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eDiscoveryDaily

Do You Test Your Search Terms Before Proposing Them to Opposing Counsel?: eDiscovery Best Practices

If you don’t, you should.  When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results.  However, if you wait until after the meet and confer with opposing counsel, it can be too late.

On the very first day we introduced eDiscovery Daily, we discussed the danger of using wildcards in your searches (and how they can retrieve vastly different results than you intended).  Let me recap that example.

Several years ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and attempt to negotiate a revised search that was more appropriate.

What made that process difficult was the negotiation with opposing counsel.  My client had already agreed on over 200 terms with opposing counsel and had proposed many of those terms, including this one.  The attorneys had prepared these terms without assistance from a technology consultant (or “geek” if you prefer) – I was brought into the project after the terms were negotiated and agreed upon – and without testing any of the terms.

Since the terms had been agreed upon, opposing counsel was understandably resistant to modifying any of them.  It wasn’t their problem that my client faced having to review all of these files – it was my client’s proposed term that they now wanted to modify.  Fortunately, for this term, we were ultimately able to provide a clear indication that many of the retrieved documents in this search were non-responsive and were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “minefield”, “minefields”, “miner” and “minings” (among other variations).  We were able to reduce the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind” (because we were able to drop “mint” and “mind” and over 200 other words from the responsive hit list).

However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review thousands of additional files that they shouldn’t have had to review.  Had the client included a technical member on the team at the beginning and had they tested each of these searches before negotiating terms with opposing counsel, they would have been able to figure out which terms were overbroad and would have been able to determine more efficient search terms to propose, saving thousands of dollars in review costs.

So, what do you think?  Do you test your search terms before proposing them to opposing counsel?  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 Orders Defendant to Produce Metadata for Previously Produced Emails: eDiscovery Case Law

In Prezio Health, Inc. v. Schenk, et. al., No. 13-1463 (D. Conn., Sept. 9, 2015), after “a careful in camera review” of emails responsive to eighteen keyword search terms, Connecticut Magistrate Judge Joan Glazer Margolis ordered the defendant to produce metadata for eight specific emails which had already been produced to the plaintiff.

Case Background

In this dispute over a non-compete provision, the plaintiff provided a list of 18 search terms to be used in searching the defendants’ computers for emails sent and received by the individual defendant during an 8 month period in 2013. When the defendants produced no documents in response to the search request, the plaintiff filed a Motion to Compel, requesting that the defendants produce all computers or hard drives in their possession on which the individual defendant might have sent or received emails during the relevant timeframe.

In their brief in opposition, the defendants argued, inter alia, that defense counsel had conducted a search of the eighteen search terms and would produce all non-privileged documents that relate to the individual defendant’s employment with either plaintiff or the defendant company, all of which probably were previously produced in this litigation.  The defendants also suggested that they conduct a search of the individual defendant’s email account in an in camera setting for the Court.  In its reply brief, plaintiff countered, inter alia, that it was still entitled to the metadata from these documents.  Per their suggestion, in August, the court ordered the defendants to produce the items responsive to the eighteen search terms for in camera review, and both parties produced emails for the in camera review.

Judge’s Ruling

Regarding the plaintiff’s request for metadata, Judge Margolis stated: “After a careful in camera review, plaintiff is entitled to the metadata for the following eight emails: the two May 6, 2013 emails; the May 13, 2013 email; the two June 6, 2013 emails; the two October 16, 2012 emails; and the December 13, 2012 email. Unless counsel agree otherwise, defense counsel shall make the necessary arrangements and plaintiff promptly shall reimburse defendants for any expenses borne as a result.”

Judge Margolis also stated that “[t]his is not a Recommended Ruling, but a ruling on a non-dispositive motion… As such, it is an order of the Court unless reversed or modified by the District Judge upon timely made objection.”

So, what do you think?  Was an in camera review the best way to rule on the request for metadata?  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.

