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eDiscoveryDaily

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation: eDiscovery Case Law

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

“Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.”

This case arose from the defendants’ alleged conspiracy with certain former plaintiff’s employees to take over the plaintiff’s company or, failing that, to divert their personnel, intellectual property and investors to a competing enterprise to commercialize the plaintiff’s alcohol tracking product known as the “BarMaster”. As early as May 2011, the plaintiff threatened Defendants with litigation for interfering with the plaintiff’s operations, ultimately filing suit in June 2013.

After the plaintiff’s discovery requests yielded just 422 pages produced by the defendants (including no communications solely between defendants and virtually no communications between defendants and any “co-conspirator” identified in the plaintiff’s requests) the plaintiff moved to compel further production and in September 2014, the court granted the motion and ordered that “(i) Defendants appear by September 23 for depositions regarding ‘document preservation and production,’ and (ii) the parties meet and confer in order to submit to the court by September 30 ‘a plan to retain an independent consultant to do a limited forensic collection and analysis of the media associated with each named defendant.’”

During the depositions, the individual defendants admitted having deleted numerous emails and text messages, failing to preserve devices that potentially responsive data was stored on, failing to search key media and failing to use obvious search terms in the searches that they did perform. Meanwhile, in October 2014, per the parties’ joint agreement, the Court selected the a digital forensics firm (at the defendants’ expense) to perform a forensic analysis of Defendants’ media and email accounts, with the order calling for the defendants to produce over 40 specified electronic media and email accounts for forensic imaging.

The digital forensics firm ultimately found 2,593 relevant documents totaling 12,467 pages – over 12,000 pages more than the defendants had previously produced and also determined that “four separate system optimization and computer cleaning programs were run” (including CCleaner, aka “Crap Cleaner”) on one defendant’s laptop. These programs were loaded onto his laptop and executed on July 22, 2014 – just six days after the filing of the plaintiff’s motion – and resulted in the deletion of “over 50,000 files”. For that and other apparent instances of spoliation of data among the defendants, the plaintiff requested monetary sanctions, an adverse inference instruction and terminating sanctions.

Judge’s Ruling

With regard to the duty to preserve, Judge Grewal stated that “Once upon a time, the federal courts debated exactly when the duty to preserve documents arises. No more. “The duty to preserve evidence begins when litigation is `pending or reasonably foreseeable.’”

Finding that the defendants “were on notice of foreseeable litigation well before spoliation occurred”, that their “spoliation occurred with the required culpable mindset” and that they “failed to produce thousands of documents that contained key terms that the parties designated as relevant to the litigation”, Judge Grewal ruled that “In sum, sanctions are warranted. The only question is what kind.”

Ultimately, Judge Grewal awarded “expenses and fees in this discovery dispute under Fed. R. Civ. P. 37(b)(2)(C)” of $212,320 and granted the request for an adverse instruction that the unproduced material may be deemed to support the plaintiff’s contentions. He also ruled that “Defendants’ prior counsel also must be sanctioned for improperly certifying Defendants’ discovery responses, and for subsequently failing to intervene even after ‘obvious red flags’ arose, such as Defendants’ failure to produce incriminating documents CVT obtained from their third parties.” Also, based on information that the defendants had “stiffed on the bill” for the digital forensics firm, Judge Grewal ruled that “Defendants shall show cause why they should not face further sanctions for this failure.”

Judge Grewal, however, declined to recommend terminating sanctions “in light of public policy and the sufficiency of monetary sanctions and an adverse jury instruction”.

So, what do you think? Should the request for terminating sanctions have been granted? 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.

Here’s Some Useful Criteria for Evaluating Information Governance Vendors: eDiscovery Best Practices

Rob Robinson’s excellent Complex Discovery blog has been a terrific resource for eDiscovery information for several years now, covering everything from a “mashup” of eDiscovery market estimates to mergers, acquisitions and investments in the eDiscovery industry. His article from last week provides some useful information to organizations looking to select the right information governance vendor for their needs.

