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DESI Got Your Input, and Here It Is: eDiscovery Trends

Back in January, we discussed the Discovery of Electronically Stored Information (DESI, not to be confused with Desi Arnaz, pictured above) workshop and its call for papers describing research or practice for the DESI VI workshop that was held last week at the University of San Diego as part of the 15th International Conference on Artificial Intelligence & Law (ICAIL 2015). Now, links to those papers are available on their web site.

The DESI VI workshop aims to bring together researchers and practitioners to explore innovation and the development of best practices for application of search, classification, language processing, data management, visualization, and related techniques to institutional and organizational records in eDiscovery, information governance, public records access, and other legal settings. Ideally, the aim of the DESI workshop series has been to foster a continuing dialogue leading to the adoption of further best practice guidelines or standards in using machine learning, most notably in the eDiscovery space. Organizing committee members include Jason R. Baron of Drinker Biddle & Reath LLP and Douglas W. Oard of the University of Maryland.

The workshop included keynote addresses by Bennett Borden and Jeremy Pickens, a session regarding Topics in Information Governance moderated by Jason R. Baron, presentations of some of the “refereed” papers and other moderated discussions. Sounds like a very informative day!

As for the papers themselves, here is a list from the site with links to each paper:

Refereed Papers

Position Papers

If you’re interested in discovery of ESI, Information Governance and artificial intelligence, these papers are for you! Kudos to all of the authors who submitted them. Over the next few weeks, we plan to dive deeper into at least a few of them.

So, what do you think? Did you attend DESI VI? 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 Resolves Dispute Over Scope of Databases and Searches to be Performed: eDiscovery Case Law

After a week of reviewing previous cases we’ve covered this year with a couple of pop quizzes, we’re back in the saddle covering new cases…

In Willett, et al. v. Redflex Traffic Systems, Inc., No. 1:13-cv-1241-JCH/LAM (D.N.M. May 8, 2015), New Mexico District Judge Lourdes A. Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

Case Background

In this class action case, the plaintiffs alleged that the defendants engaged in nonconsensual automated calls to the plaintiffs on their cellular telephones in violation of the Telephone Consumer Protection Act in order to collect fines imposed by the City of Albuquerque for traffic violations and submitted requests for admission (RFAs) to the defendants to ask them to admit that they obtained the telephone numbers for specific plaintiffs from a skip tracing service. As for the plaintiffs’ document requests, the defendants produced an initial set of 19,000 Bates-labeled pages of documents in response to those requests, but the plaintiffs argued that the production was inadequate and moved to compel a larger production. In turn, the defendants filed their own motion, opposing the plaintiffs’ motion, arguing that the plaintiffs had refused to engage in a search term discussion regarding its database, which contained 1.6 terabytes of data.

The defendants also noted that the cost of processing their entire virtual server to enable more targeted searches would cost between $100,000 and $160,000, but if the parties were to agree to limit the data to be processed, such as by file type, keywords, and creation dates, the defendants might be able to perform those searches at a reasonable cost; otherwise, the cost could be shifted to the plaintiffs or split between the parties.

Judge’s Ruling

With regard to the defendants’ objections to the plaintiffs’ requests for admission, Judge Martinez found that “Defendants’ objections are without merit and should be overruled” and stated that “Defendants’ use of boilerplate, blanket objections are improper” and that the defendants’ “objections that these RFAs do not relate to the parties in this case are especially baffling since the requests specifically name the three Plaintiffs”.

As for the document requests, Judge Martinez ruled that she would “not order CWGP and Credit Control to conduct a search of the entire virtual server because it does not appear that that conducting a search of the entire 1.6 terabytes of data in the virtual server at a cost of $100,000 to $160,000 would be proportional to the likely benefit of such a search”. She also found that “limiting the search of the virtual server by file type, keywords, and creation dates, is a reasonable solution”. As a result, Judge Martinez ordered the defendants to produce a spreadsheet referred of file folders, with information for the files on their virtual server(s), the plaintiffs to provide the defendant with a reasonable list of search terms, limited to the relevant time frame, parties, and issues of this case and for the defendants to perform the searches specified by the plaintiffs within ten days of receiving the searches.

So, what do you think? Was the judge’s decision a reasonable compromise regarding the parties’ search disputes? 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.