ICYMI Weekly Summary Newsletter for the Week Ending October 10, 2015

Here are your ICYMI (In Case You Missed It) weekly summaries of the posts for this week (with links to the full post on our blog site) for you to check out:

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law – In Cicon v. State Farm Mutual Auto Ins. Co., Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Europe’s Highest Court Strikes Down 15 Year Old Safe Harbor Agreement: eDiscovery Trends – International eDiscovery just became more difficult. A 27-year-old Austrian law graduate may have brought an end to a 15 year old agreement enabling transatlantic data transfers between the U.S. and European Union because of – wait for it – privacy concerns.

Samsung Doesn’t Have to Write a Check After All…Yet: eDiscovery Case Law – A couple of weeks ago, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

EDRM Has a Twist on its Fall Workshop (and a Webinar Today!): eDiscovery Trends – Around this time of year, EDRM members (like me) expect to convene for our semi-annual visit to St. Paul for the mid-year meeting. This year, EDRM has a twist on the mid-year meeting, which they’re now calling the “fall workshop”. There was also a webinar on Tuesday!

Redactions Aren’t Always as Straightforward as You Think: eDiscovery Best Practices – On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information. You may think that all you need to do is draw a black box over the affected text, but there’s actually a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted. Here are some redaction failures and how to avoid them.

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. 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.

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law

In Cicon v. State Farm Mutual Auto Ins. Co., No. 14-2187 (M.D. Pa. Aug. 21, 2015), Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Case Background

In this case, the plaintiff sued the defendant insurance company regarding coverage of the plaintiff’s injuries in an automobile accident.  During the course of litigation, the defendant produced a privilege log which cursorily described communications between the defendant and legal counsel as well as internal communications between various of its claims personnel.  The plaintiff filed a motion to compel, seeking documents that detailed communications between the defendant and its attorneys in relation to this case, as well as documents that detailed communications between the defendant’s employees or agents regarding this matter.  With regard to the attorney-client communications, the plaintiff argued that they should be produced because many of the attorney-client communications referenced in the defendant’s privilege log occurred before the filing of the complaint that initiated the case.

Judge’s Ruling

With regard to the plaintiff’s argument for producing the attorney-client communications, Judge Conaboy stated “The Court cannot agree. Because Plaintiff retained counsel and threatened litigation via the aforementioned letter of February 18, 2014, all communications between Defendant and its various attorneys that post-date February 18, 2014 are very likely, if not presumptively, concerned with the Defendant’s defense of this matter. Simply put, Plaintiff has cited no evidence that the attorney-client communications Defendant seeks to shield were related to mere business purposes.”  As a result, Judge Conaboy denied the plaintiff’s request to have these documents produced.

With regard to communications between the defendant’s employees, Judge Conaboy ruled to “categorically exclude from production those that post-date Plaintiff’s counsel’s letter of February 18, 2014 threatening litigation”, deciding to “presume that all inter-office communications in this file after that date were prepared in anticipation of litigation and are, thus, properly excluded from discovery except in the redacted form Defendant has proposed.”  However, with regard to the “numerous” inter-office communications in the privilege log that pre-dated the plaintiff’s counsel’s letter, Judge Conaboy concluded that “inter-office communications before that date were prepared in the ordinary course of business, and, consequently, are not subject to work product protection”.  He did note, that “[t]o the extent that any of these documents contain explicit discussion of an attorney’s advice or direction, Defendant may redact the document to exclude such excerpts consistent with the earlier discussion of attorney-client privilege.”

So, what do you think?  Should the defendant have been ordered to produce the non-attorney 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. 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.

Europe’s Highest Court Strikes Down 15 Year Old Safe Harbor Agreement: eDiscovery Trends

International eDiscovery just became more difficult.  A 27-year-old Austrian law graduate may have brought an end to a 15 year old agreement enabling transatlantic data transfers between the U.S. and European Union because of – wait for it – privacy concerns.

According to Law 360 (subscription required), on Tuesday, the Court of Justice of the European Union (‘CJEU’) ruled that the safe harbor pact enabling transatlantic data transfers between the U.S. and European Union should be struck down, agreeing with its top legal adviser in finding that the deal fails to provide an adequate level of protection for EU citizens’ data.