Rob’s article, 9 Subjective Considerations for Assessing Information Governance Vendors, considers more than just the hardware and software “nuts and bolts” to select the right information governance vendor. Rob notes that “just as there is much more to the utility of a knife than its edge (especially if you want to use it more than once), there are additional areas worthy of consideration in vendor selection if one is considering the long term strategic utility and viability of a vendor.” Rob uses the Free Dictionary’s definition of “viable” as “capable of success or continuing effectiveness”.

While he acknowledges that these nine criteria are not “all-inclusive”, Rob observes that they “may have an impact on {your} organization for many years to come”. Here are the criteria, along with questions that Rob asks for each (in italics):

  1. Technology = Demonstrated ability of product/service offering’s technical contribution to solving specific information governance challenges. Does the vendor’s technology appear to do what you need it to do? Can the technology be validated by some entity other than the vendor?
  2. Domain Knowledge = Demonstrated ability of an organization to utilize technology to solve specific information governance challenges. Does the vendor understand the domain you are operating in or do they just understand their technology?
  3. Awareness = An organization’s mindshare in the eyes of the client in relation to other organizations seeking to solve similar information governance challenges. Is the vendor known by information governance analysts, thought leaders, influencers, and information governance experts?
  4. Reputation = The confidence level customers have in the actual or perceived ability of an organization to solve information governance challenges viewed in relation to other organizations. Does the vendor have a reputation for being able to deliver on the expectations they set in a timely and accurate manner?
  5. Free Cash Flow = Net Income + Depreciation/Amortization – Changes In Working Capital – Capital Expenditure. Is the vendor able to meet financial commitments to support client needs and internal/external commitments?
  6. Clients = The number of active entities that have paid for information governance products/services in the current calendar year. Does the vendor have clients who have moved beyond the partner, master services agreement, and/or pilot phase of an engagement and are actually using the product/service in a production environment on a regular basis?
  7. Motive = The stimulus causing an organization to determine product/service strategies and tactics. Are vendor decisions made for the greater good of clients and vendor support staff or are they personality driven completely based on the personal objectives of the vendor ownership?
  8. Sincerity = Congruence or lack thereof between an organization’s stated market desires and actual leadership actions. Does the vendor do what they say they are going to do for both clients (external sincerity) and internal support staff (internal sincerity)?
  9. Employee Turnover = The rate at which an organization gains or loses staff. Is the vendor committed to its employees/contractors? Are vendor employees/contractors committed to the vendor?

Regardless how good an information governance vendor’s technology may be, if the vendor can’t demonstrate a knowledge of the industry and doesn’t have a proven track record for meeting client deadlines, an established client base or financial or organizational stability, they may not be the right choice for your organization for the long term.

Rob’s article has other key points and additional useful information, you can check it out here.

So, what do you think? Does your organization use one or more information governance vendors? If so, what criteria did you use to select them? 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 Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: eDiscovery Case Law

We haven’t had a good social media request case in a while – here’s one that compares to other cases we’ve covered in the past…

In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Civil Action No. 12-1011 (W.D. Penn. April 14, 2015), Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Case Background

In this case, based on the discovery of the posting on the plaintiff’s Facebook page in which she indicated that another brand of chicken jerky dog treats caused the harm to her dog, the defendants were of the belief that there could be other relevant information on her Facebook account. The defendants sought that information in their Second Request for production, asking the plaintiff to produce “the Facebook Data and Facebook Data File of Lisa Mazur and/or Lisa Pierwsza Mazur.” Despite the fact that the defendants’ request was unlimited and objected to by the plaintiff as inherently overbroad, she nevertheless responded to the request and provided 648 pages of Facebook data, albeit redacted. The Facebook data provided contained information indicating that Plaintiff purchased dog treats other than Defendant’s brand, as well as conversations the plaintiff had with others about the dog treat brand and the case.

The defendants argued that it was improper for the plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions were “suspect” and contended that they were entitled to unfettered access to Plaintiff’s Facebook account including her username and password. Citing Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), suggesting that “these cases stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made”.

