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eDiscoveryDaily

Keyword Searching Isn’t Dead, If It’s Done Correctly: eDiscovery Best Practices

In the latest post of the Advanced Discovery blog, Tom O’Connor (who is an industry thought leader and has been a thought leader interviewee on this blog several times) posed an interesting question: Is Keyword Searching Dead?

In his post, Tom recapped the discussion of a session with the same name at the recent Today’s General Counsel Institute in New York City where Tom was a co-moderator of the session along with Maura Grossman, a recognized Technology Assisted Review (TAR) expert, who was recently appointed as Special Master in the Rio Tinto case.  Tom then went on to cover some of the arguments for and against keyword searching as discussed by the panelists and participants in the session, while also noting that numerous polls and client surveys show that the majority of people are NOT using TAR today.  So, they must be using keyword searching, right?

Should they be?  Is there still room for keyword searching in today’s eDiscovery landscape, given the advances that have been made in recent years in TAR technology?

There is, if it’s done correctly.  Tom quotes Maura in the article as stating that “TAR is a process, not a product.”  The same could be said for keyword searching.  If the process is flawed within which the keyword searches are being performed, you could either retrieve way more documents to be reviewed than necessary and drive up eDiscovery costs or leave yourself open to challenges in the courtroom regarding your approach.  Many lawyers at corporations and law firms identify search terms to be performed (and, in many cases, agree on those terms with opposing counsel) without any testing done to confirm the validity of those terms.

Way back in the first few months of this blog (over four years ago), I advocated an approach to searching that I called “STARR” – Search, Test, Analyze, Revise (if necessary) and Repeat (also, if necessary).  With an effective platform (using advanced search capabilities such as “fuzzy”, wildcard, synonym and proximity searching) and knowledge and experience of that platform and also knowledge of search best practices, you can start with a well-planned search that can be confirmed or adjusted using the “STARR” approach.

And, even when you’ve been searching databases for as long as I have (decades now), an effective process is key because you never know what you will find until you test the results.  The favorite example that I have used over recent years (and walked through in this earlier post) is the example where I was doing work for a petroleum (oil) company looking for documents that related to “oil rights” and retrieved almost every published and copyrighted document in the oil company with a search of “oil AND rights”.  Why?  Because almost every published and copyrighted document in the oil company had the phrase “All Rights Reserved”.  Testing and an iterative process eventually enabled me to find the search that offered the best balance of recall and precision.

Like TAR, keyword searching is a process, not a product.  And, you can quote me on that.  (-:

So, what do you think?  Is keyword searching dead?  And, 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 Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law

In Charvat et. al. v. Valente et. al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Case Background

In this case about consumer complaints regarding alleged improper telemarketing activities by a company affiliated with Carnival Corporation, the defendant investigated the allegations and produced most of the documents relating to its investigation.  However, the defendant withheld 14 documents as privileged, because they “relate specifically to legal advice sought by Carnival from outside counsel”.  Judge Rowland conducted an in camera review of the documents described on the Privilege Log and ruled that the defendant must produce two of the documents, but determined that “[a]ll other documents on the Privilege Log are protected from disclosure by the attorney-client privilege and the work product doctrine.”

The plaintiff also requested spoliation sanctions or instructions given the defendant’s admitted destruction of computer files belonging to two departed employees.  The defendant acknowledged deleting the computer files belonging to the two departed employees consistent with its routine business practices of deleting files 30 days following termination of employment. The two employees left in September and October 2011 and the defendant’s investigation into the consumer complaints concluded in July 2011, so the defendant asserted that “at the time of their respective departures from the company, Carnival had completed its investigation of RMG and did not anticipate any imminent litigation against the travel agency.”  The plaintiff countered by arguing that the defendant could not contend that certain documents authored by the two departed employees were “work product” created in “anticipation of litigation” while also asserting that it routinely deleted their computer files because it did not “anticipate any imminent litigation.”

Judge’s Ruling

Noting that “work product is exempt from mandatory disclosure regardless of the status of the anticipated litigation” and “work-product protection continues even after the prospect of anticipated litigation disappears”, Judge Rowland stated that “although Carnival was free to delete Morales’s and Hernandez’s files in September and October 2011 because there was no reasonably foreseeable litigation at that time, their emails prepared as part of the RMG investigation remain privileged.”  She also then stated that “[i]n any event, Plaintiff has not provided any evidence that Carnival acted in bad faith”, determining that “[t]here is no evidence that Carnival’s routine deletion of former employees’ files in accordance with an established document retention policy was done for the purpose of hiding adverse information.”  As a result, the plaintiff’s request for sanctions was denied.