In its opinion, issued two weeks after the Advocate General Yves Bot offered a nonbinding opinion recommending that the safe harbor agreement be struck down, the CJEU ruled that the popular U.S.-EU safe harbor data transfer scheme fails to adequately protect the privacy rights of EU citizens because it puts the needs of U.S. law enforcement officials ahead of these rights by allowing them unfettered access to the transferred data.  As a result, data transfers between EU member states and the US that were once authorized under the Safe Harbor provisions are now considered unlawful.

In its announcement, the CJEU stated “National security, public interest and law enforcement requirements of the United States prevail over the safe harbor scheme, so that United States undertakings are bound to disregard, without limitation, the protective rules laid down by that scheme where they conflict with such requirements…The United States safe harbor scheme thus enables interference, by United States public authorities, with the fundamental rights of persons, and the commission decision does not refer either to the existence, in the United States, of rules intended to limit any such interference or to the existence of effective legal protection against the interference.”

The CJEU also ruled the safe harbor to be inadequate because it offers EU citizens no judicial means of redress in the U.S. and denies EU data protection authorities the power to review complaints challenging the validity of the data transfers to third countries, which the court ruled that the regulators can do even though the commission had declared the safe harbor scheme to be adequate.

Bot’s opinion stemmed from a June 2013 complaint filed by Max Schrems, a 27-year-old Austrian law graduate, who alleged that Facebook’s Irish subsidiary transferred data to the U.S. and that the social media site cooperated with the National Security Agency’s PRISM program, the existence of which, thanks to former NSA contractor Edward Snowden, is now public knowledge.  Snowden congratulated Schrems on Tuesday with this tweet.  Schrems praised the ruling Tuesday, saying that he hoped it would a “milestone when it comes to online privacy.”

At a press conference Tuesday, the European Commission said it welcomed the decision as a confirmation of the need of having robust data protection safeguards in place before transferring citizens’ data as well as of its efforts to revamp the safe harbor agreement, which have been pending for more than two years.

So, what do you think?  Do you conduct eDiscovery internationally?  Will this ruling affect how you do so?  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.

Samsung Doesn’t Have to Write a Check After All…Yet: eDiscovery Case Law

A couple of weeks ago, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our four part annual case law review.  On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung.  But, on Friday, Samsung received an emergency stay on that order.

According to Law 360 (subscription required), on Friday, the Federal Circuit on Friday granted a temporary stay of the judgment’s enforcement, after Samsung argued Sept. 21 in a notice of appeal that the appeals court’s mandate did not require immediate payment.

Samsung also moved for approval of a supersedeas bond in the amount of $600 million to secure payment of the judgment and asked for a temporary, 10-day stay of execution of the judgment to ensure that there is time to implement any changes to the bond the judge may require.  Samsung had argued in its emergency motion that the judgment shouldn’t have been entered, or that the appeals court should approve the supersedeas bond it put up in district court, according to filings in the case.

In a response brief that at times got a bit spicy, Apple retorted that the Federal Circuit’s May ruling affirming the $548 million judgment “made plain” that Samsung doesn’t deserve further delay, and urged the court to ignore Samsung’s efforts to “block the court from performing the most ministerial of tasks,” according to its filing.  “Apple does not file this motion lightly, but Samsung’s appeal truly is beyond the pale,” Apple argued in its response. “It should be brought to a swift end, rather than serve Samsung’s goals of imposing greater cost and delay on the court and Apple.”

Apple has won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts (ultimately reduced to the current $548 million), as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products (that is still being disputed in the courts, too).  This case has also had disputes over eDiscovery cost reimbursement and an adverse inference sanction for Samsung for failing to turn off “auto-delete” of emails after the case began.  And, clearly, there is more yet to come.

So, what do you think?  Have you been following Apple v. Samsung?    Will it ever end?  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.

EDRM Has a Twist on its Fall Workshop (and a Webinar Today!): eDiscovery Trends

Around this time of year, EDRM members (like me) expect to convene for our semi-annual visit to St. Paul for the mid-year meeting.  This year, EDRM has a twist on the mid-year meeting, which they’re now calling the “fall workshop”.  There’s also a webinar today!