Judge’s Ruling

Referencing Fed.R.Civ.P. 26(b)(1), Judge Kelly stated that “Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court’s discretion and judgment. A party moving to compel discovery bears the initial burden of proving the relevance of the requested information.”

With regard to the three cases cited by the defendants, Judge Kelly noted that they were “factually distinguishable from the instant case and, in this Court’s view, do not require the limitless access to Plaintiff’s Facebook account data advocated by Defendants.” In Largent v. Reed, for example, the plaintiff had refused to provide any Facebook data, whereas the plaintiff here produced 648 pages from her Facebook account. Judge Kelly also observed that pictures of the plaintiff “enjoying life with her family” in Facebook would not near as relevant as they would be in a personal injury litigation like Largent.

Agreeing with the plaintiff’s argument, Judge Kelly stated that “having already provided Defendants with Facebook data relevant to the case, Defendants have failed to make any showing that further production of her Facebook records would result in the dissemination of any more relevant information than has already been provided.” She therefore denied the defendants motion to compel.

With regard to the redactions, the plaintiff had redacted a conversation with another purported class member in the case because their conversation revolved around “specific advice given by class counsel as to the litigation and its progress”. Because of the dispute over the validity of the redactions, Judge Kelly decided “out of an abundance of caution”, “that the best course is to have Plaintiff produce the claimed privileged documents to the Court so that an in camera inspection can be conducted. In this manner, any truly privileged information will remain protected and Defendants can proceed confident that they have received all the relevant and non-privileged information from Plaintiff’s Facebook data.”

So, what do you think? Was that the correct decision or should the judge have treated this case like the three cases cited by the defendant? 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.

Are You as “E-Savvy” as You Need to Be in Your “E-Disclosure” Process?: eDiscovery Best Practices

Craig Ball’s Ball in Your Court blog is always an excellent read, even when he writes it “across the pond” over in London. His latest post discusses how “fighting the last war” will eventually cost you when you come across an “e-savvy” opponent.

In Craig’s post, Girding for the E-Savvy Opponent, he mentions that he is presenting the keynote topic opening the Information Governance & eDiscovery Summit conference in London and how, while he was there, they were celebrating the 70th anniversary of VE day. I’ve heard him say before that “Generals are always prepared to fight the last war”, which he analogizes to technology and “e-disclosure” (which is what they call eDiscovery across the pond). Imagine if we were still trying use mounted cavalry to fight against armored tanks? It would be a disaster. As he notes, “In e-disclosure, we still fight the last war, smug in the belief that our opponents will never be e-savvy enough to defeat us.”

Craig notes that “Our old war ways have served so long that we are slow to recognize a growing vulnerability. To date, our opponents have proved unsophisticated, uncreative and un-tenacious.” He observes how our tech-challenged opponents “make it easy” and that he has “more than once heard an opponent defend costly, cumbersome procedures that produce what I didn’t seek and didn’t want with the irrefutable justification of, ‘we did what we always do.’”

But, that won’t always be the case. Craig predicts that “our once tech challenged opponents will someday evolve into Juris Doctor Electronicus.” When those tech challenged opponents evolve into e-savvy opponents, you can expect that they will (among other things): “demand competent search”, “insist on native production”, “compel transparency of scope and process”, “shrewdly use sampling to expose failure” and “demand competence, but not overreach”. With regard to that last point, Craig observes that “E-savvy counsel succeeds not by overreaching but by insisting on mere competence – competent scope, competent processes and competent forms of production. Good, not just good enough.”

Defenses against the e-savvy lawyer may include “the Luddite judge who applies the standards of his or her former law practice to modern evidence” or a strategy “to embed outmoded practices in the rules and to immunize incompetence against sanctions”. But, those won’t work forever. With virtually all evidence today “born electronically”, best practices for handling such evidence cannot be ignored forever. Someday, you will have to face e-savvy opponents on a regular basis, will you be ready?

As usual, Craig has numerous insightful observations in his post, I’ve referenced several of them here, but don’t want to fully steal his thunder, so I recommend you check out his post here.