So, what do you think?  Should the defendant have been able to delete the files of the departed employees?  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.

Potential Data Breaches Still Happen the Old Fashioned Way, Too: eDiscovery Trends

Whether you’re a website that promotes cheating on your spouse, a first place major league baseball team (yay!) or a major health insurance provider, data breaches can happen to you.  Potentially, they can happen to law firms too, even the old fashioned way.

According to SC Magazine (Personal data on laptop stolen from attorney with California law firm, written by Adam Greenberg), California-based law firm Atkinson, Andelson, Loya, Ruud & Romo is notifying an undisclosed number of individuals that a personal laptop computer owned by an attorney from the firm was stolen, and their personal information may have been compromised.

According to the article, the laptop contained names, addresses, telephone numbers, Social Security numbers, and possibly certain financial information or medical records for those individuals.  The theft occurred on April 23 while the attorney was a passenger on the MTS Trolley in downtown San Diego, and was reported to the San Diego police department on April 24. The laptop has not been recovered.  Good luck recovering it at this point.

As the article notes, all potentially impacted individuals are being notified via a four page notification letter, which states “We have no reason to believe that the laptop was stolen for the information it contained,” and also “We also have no information indicating that this information has been accessed or used in any way.”   The recipients of the notification letter have been offered a free year of identity theft protection and credit monitoring services.

Sharon Nelson of the excellent Ride the Lightning blog surmised last week in her blog that, because the firm is notifying the individuals of the theft, the laptop was not encrypted.  That may be true, or it may be that the firm is just being cautious.  I can relate to being cautious and having had my own business laptop stolen last year, I can also feel their pain.  Even though my laptop was fully encrypted and I don’t store client data on my laptop, I still felt compelled to change every password I owned and watched my accounts like a hawk for some time to make sure that my financial data was not compromised.  It’s extremely unsettling.  Like the law firm, we reported the theft (my colleague’s notepad was also stolen), but, of course, nothing was ever recovered.

Nonetheless, as traumatic as that was, it was just a stolen laptop (and a few personal effects in the laptop bag) in the end.  I was glad that the laptop was encrypted and it kept the situation from being WAY worse.

Encrypt your laptop.  It only takes a moment to become a victim of a data breach, the old fashioned way.

So, what do you think?  Have you ever had a laptop stolen?  Was it encrypted?  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.

Apple’s Motion to Seal eDiscovery Vendor Invoice Line Items Granted by Court: eDiscovery Case Law

In GPNE Corp. v. Apple, Inc., 12-CV-02885-LHK (N.D. Cal. July 16, 2015), California District Judge Lucy H. Koh granted the defendant’s motion to file under seal specific line items from third-party e-discovery vendor invoices that were submitted in support of its bill of costs.

The defendant had sought to file the portions under seal because they stated that the invoices contained “sensitive and confidential information regarding the costs Apple incurred in defending against the patent infringement claims”, stating that they “reveal sensitive and confidential information regarding Apple’s financial relationship with its e-discovery vendor” and the information “could be used by Apple competitors to its disadvantage, as disclosure of the redacted information will reveal confidential pricing strategy and Apple’s financial relationship with its e-discovery vendor.”

Judge Koh started by observing that “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents’…Accordingly, when considering a sealing request, ‘a strong presumption in favor of access is the starting point.’”  But, she also noted that “Records attached to nondispositive motions are not subject to the strong presumption of access…Because the documents attached to nondispositive motions ‘are often unrelated, or only tangentially related, to the underlying cause of action,’ parties moving to seal must meet the lower ‘good cause’ standard of Rule 26(c) of the Federal Rules of Civil Procedure…The ‘good cause’ standard requires a ‘particularized showing’ that ‘specific prejudice or harm will result’ if the information is disclosed.”

Judge Koh also stated that “Pursuant to Rule 26(c), a trial court has broad discretion to permit sealing of court documents for, inter alia, the protection of “a trade secret or other confidential research, development, or commercial information.”  Referring to the defendant’s motion as “nondispositive”, Judge Koh applied “the ‘good cause’ standard to Defendant’s request” and found that “Defendant has made a ‘particularized showing’ that ‘specific prejudice or harm will result’ if certain confidential terms of Defendant’s financial relationship with its e-discovery vendor are made public.”  Therefore, Judge Koh granted the defendant’s motion to seal as to the proposed redactions in the exhibit.

So, what do you think?  Should eDiscovery vendor pricing be considered confidential?  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.