As noted on their site, this year’s EDRM Fall Meeting will be hosted at Relativity Fest in Chicago (held at The Hilton Chicago in Chicago, Illinois) instead of the usual soirée in St. Paul.  If you’re an EDRM member, you can join us next week on Monday, October 12 for our keynote and workgroup, and on Tuesday, October 13 for two educational sessions.

On Monday, the workgroup will be conducted from 11:00 am to 5:45 pm and will consist of project updates, planning for projects and initiatives for the next six months and work on those projects and initiatives (to the extent time permits).

On Tuesday, for the first time ever at a workshop meeting, EDRM will be holding two educational sessions featuring EDRM members and materials.  They are:

  • Using the eMSAT-1 to Evaluate Internal Processes and Maximize Review Proficiency: This panel will provide strategies for implementing the eMSAT-1, and using the results to improve efficiencies and profits. The session will also focus on how the eMSAT-1 results can be used to design protocols for processing, review and analysis that allow companies to maximize use of review software. Tuesday from 9:00-10:00am.
  • Strategies for Calculating: Using the EDRM’s Data Calculator and Other Budgeting Tools to Estimate Costs: This panel will focus on various ways to approach budgeting E-Discovery projects. The panelists will share ideas and best practices regarding budgeting. They will show how using tools like the EDRM’s recently released Data Calculator can help to make once daunting budgeting a breeze. Tuesday from 10:15-11:15am.

As an EDRM member, you can attend the EDRM activities with the EDRM Pass for $550 (which includes Relativity Fest’s Sunday night reception) or the Relativity Fest Pass for $1,150, which gives you access to the EDRM activities and ALL of the Relativity Fest activities too.

Speaking of EDRM, they also have a webinar today – “A Practical Approach to Your in-house eDiscovery Collections,” – from 1:00 to 2:00 pm Central, sponsored by Pinpoint Labs.  This webinar will include a demonstration of how internal corporate IT managers, security professionals, or litigation support personnel can create in-house E-Discovery collections using Pinpoint Labs Harvester software. Learn how to design an automated self-collection kit for remote custodians, or deploy Enterprise wide stealth jobs that target discoverable files and emails for attorney review.

To register for today’s webinar, click here.  If you can’t make it today, but want to catch the recording of the webinar (or other past EDRM webinars), click here to see our previous blog post about EDRM webinars.

Not an EDRM member?  Why the hell not?!?  :o)  Here’s information on the cost to join – depending on who you are, it might be free!

So, what do you think?  Are you going to the EDRM Fall workshop?  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.

Redactions Aren’t Always as Straightforward as You Think: eDiscovery Best Practices

We were helping a recent client who had a lot of redactions in their production set, so I thought it made sense to revisit the topic here on this blog.

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information.  You may think that all you need to do is draw a black box over the affected text, but there’s actually a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted.  Here are a some redaction failures and how to avoid them.

Failure to “Burn” the Redaction into the Image

If the redaction isn’t “burned” into the image so that it cannot be removed, the redacted data can still be viewed.  Especially when your images are Adobe Acrobat PDF files, the most common mistake is to redact by obscuring the text by drawing a black box over the text or images you want redacted.  A simple “cut and paste” can remove the black box, revealing the redacted text.  Acrobat provides a redaction tool (for those editing the PDF there) to properly apply a redaction – it’s best to save the file to a new name after the redaction has been applied.

If you’re using a review application to manage the review, the application should ensure a “burned in” redaction for anything exported or printed, regardless of whether it lets you look at the redacted data within the application itself.  For example, CloudNine’s review platform provides a tool to enable the reviewer to draw a gray box over the text to be redacted so that text can still be viewed within the application.  However, if the file is exported or printed, that box gets “burned” in as a black or white box to completely obscure the redacted text.