So, what do you think? Is your organization still “fighting the last war” or are they prepared to deal with an “e-savvy” opponent? 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.

Law Departments and Law Firms Getting Smarter About Data Privacy and Security, According to Huron Legal: eDiscovery Trends

How are recent trends related to data privacy and security affecting the legal industry? Though one recent report was critical of law firms for failing to disclose data breaches, according to a new Q&A from Huron Legal, law departments, and law firms are getting smarter about addressing data privacy and security issues.

The new Q&A with Huron Legal director David Ray is titled Data Privacy and Security in the Legal Industry and discusses the efforts law departments, law firms, and other service providers are making to protect sensitive and confidential data.

“By nature, the legal industry deals with a large amount of potentially sensitive information, and as a result, data privacy is becoming increasingly more important,” said Ray, a data privacy and security expert. “Traditionally, legal professionals have seen themselves as somewhat immune to these issues. However, the increased overall focus on privacy and recent data breaches is affecting the legal sector just like any other. Law departments, law firms, and legal vendors are recognizing this growing pressure and have started to make changes accordingly.”

According to Ray, the five biggest trends in data privacy in the legal industry are in the following areas:

  • Law Departments are Getting Wiser: Law departments are becoming increasingly more involved with privacy issues as well as data breach responses and, accordingly, becoming wiser consumers of external legal services. Unsurprisingly, they are placing the information governance practices of their suppliers under much greater scrutiny than ever before.
  • Vendor Information Governance Scorecards: In fact, law departments are more often using metrics and scorecards to evaluate law firms and legal service vendors with the expectation they can meet or exceed the same privacy and security practices expected from non-legal service providers elsewhere within the organization. Scorecards allow organizations to know that the information that goes outside their walls is secure and protected by the appropriate practices.
  • Law Firms See Opportunity Rather than a Threat: One might expect to see pushback from law firms on newer stringent data security requirements. However, law firms seem to be responding to these heightened client demands and seeing them as a differentiator when competing for business. Demonstrating an ability to deal with sensitive and often high-value matters from an information perspective makes sense.
  • Legal Vendors are Playing Catch-up: Legal vendors are largely playing catch-up in data privacy issues. For a long time, the tools they provided for legal services were narrow. But now legal vendors need to rise to the same challenge. Additionally, these vendors need to design both the software and processes with privacy in mind, consulting the “privacy by design” principles before they become hindrances to the sale of services.
  • Data Privacy is Fast Moving: The most important consideration when dealing with privacy and security is understanding that it is an evolving field. The definitions and laws are changing, both within the U.S. and abroad. Everyone in the legal industry needs to be prepared for change and to be flexible. The laws today may be different in two years, so planning with that in mind is critical.

The full Q&A can be found here, with a podcast of the Q&A available here.

So, what do you think? Do you think the legal industry has made significant strides in dealing with data security and privacy? 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.

Here Are Other Team Members that a Winning Team Needs: eDiscovery Best Practices

When beginning a new eDiscovery project, a good place so start is to estimate the various tasks that will need to be performed and identify the type of personnel that will be needed. Every project is different and unique, so the requirements of each project must be assessed. As the project unfolds, the tasks required to complete it may change – not just in terms of tasks added, but also tasks removed if the work is deemed to be unnecessary. So, it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Yesterday, we began discussing the types of roles that could be associated with a typical eDiscovery project, here are some other roles:

Processing Personnel: After your team has identified and collected the ESI, it will usually be necessary to process that ESI to prepare the data for searching and review. There are several tools and/or service providers available to process your ESI; it’s simply a matter of selecting the best tool(s) for your organization. For each case, key decision makers on the team will need to evaluate the specific needs of that case to determine whether additional software or an outside vendor is needed and select the appropriate software to license and/or vendor to engage, if so. Then again, depending on your needs, you may not need processing personnel at all!