Do You Have a Favorite Law Blog? If So, Now is the Time To Recognize it!: eDiscovery Trends

Once again, ABA Journal is working on their annual list of the 100 best legal blogs, and they would like your advice on which blogs you think they should include.  If you have a favorite law blog (or “blawg”, get it?), now is the time to nominate it for recognition in the ABA Journal Annual Blawg 100.

On their Blawg 100 Amici page, you can complete the form to identify yourself, your employer or law school, your city and email address, the URL of the blog you wish to nominate, a link to a recent post from the blog and a brief (up to 500 characters) description as to why you’re a fan of the “blawg”.  You’re also asked whether you know the “blawgger” personally (and admonished to “be honest”), whether ABA Journal can use your name and comment in their coverage and, if you follow the blogger on Twitter, describe what makes him/her stand out.  You can nominate more than one “blawg”.

ABA Journal notes that they discourage submissions (which they call “amici”) from:

  • Bloggers who nominate their own blogs or nominate blogs to which they have previously contributed posts.
  • Employees of law firms who nominate blogs written by their co-workers.
  • Public relations professionals in the employ of lawyers or law firms who nominate their clients’ blogs.
  • Pairs of bloggers who have clearly entered into a quid pro quo agreement to nominate each other.

Friend-of-the-blawg briefs (i.e., to fill and submit the form) are due by no later than 11:59 p.m. CT on Sunday, Aug. 16, 2015 to include your nomination.

If you have enjoyed reading eDiscovery Daily over the past year 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 other excellent legal technology blogs out there.  Here are a few of our favorites.  Feel free to nominate them too.  🙂

For compilations of eDiscovery news and analysis, I’d also like to recognize PinHawk Law Technology Daily Digest and Complex Discovery as excellent sources for eDiscovery information.

Our hats are off to all of those who provide eDiscovery news and analysis to the industry!  Again, if you would like to nominate any of the blogs (including, of course, eDiscoveryDaily), click here.  Deadline is August 16.

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.

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.

Pitfalls Associated with Self-Collection of Data by Custodians: eDiscovery Best Practices

In a prior article, we covered the Burd v. Ford Motor Co. case where the court granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology involving self-collection of responsive documents by custodians based on search instructions provided by counsel.  In light of that case and a recent client experience of mine, I thought it would be appropriate to revisit this topic that we addressed a couple of years ago.

I’ve worked with a number of attorneys who have turned over the collection of potentially responsive files to the individual custodians of those files, or to someone in the organization responsible for collecting those files (typically, an IT person).  Self-collection by custodians, unless managed closely, can be a wildly inconsistent process (at best).  In some cases, those attorneys have instructed those individuals to perform various searches to turn “self-collection” into “self-culling”.  Self-culling can cause at least two issues:

  1. You have to go back to the custodians and repeat the process if additional search terms are identified.
  2. Potentially responsive image-only files will be missed with self-culling.

It’s not uncommon for additional searches to be required over the course of a case, even when search terms are agreed to by the parties up front (search terms are frequently renegotiated), so the self-culling process has to be repeated when new or modified terms are identified.

It’s also common to have a number of image-only files within any collection, especially if the custodians frequently scan executed documents or use fax software to receive documents from other parties.  In some cases, image-only PDF or TIFF files can often make up as much as 20% of the collection.  When custodians are asked to perform “self-culling” by performing their own searches of their data, these files will typically be missed.

For these reasons, I usually advise against self-culling by custodians in litigation.  I also typically don’t recommend that the organization’s internal IT department perform self-culling either, unless they have the capability to process that data to identify image-only files and perform Optical Character Recognition (OCR) on them to capture text.  If your IT department doesn’t have the capabilities and experience to do so (which includes a well-documented process and chain of custody), it’s generally best to collect all potentially responsive files from the custodians and turn them over to a qualified eDiscovery provider to perform the culling.  Most qualified eDiscovery providers, including (shameless plug warning!) CloudNine™, perform OCR as needed to include image-only files in the resulting potentially responsive document set before culling.  With the full data set available, there is also no need to go back to the custodians to perform additional searches to collect additional data (unless, of course, the case requires supplemental productions).


Most organizations that have their custodians perform self-collection of files for eDiscovery probably don’t expect that they will have to explain that process to the court.  Ford sure didn’t.  If your organization plans to have its custodians self-collect, you’d better be prepared to explain that process, which includes discussing your approach for handling image-only files.

So, what do you think?  Do you self-collect data for discovery purposes?  If so, how do you account for image-only files?  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.

Should Contract Review Attorneys Receive Overtime Pay?: eDiscovery Trends

Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.