Failing to Update Corresponding Text Files to Remove Redacted Text

Even if the image is handled properly, you can still disclose redacted text if you don’t make sure that the corresponding text file, whether extracted from the native file or generated via Optical Character Recognition (OCR), isn’t updated to remove the redacted text.  If you don’t update the corresponding text files, you’re allowing redacted text to slip through the production “back door”.  This happens more often than you might think.

Producing Un-Redacted Native Files

If you’re producing native files, you’ve hopefully discussed with opposing counsel how to handle native files that require redaction.  Typically, the approach is to convert those to an image format and redact the image.  Sometimes the parties agree to “redact” the native files themselves and produce those.  If so, as is the case with Adobe PDF files, there’s a right way and wrong way to redact native files.  Changing the text to white or the background to match the text color is not the same as redacting the text.  All you have to do is to revert back to the original formatting or simply highlight the affected area to see the redacted text.  Instead, you’ll want to agree on a procedure where the text is deleted or replaced with an equal amount of meaningless content (e.g., all “X”s) to preserve text flow and pagination (make sure track changes is off before redacting).  You may even want to agree to copy the entire content of a redacted document to a new file (to remove residual document composition information that might remain).  To see what I “redacted” up above, highlight it with your cursor.  :o)

Failing to Redact Metadata

You may redact content on the document that you produce separately as metadata, via a load or data file.  Failing to check the produced metadata for redacted content could enable that redacted content to slip through.  So, don’t forget to check and remove any sensitive data here, as well.

Quality Control (QC) Check before Producing

Generally, when producing documents with redactions, you should have a checklist that ensures that image redactions are “burned” in, that redacted native files (if produced natively) are properly redacted, and that corresponding text files and metadata have been checked to ensure that redacted data has been removed from those as well.  Otherwise, you could inadvertently produce privileged or confidential information via an inadequate process.

So, what do you think?  How do you handle redactions within your productions?  Do you have a process to QC check redactions before producing?  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.

Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, “good cause supports their discoverability”.  Also, after an analysis of cost-shifting factors found only one factor favored cost-shifting of the production of emails to the relator, Judge Cooke ordered the defendant to bear the cost of restoration and production.

Case Background

In this qui tam action under the False Claims Act, the relator filed a motion to compel production of email from the defendant for a “gap period” when the emails were stored on backup tapes, pursuant to the defendants’ email retention policy.  On the belief that the March 2011 tapes held the greatest number and scope of historical emails relevant to this litigation, the defendant had previously restored the March 2011 backup tapes via a third-party vendor and produced emails at a cost of over $100,000 (including attorney review and production).

The defendants objected, alleging that the emails were not reasonably accessible because of undue burden and cost, and stating that its IT department could not restore the gap-period emails in house; therefore, it would have to outsource the restoration work for a cost of $136,000 and a total cost of at least $248,000 after adding data processing and contract attorney review.

Judge’s Ruling

Noting that “[u]nder Rule 26(b)(2)(B), it is Renown’s burden to show that the gap-period emails are not reasonably accessible due to undue burden”, Judge Cooke stated that “As a preliminary matter, the plain language of Rule 26(b)(2)(B) instructs that “undue burden,” rather than the format of the ESI, is to guide the court’s analysis. Technological features of the storage media do enter the analysis, but only as they relate to the undue burden inquiry. Stated differently, undue burden is fact specific and no format is inaccessible per se.”

With that in mind, Judge Cooke concluded that “Renown has failed to show that the gap-period emails are not reasonably accessible because of undue burden. As described above, Renown has produced emails from the restored March 2011 backup tapes. In so doing, Renown has demonstrated that it is technologically feasible to restore and produce the gap-period emails… Accordingly, the court cannot fathom what burden accompanies third-party restoration. Renown has not stated that use of a vendor will nevertheless impose burdens – in terms of staff resources, delay of other critical IT projects, or inadequate attention to existing technology infrastructure.”

As for the defendants’ undue cost argument, Judge Cooke rejected “Renown’s argument that ‘cost’ under Rule 26(b)(2)(B) includes document review and storage”, determining that the “$136,000 figure for restoration is not an undue cost that renders the gap-period emails reasonably inaccessible”.