Document Review Personnel: After identifying, collecting, processing and culling the ESI, it typically needs to be reviewed by qualified review personnel to at least determine if it is responsive to the production request from opposing counsel and if it should be withheld due to a claim of privilege. Some review is always necessary, even when you’re utilizing a technology assisted review approach. Depending on the case, the ESI may need to be reviewed for other reasons or the review for responsiveness and/or privilege may be more in-depth. Usually, the reviewers are licensed attorneys; though, experienced paralegals are used in some cases. Either way, they will require training and guidance regarding the expectations of their job in general, receive instructions on the specific review project which they are working on, and be properly trained on use of the selected review application.

Hosting Provider: Depending on the case, you may use a hosting provider for the ESI from as early as preservation through production. The volume of ESI to be managed and reviewed, requirements to distribute review tasks across personnel who may be in different geographical locations, and the arrangements between the parties concerning the method and format of production are among the factors for deciding to use a hosting provider and also for selecting the desired provider. And, be sure to compare pricing structures, not all providers charge for user fees, training or support. It’s important to compare apples to apples.

Attorney(s): Did you think I forgot the attorney? Of course, potentially complicated legal questions and issues arise in just about any discovery project, so you need an attorney who understands the legal rules and complexities associated with discovery of ESI. If the lead attorney doesn’t have the requisite knowledge in this area, it may be necessary to add an attorney with specialized eDiscovery knowledge to the team to provide advice and coordination on discovery issues. Many corporations have designated attorneys or paralegals on their in house legal staff who work on all eDiscovery matters; however, some organizations may also use outside eDiscovery counsel to work on discovery-related matters even if they’re not part of the firm representing the organization.

Each case will have unique requirements that affect the make-up and size of the team, so not all of the roles discussed over the past two days will be required for every case and the number of personnel in each role may also vary.

So, what do you think? Do you estimate the team members needed for your project before it begins? 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.

A Winning Team Needs Several Types of Team Members: eDiscovery Best Practices

Happy Belated Mother’s Day to all the mothers out there, including my lovely wife, Paige!  We touched on this topic over three years (and several hundred subscribers) ago, so I thought it was worth revisiting.  Enjoy!

When beginning a new eDiscovery project, a good place so start is to estimate the various tasks that will need to be performed and identify the type of personnel that will be needed. Every project is different and unique, so the requirements of each project must be assessed. As the project unfolds, the tasks required to complete it may change – not just in terms of tasks added, but also tasks removed if the work is deemed to be unnecessary. So, it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Here are the types of roles that could be associated with a typical eDiscovery project:

Client Contact(s): Whether it’s an individual, a corporation or a government entity, it’s important for the client to be involved in the process, so the team should include at least one client representative that can serve as the link between the internal and external teams, providing guidance on internal company workings and contact personnel. Typically, the client contact is from the in-house legal department, usually either a paralegal (to handle routine tasks) or an attorney (to discuss issues and coordinate decision making). When preservation and collection are required, the client contact(s) generally assist with litigation hold procedures, locating and collecting ESI, and conducting interviews of custodians. It is up to the client contact(s) to involve key managers and custodians as needed to provide guidance during this process.

IT Personnel: When responding to requests for ESI, let’s face it – you need one or more people who can “speak geek”. It’s important to include personnel who understand technical details about the client’s various computer systems and data (and maybe even the data map). Depending on the case, you need one or more individuals who understand any and all of the above: email and email archiving, storage of employee ESI, servers, clients, intranets, and databases. It’s typical for IT personnel in larger organizations to specialize; for example, to have one or more that is more knowledgeable about structured data (i.e. database programs) while others may understand and have access to email systems.

IT personnel should be involved in all issues related to the technology for the responding party to increase efficiency and optimize the approach to each new case. For many corporations, this is typically one or more individuals already employed as a member of the IT staff. It’s important for IT personnel to have at least a basic understanding of the legal processes and requirements of discovery (in other words, they have to be able to “speak legal” too, at least somewhat). If they don’t have that, it may be necessary to provide some training before a case arises or employ an outside consultant.