Vacation Case Law Pop Quiz #2 Answers!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

Yesterday, we gave you a pop quiz for the second set of cases. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. Which case did the judge refer to as “Da Silva Moore Revisited”?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

2. In which case did the court grant the plaintiff’s Motion to Quash the defendant’s subpoena of text messages?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

3. In which case did the court uphold the award by the Clerk of the Court of over $57,000 in taxable costs?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

4. Which case(s) cited the Da Silva Moore case?

A. Rio Tinto Plc v. Vale S.A.

B. In Re: Lithium Ion Batteries Antitrust Litigation

C. Both cited Da Silva Moore

D. Neither cited Da Silva Moore

5. In which case was the request for spoliation sanctions against the defendant for failure to preserve video footage not only denied, but the defendant was granted summary judgment in the case?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

6. In which case did the appeals court affirm the District Court’s approval of a $6,300+ bill of costs which included synchronization of deposition videos and imaging of hard drives?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

7. In which case did the court rule that the duty to preserve for the Australian defendant did not begin until the complaint was filed in US courts?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

8. In which case was the defendant sanctioned for discarding a relevant computer?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

9. In which case did the court rule that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

10. In which case was the defendant sanctioned and ordered to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

Vacation Case Law Pop Quiz #2!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers to this second vacation case law pop quiz for those who don’t know and didn’t look them up.

1. Which case did the judge refer to as “Da Silva Moore Revisited”?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

2. In which case did the court grant the plaintiff’s Motion to Quash the defendant’s subpoena of text messages?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

3. In which case did the court uphold the award by the Clerk of the Court of over $57,000 in taxable costs?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

4. Which case(s) cited the Da Silva Moore case?

A. Rio Tinto Plc v. Vale S.A.

B. In Re: Lithium Ion Batteries Antitrust Litigation

C. Both cited Da Silva Moore

D. Neither cited Da Silva Moore

5. In which case was the request for spoliation sanctions against the defendant for failure to preserve video footage not only denied, but the defendant was granted summary judgment in the case?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

6. In which case did the appeals court affirm the District Court’s approval of a $6,300+ bill of costs which included synchronization of deposition videos and imaging of hard drives?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

7. In which case did the court rule that the duty to preserve for the Australian defendant did not begin until the complaint was filed in US courts?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

8. In which case was the defendant sanctioned for discarding a relevant computer?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

9. In which case did the court rule that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

10. In which case was the defendant sanctioned and ordered to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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 Collecting Emails, Make Sure You Have a Complete Outlook: eDiscovery Best Practices

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed. Today’s post takes a look back at Outlook files and the different forms they take. How many do you know?

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

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

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

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

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

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

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

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

So, what do you think? Are you searching all of these file types for responsive Outlook emails? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.

Vacation Case Law Pop Quiz #1 Answers!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

Yesterday, we gave you a pop quiz for the first set of cases. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. In which case did the judge state that the defendant’s “discovery misconduct calls for serious measures”?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

2. In which case did the court order the defendant to submit a further declaration supporting its claimed eDiscovery costs?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

3. In which case was a request for sanctions denied by the court?

A. James v. National Financial LLC

B. Ablan v. Bank of America

C. Federico et al. v. Lincoln Military Housing LLC, et al.

D. Requests for sanctions were granted in all of the above cases

4. In which case did the court decline to sanction a party for failing to produce or make available documents held by the plaintiff’s outside vendor?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

5. Which case involved allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

6. In which case did the judge issue an order titled “Order on One Millionth Discovery Dispute”?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

7. In which case did the court award attorney fees requested by the defendant to compensate for filing a motion to compel the plaintiff to produce documents?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

8. In which case was the plaintiff’s motion to compel the defendants to produce ESI again in native format denied by the court?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

9. In which case did the judge state that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

10. In which case did the appeals court reverse an award for attorney fees due to ESI requests that the lower court deemed as “clearly frivolous”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

Vacation Case Law Pop Quiz #1!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers to this first vacation case law pop quiz for those who don’t know and didn’t look them up.

