seeking the right to provide greater transparency into the number of national security-related requests they receive from the U.S. government. And last December they released, along with other technology companies, government surveillance reform principles that highlight government request transparency as a key part of necessary reform. In response to the legal challenges and advocacy of LinkedIn and other technology companies, the U.S. government officially changed its policy regarding the reporting of national security-related requests on January 27, 2014, to increase transparency (detailed in the articleGoogle, Yahoo and Linkedin disclose details on US National Security requests).

So, the Transparency Report isn’t as transparent as LinkedIn (and other providers) would like, but it’s better.

With that in mind, in the latest Transparency Report, covering the second half of 2013, there were 72 government requests for member data globally reported, with 56 of those (78%) coming from the US.   Requests actually dropped 13% from the first half of 2013 (from 83 to 72 globally and from 70 to 56 in the US – 20% drop).  Those requests impacted 110 member accounts globally, 90 of which were in the US (82%).  While requests dropped in the second half of 2013, the accounts affected rose from 97 to 110 (13% rise) globally and from 84 to 90 in the US (7%).  LinkedIn provides stats for the last two years on government requests for member data and member accounts impacted (at six month intervals).  In the most recent six months, LinkedIn provided data in response to overall requests 47% of the time (61% of the time to US requests).

Next week, we will take a look at Facebook’s policies and transparency.

So, what do you think?  Have you ever request information from LinkedIn for discovery purposes?  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.

LinkedIn Has Privacy and Law Enforcement Data Request Guidelines Too – Social Tech eDiscovery

Last week, we discussed recent updates to Twitter’s Law Enforcement policies as well as Twitter’s latest Transparency Report to show government requests for data.  Today, let’s take a look at the Privacy Policy and Law Enforcement Guidelines for LinkedIn.

This is our first time to take a look at LinkedIn, which (as you probably know) is a business-focused social networking site, designed for professional networking.  On March 26th of this year, LinkedIn updated its Terms of Service, which include its Privacy Policy and User Agreement, in part because they acquired Pulse, a mobile app, and SlideShare, a sharing platform for business documents, videos and presentations. As a result, LinkedIn integrated SlideShare and Pulse’s Terms of Service into one unified agreement.

The Privacy Policy is broken into four main sections: 1) What information we collect, 2) How we use your personal information, 3) Your choices & obligations and 4) Other information.  In the “How we use your personal information”, LinkedIn notes that “It is possible that we may need to disclose personal information, profile information, or information about your activities as a Member or Visitor when required by law, subpoena, or other legal process” as well as to investigate potential illegal activities, enforce the User Agreement or exercise the rights of LinkedIn or its members.  With regard to notifying users about these requests, LinkedIn states they “attempt to notify Members about legal demands for their data when appropriate in our judgment, unless prohibited by law or court order or when the request is an emergency” and they “may dispute such demands when we believe, in our discretion, that the requests are overbroad, vague or lack proper authority”.

In the “Your choices & obligations” section, LinkedIn’s policies regarding the access rights and information on closing members’ accounts are similar to those of Facebook andTwitter. If members close their account, their information will be removed within 24 hours, and LinkedIn delete closed account information and de-personalizes logs and other backup information within 30 days (unless required for legal obligations, meeting regulatory requirements, resolving disputes, and preventing fraud and abuse).

LinkedIn’s Law Enforcement Guidelines are kept in a separate PDF document.  The Guidelines answer questions such as the type of data requests you can make, your contact information that you must provide, information being requested, types of data that might be available, whether members will be notified that their information is being requested, non-US requirements, etc.  LinkedIn only accepts Data Requests, such as subpoenas and search warrants; Preservation Requests, in connection with official criminal investigations; and Emergency Requests, using the Emergency Request Form on the last page. You can only submit requests via fax, certified mail, express courier or in person, NOT online.  What, no horse and buggy?

Tomorrow, we will take a look at LinkedIn’s Transparency Report to see how many government requests they receive.  It will be here before you know it!

So, what do you think?  Have you ever had to request data from LinkedIn for a 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 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 Denies Defendant’s Request to Image Plaintiff’s PCs Three Years after Termination – eDiscovery Case Law
 

Here’s an interesting case courtesy of Virginia Lawyer’s Weekly…

In Downs v. Virginia Health Systems, Civil No. 5:13cv00083, (W.D. Va. June 2, 2014), Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

The plaintiff brought an employee discrimination case against the defendant following being terminated after nearly seventeen years of employment as an executive secretary.  Among the reasons the defendant gave to justify her discharge was that that she had accessed her supervisor’s e-mail account without authority (she disputed that the access was not authorized) and that she had similarly forwarded information from that account to her personal email accounts and her home computers without permission.

The plaintiff represented that she had deleted all material she sent to her home computers following her August 2011 termination; therefore, the defendant requested to have the plaintiff’s two family computers mirror-imaged “to ensure against any further spoliation or destruction of evidence”.  The plaintiff objected to that request as “overly broad, burdensome, ‘personally intrusive,’ and ‘would necessarily invade’ the attorney-client privilege”.  She also argued that the defendants’ in-house IT experts and its own computer logs and reports would provide the same information being requested by the defendant to be mirror-imaged.