Forensic Collection Personnel: In some cases, it’s necessary to perform forensic analysis on various types of ESI (or at least collect the ESI in a forensic manner in the event that’s required). Examples of cases that may require forensic collection of electronic data include internal integrity investigations, situations where fraud and data deletion are suspected (such as trade secret cases) and government civil or criminal investigations. To enable the forensic specialist to testify (if required) to the work that was performed and exactly how it was done, companies often use a vendor not employed by the company or by the outside law firm.

See at least one critical team component missing? Tomorrow, we’ll talk about the rest of the team. Same bat time, same bat channel!

So, what do you think? Do you estimate the team members needed for your project before it begins? 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.

Oh, Thank Heaven! Court Orders 7-Eleven to Produce Metadata: eDiscovery Case Law

In Younes, et al. v. 7-Eleven, Inc., Civil Nos. 13-3500 (RMB/JS), 13-3715 (MAS/JS), 13-4578(RMB/JS) (D.N.J. Mar. 18, 2015), New Jersey Magistrate Judge Joel Schneider granted the plaintiffs’ motions to compel the production of metadata for selected groups of documents, denying the defendant’s cross-motions to bar the production of metadata.

Case Background

In this dispute between franchisees and the parent company, the plaintiffs had struggled to obtain relevant documents from the defendant regarding the possible take back of franchises, with the defendant producing documents “in dribs and drabs”. Even after months of discovery and numerous court conferences addressing discovery disputes, the defendant acknowledged that not all relevant, requested and non-privileged documents had been produced. Moreover, some of the key documents produced were not dated and did not list the author or recipients.

As a result, one plaintiff group identified 38 documents and two Excel spreadsheets for which they wanted metadata (including “the date of origination, author, custodian, date of each modification and author of each modification, and to the extent available, any data which established to whom the document had been electronically distributed”), while the other plaintiffs sought metadata for an additional 49 documents, two of which were duplicative of the first group of documents. The plaintiff groups filed motions to compel production of the metadata.

The defendant, in its opposition to plaintiffs’ motions and in support of its cross-motions, argued that “(1) the parties agreed at the outset of the case that documents need only be produced in PDF format without metadata; (2) 7-Eleven does not possess much of the requested metadata; (3) the metadata that is available is ‘extremely limited, minimally meaningful and potentially misleading’; and (4) it would be ‘unreasonably burdensome to require 7-Eleven to re-produce [its] . . . documents with metadata.’” (emphasis added) The defendant supported its opposition with statements from the Declaration of its IT director.

Judge’s Evaluation and Ruling

Citing Fed. R. Civ. P. 34(b)(2)(E), Judge Schneider noted that “A party requesting ESI may specify the form of production, which can include metadata”, but did also note that “[s]ome courts hold that a party must show a ‘particularized need’ for metadata.” With regard to that, Judge Schneider stated:

“To the extent it is necessary, plaintiffs have shown a particularized need for the requested metadata. Plaintiffs have demonstrated that many of the paper documents produced to date are missing source, date, and other key background information. This missing information is plainly relevant and discoverable. Further, the requested metadata is relevant to authenticating 7-Eleven’s documents, especially since the authors or creators of some important documents are unknown. It is not insignificant that plaintiffs only identified a relatively small number of documents for which they request metadata rather than asking for metadata for all documents.”

Judge Schneider also found that “None of 7-Eleven’s arguments are persuasive. It is true that the parties originally agreed not to request metadata. However, good cause exists to modify the agreement… Had plaintiffs known at the outset of the case the difficulties they would face in obtaining relevant information regarding 7-Eleven’s documents, it is unlikely they would have agreed to forego requesting metadata. The changed circumstances plaintiffs face justify modifying their earlier agreement not to request metadata… Further, plaintiffs are not requesting metadata for all of 7-Eleven’s documents. Plaintiffs only request metadata for a finite number of documents. The Court does not expect the cost to retrieve the requested metadata to be extensive or costly.”

As a result, he granted the plaintiffs’ motions to compel the production of metadata for the selected groups of documents, denying the defendant’s cross-motions to bar same.