Next, Judge Cooke turned to the question of whether the relator had established good cause for the emails’ production by applying the seven factor balancing test of the costs and potential benefits of the requested discovery under Rule 26(b)(2)(B).  Determining that “five of the relevant factors favor relator, while two are neutral”, Judge Cooke found that “relator has carried her step-two burden of demonstrating good cause”, so “even were the gap-period emails reasonably inaccessible due to undue burden or undue cost, good cause supports their discoverability.”

Finally, Judge Cooke performed an examination of cost shifting, using the seven factor test used in Zubulake.  Noting that “[t]he weightiest factors, relevance and availability of alternatives, balance powerfully against cost shifting”, Judge Cooke ruled that “the costshifting factors require that Renown bear the cost of restoration.”  Therefore, she granted the relator’s motion to compel and denied the defendant’s motion for cost shifting, ordering the relator and defendant to meet and confer to discuss a schedule for production of the gap-period emails.

So, what do you think?  Should the defendant have been ordered to restore the emails from backup tape?  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.

When a Text File Doesn’t Match the Image or Native Excel File, What Do You Do?: eDiscovery Best Practices

Even when you’ve been in the business for 25+ years, you sometimes encounter situations you can’t explain (at least initially).  Here is a story about a document that I encountered yesterday that initially didn’t make sense to me.  Thankfully, I’m extremely curious and ultimately figured it out (with some help).  See if it will be obvious to you.

The Issue

In a document collection produced by the opposing party to our client (where we received agreed upon images, text files, native files and metadata), I was performing searches in our CloudNine review platform looking for documents related to a key investment account disputed between the two parties.  On one of the documents, I found a hit in the searchable text referencing key information related to the account that was noted by an accountant that we had not yet previously encountered.  This appeared to be an important document.

To get a better look at the document, I decided to look at the image that was provided.  That text entry was not there.

Since we had the produced Excel file, I downloaded a copy of it (from CloudNine) to take a look at it and the text did not appear to be present in the original native Excel file either.  When I performed a search for the accountant’s last name in the entire workbook, Excel retrieved no hits.

What?  How can that be?

Figuring It Out

My first thought was that there were hidden columns, rows or worksheets within the Excel file that were not being searched.  As it turned out, there was one hidden sheet (which I unhid), but repeating my search for the accountant’s last name in the entire workbook still retrieved no hits.

At this point, I’m wondering if the opposing party may have doctored the image and the Excel file, but forgot to doctor the produced extracted text?  You hate to believe the worst of people, but it happens.

Out of ideas, I took the issue to CloudNine’s production manager, Jesus Arellano.  After he looked at the Excel file and performed the same search (finding nothing, which made me feel better), he then decided to perform a text extract of the Excel file using LAW PreDiscovery® (which was later reproduced with our own CloudNine Discovery Client processing software).  We looked at the results in the text and, behold, there was the note from the accountant!

What the hell is going on out here?

Finally, The Answer

Taking another look at the Excel file, we finally noticed that little red triangle in the corner of some of the cells.  Excel comments.  Of course.

When I put the cursor over the cell, the comment popped up, revealing the note (that should have been a clue) from the accountant.  Excel comments aren’t normally displayed unless you put the cursor on the cell where the comment is contained (you can show all comments under the review tab, but hardly anybody ever does).  When the Excel is “printed” to an image file, only the main portion of the workbook is “printed”, not the hidden comments.  The same is true for other Microsoft Office applications, as well.  So, don’t expect to typically see the hidden comments in an image of an Excel workbook, Word document or other Office file.

As for searching the hidden comments in Excel, you can do so using Ctrl+F, you just have to make sure you change the “Look in” field to Comments to search those specifically (see the example below using my last name of Austin):

 

Perhaps, if it hadn’t been at the end of a long day, I would have caught it more quickly (that’s my excuse, anyway).  Nonetheless, it serves as an excellent example of how hidden metadata can contain important information.  Due to this find, resulting from the original text search I did, we identified an individual for our client to depose!

So, what do you think?  Have you ever encountered data important to a case in the hidden metadata of a file?   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.