Judge Welsh stated that “On its face, the discovery issue presented by the defendants’ request for an exhaustive forensic examination of the plaintiff’s computers is also directly within the scope of ESI discovery contemplated by the inspection, copying, testing and sampling provisions of Rule 34(a)(1)(A).”  Ultimately, however, he also stated as follows:

“Consideration of the defendants’ ESI motion in a manner consistent with the forgoing discovery rules, standards and principles, compels the following findings and conclusions:

(1) nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) the “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) there was no duty on the part of the plaintiff to preserve her family computers as evidence,

(4) principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) on the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.”

As a result, “even though the defendants have demonstrated a connection between the plaintiff’s two family computers and the issues this lawsuit”, Judge Welsh stated that “the court’s consideration of the several other relevant factors, including the proportionality balance required by Rule 26(b)(2), all weigh heavily against permitting the exhaustive and intrusive computer forensic examination the defendants seek” and denied the defendant’s motion to compel.

So, what do you think?  Should the drives have been imaged or did the defendant’s request fail the proportionality test?  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 Remains Transparent Regarding Government Requests – Social Tech eDiscovery

Yesterday, we took an updated look at Twitter to see how it handles private information and law enforcement requests (such as subpoenas) and what has changed since our last look about two years ago.  Today, we will take a look at Twitter’s latest Transparency Report to show government requests for data over the last six months of 2013.

Transparency reports are typically issued by companies to disclose numerous statistics related to requests for user data, records, and website content. These reports indicate the frequency and authority that governments request data or records over the given period. Due to the creation of these reports, the public may be informed of the private information governments gain access to via search warrants, court subpoenas and other methods.  Many other major communication platforms provide Transparency Reports as well, such as Facebook, LinkedIn, Google and Microsoft.

Twitter began publishing Transparency Reports in 2012 (we took a look at their first one here) and has continued doing so every six months or so.  Twitter’s current format for their Transparency Report is divided into three categories: trends in government requests for account information, government requests for content removal, and copyright notices and is available for every reporting period since Twitter began publishing the report. The Transparency Report also offers insight as to whether or not Twitter acts upon the requests sent to the company.

The first category is Information Requests. This includes worldwide government requests for account information typically connected to criminal investigations. For the six month period from July 1 to December 31, 2013, Twitter had 1,410 information requests. Due partly to the influence of Twitter’s growing global expansion, this number is a 22% increase from the prior period; however, the United States still accounted for 59% of the total requests.

In the Removal Requests section, Twitter includes government requests and other complaints of illegal content from authorized reporters to remove or withhold its content. In the first half of 2013, there were a total of 60 requests. However, in the second half of 2013 this number was over five times greater – 377 requests!  Now that’s an upsurge!  309 of those requests came from one country – France.  The removal requests number does not include emergency disclosure report numbers, as this information cannot be disclosed to the general public at this time.

As for copyright notices, Digital Millennium Copyright Act (DMCA) takedown notices rose from 5,753 in the prior period to 6,680 – a 16 percent increase.  To find more information about Twitter’s Transparency Reports, you can review them online by clicking here.

Next week, we will take a look at how another platform – LinkedIn – handles privacy, law enforcement requests and transparency.

So, what do you think?  Do you feel that Twitter provides enough information in their report?  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’s Law Enforcement Policies Revisited Again – Social Tech eDiscovery

It’s time to take another look at the social media platforms to see how they handle private information and law enforcement requests (such as subpoenas).  Let’s start with Twitter.

In 2010 and 2012, we reviewed Twitter’s Privacy Policy and Law Enforcement Guidelines.  Since our last review, despite their efforts to fight it, Twitter was ordered to produce tweets for a New York criminal case (People v. Harris).  At the time, Manhattan Criminal Court Judge Matthew Sciarrino stated that “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy”, but acknowledged that his decision was “partially based on Twitter’s then terms of service agreement”, which was subsequently modified to add the statement “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.”  After its appeal was denied, Twitter ultimately complied with the order.

There aren’t a lot of changes to Twitter’s Privacy Policy since our post in 2012, though the page is rearranged.  Most information in Twitter is still publicly shared with everyone, as noted by the tip at the top – “What you say on Twitter may be viewed all around the world instantly” (which former congressman and failed NYC mayor candidate Anthony Weiner famously discovered).  Your privacy settings determine whether some information such as location of tweets, email address and cell phone number is private or not.

In the Privacy Policy, Twitter now provides some details about Data Retention of account data, which is about 30 days from the date of deactivation, with the data being permanently deleted within a week afterwards.  Although the Data Retention section of the Guidelines for Law Enforcement page still states “Twitter retains different types of information for different time periods”.

One key change to the Guidelines for Law Enforcement page is that Twitter now provides a web form for law enforcement officers to submit general inquiries or emergency disclosure requests (no more sending faxes!).  If you’re not an authorized law enforcement or government representative, you can’t use the form.

Tomorrow, we will take a look at Twitter’s latest Transparency Report to show government requests for data over the last six months of 2013.  See you then!