According to a story in The Posse List (Contract attorney lawsuit against Skadden Arps can proceed, appeals court says; case could enable temporary lawyers hired for routine document review to earn extra wages), the Second U.S. Circuit Court of Appeals vacated the judgment of the district court and remanded the matter for further proceedings, ruling that a lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions can proceed.

The plaintiff, David Lola, on behalf of himself and all others similarly situated, filed the case as a Fair Labor Standards Act collective action against Skadden, Arps and Tower Legal Staffing.  He alleged that, beginning in April 2012, he worked for the defendants for fifteen months in North Carolina, working 45 to 55 hours per week and was paid $25 per hour. He conducted document review for Skadden in connection with a multi-district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either North Carolina or the Northern District of Ohio.

According to the ruling issued by the appellate court, “Lola alleged that his work was closely supervised by the Defendants, and his entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.’  Lola also alleged that Defendants provided him with the documents he reviewed, the search terms he was to use in connection with those documents, and the procedures he was to follow if the search terms appeared.

The defendants moved to dismiss the complaint, arguing that Lola was exempt from FLSA’s overtime rules because he was a licensed attorney engaged in the practice of law. The district court granted the motion, finding (1) state, not federal, standards applied in determining whether an attorney was practicing law under FLSA; (2) North Carolina had the greatest interest in the outcome of the litigation, thus North Carolina’s law should apply; and (3) Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an exempt employee under FLSA.”

While the appellate court agreed with the first two points, it disagreed with the third.  In vacating the judgment of the district court and remanding the matter for further proceedings, the appellate court stated in its ruling:

“The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided.”

A link to the appeals court ruling, also available in the article in The Posse List, can be found here.

So, what do you think?  Are document reviewers practicing law?  If not, should they be entitled to overtime pay?  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.

“Da Silva Moore Revisited” Will Be Visited by a Newly Appointed Special Master: eDiscovery Case Law

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Jul. 15, 2015), New York Magistrate Judge Andrew J. Peck, at the request of the defendant, entered an Order appointing Maura Grossman as a special master in this case to assist with issues concerning Technology-Assisted Review (TAR).

Back in March (as covered here on this blog), Judge Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, titling his opinion “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) — Da Silva Moore Revisited”.  Alas, as some unresolved issues remained regarding the parties’ TAR-based productions, Judge Peck decided to prepare the order appointing Grossman as special master for the case.  Grossman, of course, is a recognized TAR expert, who (along with Gordon Cormack) wrote Technology-Assisted Review in E-Discovery can be More Effective and More Efficient that Exhaustive Manual Review and also the Grossman-Cormack Glossary of Technology Assisted Review (covered on our blog here).

While noting that it has “no objection to Ms. Grossman’s qualifications”, the plaintiff issued several objections to the appointment, including:

  • The defendant should have agreed much earlier to appointment of a special master: Judge Peck’s response was that “The Court certainly agrees, but as the saying goes, better late than never. There still are issues regarding the parties’ TAR-based productions (including an unresolved issue raised at the most recent conference) about which Ms. Grossman’s expertise will be helpful to the parties and to the Court.”
  • The plaintiff stated a “fear that [Ms. Grossman’s] appointment today will only cause the parties to revisit, rehash, and reargue settled issues”: Judge Peck stated that “the Court will not allow that to happen. As I have stated before, the standard for TAR is not perfection (nor of using the best practices that Ms. Grossman might use in her own firm’s work), but rather what is reasonable and proportional under the circumstances. The same standard will be applied by the special master.”
  • One of the defendant’s lawyers had three conversations with Ms. Grossman about TAR issues: Judge Peck noted that one contact in connection with The Sedona Conference “should or does prevent Ms. Grossman from serving as special master”, and noted that, in the other two, the plaintiff “does not suggest that Ms. Grossman did anything improper in responding to counsel’s question, and Ms. Grossman has made clear that she sees no reason why she cannot serve as a neutral special master”, agreeing with that statement.

Judge Peck did agree with the plaintiff on allocation of the special master’s fees, stating that the defendant’s “propsal [sic] is inconsistent with this Court’s stated requirement in this case that whoever agreed to appointment of a special master would have to agree to pay, subject to the Court reallocating costs if warranted”.

So, what do you think?  Was the appointment of a special master (albeit an eminently qualified one) appropriate at this stage of 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.

EDRM Participant Profiles: eDiscovery Trends

When EDRM announced eDiscovery Daily as an Education partner back in March (we covered it here), EDRM agreed to publish our daily posts on the EDRM site and it has been great to publish our content via the leading standards organization for the eDiscovery market!  However, another part of our agreement was for eDiscovery Daily to provide exclusive content to EDRM, including articles sharing real-life examples of organizations using EDRM resources in their own eDiscovery workflows.  Now, our first participant profile is available on the EDRM site and we’re looking for other organizations to share their EDRM experiences!