1. In which case did the judge state that the defendant’s “discovery misconduct calls for serious measures”?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

2. In which case did the court order the defendant to submit a further declaration supporting its claimed eDiscovery costs?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

3. In which case was a request for sanctions denied by the court?

A. James v. National Financial LLC

B. Ablan v. Bank of America

C. Federico et al. v. Lincoln Military Housing LLC, et al.

D. Requests for sanctions were granted in all of the above cases

4. In which case did the court decline to sanction a party for failing to produce or make available documents held by the plaintiff’s outside vendor?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

5. Which case involved allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

6. In which case did the judge issue an order titled “Order on One Millionth Discovery Dispute”?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

7. In which case did the court award attorney fees requested by the defendant to compensate for filing a motion to compel the plaintiff to produce documents?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

8. In which case was the plaintiff’s motion to compel the defendants to produce ESI again in native format denied by the court?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

9. In which case did the judge state that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

10. In which case did the appeals court reverse an award for attorney fees due to ESI requests that the lower court deemed as “clearly frivolous”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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 Sanctions Plaintiff for Failing to Preserve Audio Recording: eDiscovery Case Law

In Compass Bank v. Morris Cerullo World Evangelism, Civil No. 13-CV-0654-BAS(WVG)(S.D. Cal. May 8, 2015), California Magistrate Judge William V. Gallo ruled that the plaintiff “wilfully engaged in the spoliation of relevant evidence”, and “has demonstrated a pattern of recalcitrant behavior during discovery in this litigation” and awarded an adverse inference jury instruction sanction against the plaintiff as well as defendant’s attorney fees and costs.

Case Background

During discovery in this case, the defendant issued two sets of document requests (in April and October 2014, respectively) which included all audio recordings relating to a letter of credit at the center of the dispute, allegedly issued on behalf of the plaintiff by its former branch manager. The plaintiff did not produce any audio recordings during discovery. Then, on February 12 of this year, the defendant took the deposition of the plaintiff’s Rule 30(b)(6) witness, during which she stated that during a phone call with the former branch manager in February of 2013, he admitted that he issued the letter of credit. She also testified that the plaintiff automatically records all of her phone calls in the regular course of business, and automatically records the calls of all its Trade Service Division officers. During her deposition, the plaintiff’s Rule 30(b)(6) witness stated, “our lines in international trade services and the letter of credit are recorded 24/7.”

The defendant immediately requested that the plaintiff produce the audio recording of the subject call. In a letter dated March 6, 2015, the plaintiff informed the defendant that it could not locate any such recording. The defendant subsequently filed a motion for sanctions, requesting either terminating or adverse inference jury instruction sanctions against the plaintiff, presenting evidence that the plaintiff had only searched one of the witness’s work phone numbers, when she actually had two phone numbers.

Judge’s Ruling

Because one of the main disputes in this case is whether the plaintiff issued the letter of credit and the audio recording seemed to verify that, Judge Gallo ruled that “the relevance of this evidence cannot reasonably be disputed”. He also ruled that the plaintiff had a duty to preserve the recording, noting that even though “the subject call occurred prior to Plaintiff filing the Complaint, Plaintiff has previously argued to this Court that it reasonably anticipated litigation regarding the letter of credit in February of 2013.”

With regard to whether the evidence was lost or destroyed with a culpable state of mind, based on the fact that “no evidence has been presented to the Court that Plaintiff initiated a litigation hold” and that “not only did Plaintiff not produce the recording of the subject call or any other calls, it utterly failed to even disclose that such calls were recorded”, Judge Gallo found that “Plaintiff wilfully failed to produce the recording in response to discovery requests, wilfully failed to conduct a diligent search in an effort to locate the recording, and wilfully withheld the recording from Defendant”. Judge Gallo also noted that the plaintiff “has a history of being recalcitrant and failing to produce relevant discovery” for failing to produce an Interview Summary of the former branch manager under the work product doctrine that ultimately proved to be clearly not protected.

As a result, Judge Gallo, while declining to award terminating sanctions, awarded a “less drastic” adverse inference jury instruction sanction against the plaintiff as well as ordered the plaintiff to reimburse defendant’s attorney fees and costs to be determined after a review the defendant’s detailed time calculations and declaration(s).

So, what do you think? Do you agree that the audio recording was lost or destroyed with a culpable state of mind? 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.

Want to Save Review Costs? Be the Master of Your Domain(s): eDiscovery Best Practices

Yesterday, we discussed how some BigLaw firms mark-up reviewer billing rates two to three times (or more) when billing their clients. But, even if that’s not the case, review is still by far the most expensive phase of eDiscovery. One way to minimize those costs is to identify documents that need little or no review and domain categorization can help in identifying those documents.

Even though the types of electronically stored information (ESI) continue to be more diverse, with social media and other sources of ESI becoming more prominent, email is still generally the biggest component of most ESI collections and each participant in an email communication belongs to a domain associated with the email server that manages their email.