So, what do you think?  Have you needed to request information from Twitter for litigation purposes?  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.

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   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.

He Sees You When You’re Sleeping — eDiscovery Trends
 

A recent post in the Law Librarians Blog illustrates not only the different ways in which personal data can be captured, but also the continued growth of devices that might contain that data.

In He Sees You When You’re Sleeping, He Knows When You’re Awake…, the authors discuss potential tracking of mouse movements, current data tracking on smart TVs and even the possibility for data to be kept and tracked on…your toothbrush:

  • An October story from Ars Technica discusses how Facebook is working on a way to log cursor movements, beyond tracking where someone clicks on a page to determine an ad’s effectiveness.  According to the Wall Street Journal, Facebook wants to pay attention to the areas a cursor lingers over, even without a click or other interaction.  And, if you’re using a mobile device, Facebook will still be noting when, for instance, “a user’s newsfeed is visible at a given moment on the screen of his or her mobile phone.”
  • Imagine if your toothbrush could keep track of your brushing habits?  According to ZDNet, Salesforce CEO Marc Benioff sees that happening.  “Everything is on the Net. And we will be connected in phenomenal new ways," said Benioff. Benioff highlighted how his toothbrush of the future will be connected. The new Philips toothbrush is Wi-Fi based and have GPS. "When I go into the dentist he won't ask if I brushed. He will say what's your login to your Philips account. There will be a whole new level of transparency with my dentist”.
  • One device that is already capturing your personal data is the smart TV, in some cases whether you want it or not.  A blogger in the U.K. has discovered that his LG smart TV sends details about his viewing habits back to LG servers.  Those habits also include the file names of items viewed from a connected USB stick.  There is a setting in the TV that purports to turn this behavior off (it’s on by default).  It doesn’t work as data is forwarded to LG no matter what the setting.  LG’s response to the disclosure was less than reassuring – “The advice we have been given is that unfortunately as you accepted the Terms and Conditions on your TV, your concerns would be best directed to the retailer,” the representatives wrote in a response to the blogger. “We understand you feel you should have been made aware of these T’s and C’s at the point of sale, and for obvious reasons LG are unable to pass comment on their actions.”

Nice.  Imagine a case where, in addition to hard drives and smart phones, data collectors need to perform collection on flatscreen TVs and toothbrushes?  If it sounds farfetched, remember that, several years ago, cell phones didn’t store data and texts didn’t even exist.

So, what do you think?  What is the most unusual device from which you’ve ever collected data?   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.

Judge Grimm Shows that Discovery Doesn’t Have to Be…Grim – eDiscovery Best Practices

On the day this blog debuted, we covered one of the most well-known cases related to discovery abuses (Victor Stanley, Inc. v. Creative Pipe, Inc.), where Maryland District Judge Paul W. Grimm included in his order a provision that the defendant actually be “imprisoned for a period not to exceed two years” if he didn’t pay the plaintiff the attorney’s fees and costs to be awarded.  Now, Judge Grimm provides a new Discovery Order that sets requirements for attorneys in his court to conduct discovery in a proportional manner.

In Ralph Losey’s e-Discovery Team® blog, he provides a two part discussion of Judge Grimm’s new discovery order (Judge Grimm’s New Discovery Order Is Now An e-Discovery Best Practice, Part One and Part Two).  The posts are well worth reading for several reasons, including to see how many ways the Electronic Discovery Best Practices (EDBP.com) model can be displayed (here’s our coverage of it when it was introduced last year).  As Ralph notes:

“First, it is important to note that Judge Grimm’s Discovery Order is an actual Order that he enters at the beginning of many cases. It is not a recommendation, guideline, or suggested protocol. The Maryland District Court’s Suggested Protocol for Discovery of Electronically Stored Information is a separate document that remains in effect. If you do not follow a Suggested Protocol, you may get a grim scowl and a tsk-tsk. If you do not follow an Order, you may go to jail. Just ask Victor Stanley.”

It was technically Mark Pappas of Creative Pipe who was threatened with imprisonment, but let’s not quibble… 😉

Anyway, as Ralph notes, the essence of the order is proportionality, with several phase one limits for proportionality (absent order of the Court upon a showing of good cause or stipulation by the parties), including:

  • RFPs are limited to 15 in number;
  • No more than 10 custodians can be searched;
  • ESI more than 5 years old is excluded;
  • Discovery is limited to reasonably accessible sources;
  • No more than 160 hours shall be expended for search and review services, including identifying potentially responsive ESI, collecting and searching that ESI (by any search method including properly validated keywords, Boolean searches and computer-assisted review), and reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.

Both the producing and receiving parties have responsibilities, as follows:

“The producing party must be able to demonstrate that the search was effectively designed and efficiently conducted…[and] must maintain detailed time records to demonstrate what was done and the time spent doing it, for review by an adversary and the Court, if requested… Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology.”

That isn’t just a set of guidelines, that’s an order!

A copy of Judge Grimm’s new Discovery Order can be found on a link in each of Ralph’s two posts above as well as on Ralph’s site here.

So, what do you think?  What do you think of the order?  Should orders like this be common in other courts?   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 Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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