These profiles are designed to illustrate how participants and their organizations contribute to the success of EDRM as well as how those organizations use EDRM resources in their own businesses.

Our first EDRM Participant Profile Interview is with Seth Magaw. Seth currently serves Ricoh Americas Corporation as Director of eDiscovery Client Services within Ricoh Legal. He is responsible for the development and implementation of service delivery for Ricoh’s electronic discovery hosting services and enhancing the organization’s overall standing in the litigation support industry.  During Seth’s ten years at Ricoh, he has handled many eDiscovery projects, including large forensic collections, ESI and hosting projects. Prior to his current role, Seth has also served Ricoh Legal as Regional Digital Support Project Manager and Digital Sales Analyst.

Ricoh is a global technology and services company and has been a powerful partner to the legal community for more than two decades, earning the trust of clients through experience, expertise and long-term relationships.

In my interview with Seth, he provided some excellent examples of Ricoh’s participation and contributions to EDRM resources and also discussed several of the instances where Ricoh has applied EDRM models and standards within its organization.  Hopefully, the interview with Seth (as well as additional interviews with other EDRM participants to come) will help educate eDiscovery professionals as to how they can use EDRM resources within their own organizations.

The link to Seth’s interview on the EDRM site is here.  I hope you will check it out.

If you are a participant of EDRM and would like to be profiled (or would like to recommend a current EDRM participant to be profiled), please contact George Socha (george@edrm.net), Tom Gelbmann (tom@edrm.net) or me (daustin@cloudnincloudnine.comm) to arrange a profile interview with me to be published on the EDRM site.  We would love for you to share your experiences with EDRM and its resources!

So, what do you think?  Are you an EDRM member and want your organization to be profiled?  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.

“Quality is Job 1” at Ford, Except When it Comes to Self-Collection of Documents: eDiscovery Case Law

In Burd v. Ford Motor Co., Case No. 3:13-cv-20976 (S.D. W. Va. July 8, 2015), West Virginia Magistrate Judge Cheryl A. Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as “premature” on that request.

Case Background

In these cases involving alleged events of sudden unintended acceleration in certain Ford vehicles, the plaintiffs, in December 2014, requested regularly scheduled discovery conferences in an effort to expedite what they anticipated would be voluminous discovery.

At the February 10, 2015 conference, the plaintiffs raised concerns regarding the reasonableness of the searches being performed by the defendant in its effort to respond to plaintiffs’ requests for documents.  While conceding that it had not produced e-mail in certain instances, because it did not understand that the request sought e-mail communications, the defendant did indicate that it had conducted a “sweep” of the emails of ten to twenty key custodians.  That “sweep” was described as a “self-selection” process being conducted by the individual employees, who had each been given information about the plaintiffs’ claims, as well as suggested search terms.  However, excerpts of deposition transcripts of defendant’s witnesses provided by the plaintiff revealed that some of those key employees performed limited searches or no searches at all.

Also, the Court ordered the parties to meet, confer, and agree on search terms.  The defendant objected to sharing its search terms, contending that the plaintiff sought improper “discovery on discovery,” and deemed the plaintiff’s request as “overly burdensome” given that each custodian developed their own search terms after discussing the case with counsel.

Judge’s Ruling

Noting that the defendant’s “generic objections to ‘discovery on discovery’ and ‘non-merits’ discovery are outmoded and unpersuasive”, Judge Eifert stated, as follows:

“Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford’s document search, retrieval, and production. Although Ford deflects these concerns with frequent complaints of overly broad and burdensome requests, it has failed to supply any detailed information to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive materials. At the same time that Ford acknowledges the existence of variations in the search terms and processes used by its custodians, along with limitations in some of the searches, it refuses to expressly state the nature of the variations and limitations, instead asserting work product protection. Ford has cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates ‘the principles of an open, transparent discovery process.’”

Judge Eifert also rejected the defendant’s claim of work product protection regarding the search terms, stating that “[u]ndoubtedly, the search terms used by the custodians and the names of the custodians that ran searches can be disclosed without revealing the substance of discussions with counsel.”  As a result, Judge Eifert granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology, but did not rule on the issue of whether the defendant had a reasonable collection process or adequate production, denying the plaintiff’s motion as premature on that request.

So, what do you think?  Was the order for a deposition of a Rule 30(b)(6) witness the next appropriate step?  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.