Several review platforms, including (shameless plug warning!) our CloudNine™ platform (see example above using the ever so ubiquitous Enron data set), support domain categorization by providing a list of domains associated with the ESI collection being reviewed, with a count for each domain that appears in emails in the collection. Domain categorization provides several benefits when reviewing your collection by identifying groups of documents, such as:

  • Non-Responsive ESI: Let’s face it, even if we cull the collection based on search terms, certain non-responsive documents will get through. For example, if custodians have received fantasy football emails from ESPN.com or weekly business newsletters from Fortune.com and those slip through the search criteria, that can add costs to review clearly non-responsive ESI. Instead, with domain categorization, domains in the list that are obviously non-responsive to the case can be quickly identified and all messages associated with those domains (and their attachments) can be “group-tagged” as non-responsive.
  • Potentially Privileged ESI: If there are any emails associated with outside counsel’s domain, they could obviously represent attorney work product or attorney-client privileged communications (or both). Domain categorization is a quick way to “group-tag” them as potentially privileged, so that they can be reviewed for privilege and dealt with quickly and effectively.
  • Issue Identification: Messages associated with certain parties might be related to specific issues (e.g., an alleged design flaw of a specific subcontractor’s product), so domain categorization can isolate those messages more quickly and get them prioritized for review.

In essence, domain categorization enables you to put groups of documents into “buckets” to either eliminate them from review entirely or to classify them for a specific workflow for review, saving time and cost during the review process. Time is money!

So, what do you think? Does your review platform provide a mechanism for domain categorization? If so, do you use it to help manage the review process and control costs? 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.

This Firm Marked Up Reviewer Billings Over 500 Percent and that’s Not the Worst Part: eDiscovery Trends

Remember when we asked the question whether a blended document review rate of $466 per hour is excessive? Many of you weighed in on that one and that post is still our most viewed of all time. Marking up the billing rate for reviewers over 500 percent may or may not also be unacceptable, depending on who you talk to. But, everyone agrees that billing more hours than you actually worked is a bad thing.

According to a new article by Gina Passarella in The Legal Intelligencer (Are Contract Attorney Markups Of Any Concern to Clients?), a former Drinker Biddle & Reath contract attorney received a two-year suspension last week for overbilling a client on document review. The attorney worked for the firm from 2011 through 2012, where he was paid $40 an hour and charged out to a client at $245 an hour.

If you’re whipping out your calculator, I’ll save you the trouble – that’s a 513 percent markup (rounded up).

But, that’s not why he was suspended. It turns out that the attorney logged more time into the firm’s time accounting system than he was logged into the firm’s eDiscovery system and had overbilled for the 12 months he was at the firm. Drinker Biddle terminated the attorney within days of discovering the discrepancy.

But, according to Passarella’s article, “the legal community’s reaction focused not so much on the behavior as on the lawyer’s billing rate… Some have described a 513 percent markup as ‘stratospheric’ while others have said a firm’s internal profitability is none of the client’s business as long as the client feels it is getting the perceived value from the business transaction.”

Drinker Biddle chairman Andrew C. Kassner defended the markup, citing overhead costs and said that the firm works hard to ensure value for the client and provided a lower-cost option to the client by using a contract lawyer rather than an associate.

Unlike Mark Antony (the Roman emperor, not the singer), I don’t come to bury Drinker Biddle in this article, many law firms mark review up considerably. And, as Passarella notes, “Drinker Biddle was certainly an early adopter of the value proposition espoused by the Association of Corporate Counsel and others, becoming one of the first law firms to create a chief value officer position in 2010 and forming an associate training program post-recession that didn’t charge clients for the first four months of a first-year’s time.”

However, Passarella’s article does quote three individuals who questioned the current billing model: 1) a former general counsel who, while he was in-house, “decoupled” the use of contract attorneys from outside counsel, 2) a former BigLaw attorney who became disenchanted with the large-firm business model and created his own firm which focuses on providing better value to clients, and 3) an Altman Weil consultant who questioned the $245 value for document review, noting that “if it were really important they wouldn’t be using a $40-an-hour lawyer”. Perhaps we should revisit the discussion as to whether it’s time to ditch the per hour model for document review?

As for the overbilling, Kassner said the firm paid back the client all that it was charged for the overbilled time as well as for any time the attorney charged on the matter.

So, what do you think? Is it time to ditch the per hour model for document review? Or, is marking up reviewer billing two to three times (or more) an acceptable practice? 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.