So, what do you think? Was that the correct decision or should the judge have honored the initial agreement between the parties to not require 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.

Ten Years Later, EDRM is Still Going Strong: eDiscovery Best Practices

It’s hard to believe, but ten years ago this month the leading standards organization for the eDiscovery market was launched. Launched in May 2005, the Electronic Discovery Reference Model (now simply known as EDRM) was created to address the lack of standards and guidelines in the electronic discovery market. This week, EDRM moved into its second decade with its annual Spring Workshop in St. Paul, MN.

At the first meeting in May 2005, there were 35 initial members, according to Tom Gelbmann of Gelbmann & Associates, co-founder of EDRM along with George Socha of Socha Consulting LLC. Check out the preliminary first draft of the EDRM diagram – it has evolved quite a bit to its current form today! Among the participants in that first meeting were a number of eDiscovery providers and, according to Gelbmann, they asked “Do you really expect us all to work together?” The answer was “yes”, and the question hasn’t been asked again. Today, there are over 370 members from 119 participating organizations including eDiscovery providers, law firms and corporations (as well as some individual participants).

As usual, in the first morning of the workshop, each team provided a status update of their accomplishments over the past year as well as current deliverables in progress. A few highlights:

  • Information Governance Reference Model (IGRM): Reed Irvin of Viewpointe provided the IGRM update, which included reiteration of the IGRM mission statement, a review of the evolution of the IGRM model (covered by us here, among other places), a review of group accomplishments over the past year (including this white paper, which is currently being updated) and discussion of the importance of information governance today.
  • Data Set: Eric Robi of Elluma Discovery provided the update for the Data Set team, which is working on several new data sets useful for testing that will include multiple levels of corrupted and encrypted files, as well as a set of email boxes containing fictitious content prepared to demonstrate a case and expects to announce a release as soon as next week.
  • Metrics: Tiana Van Dyk of Burnet, Duckworth & Palmer and other team members gave the update for the Metrics team, which is currently working on enhancements to the eDiscovery Maturity Self-Assessment Test (eMSAT-1) released last October, as well as continued efforts on new metrics calculators (last month, they rolled out a new EDRM Data Calculator to go with previously released calculators here, here, here and here).
  • Processing Standards: Greg Houston of kCura gave the update, which discussed the efforts to update the first release of the standards document that was rolled out in March.

As always, the meetings continued with breakout sessions for each of the teams, enabling them to further their progress toward deliverables for the coming year. Also, this year’s meeting included a session to discuss perspectives from EDRM’s growing corporate and government entity membership, with several ideas discussed regarding what EDRM can do to help to ease pain points for these organizations in information governance and eDiscovery, resulting in launching a new Corporate Project Team led by David Yerich of United Healthcare and Robert Stangler of Ameriprise Financial, with several initiatives planned. Corporate participation at the spring workshop was good with about 25% of the attendees representing corporate perspectives.

Having participated in EDRM since 2006 (and now an Education Partner), I can say that one of the most enjoyable aspects of attending the meetings is the networking with fellow industry professionals and EDRM provides several opportunities for that, with a cocktail reception the first (arrival) evening and a dinner after the first day’s sessions. Where else can you help to standardize the information governance and eDiscovery industries, while sharing stories (and a few laughs) with fellow industry professionals?

For more information about joining EDRM, click here for more reasons to join, here for answers to frequently asked questions and here for fees for participating (if you’re a corporation or government entity, it’s free!).

So, what do you think? Are you a member of EDRM? 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.

For Better Document Review, You Need to Approach a ZEN State: eDiscovery Best Practices

Among the many definitions of the word “zen”, the Urban Dictionary provides perhaps the most appropriate (non-religious) definition of the word, as follows: a total state of focus that incorporates a total togetherness of body and mind. However, when it comes to document review, a new web site by eDiscovery thought leader Ralph Losey may change your way of thinking about the word “ZEN”.

Ralph’s new site, ZEN Document Review, introduces ‘ZEN’ as an acronym: Zero Error Numerics. As stated on the site, “ZEN document review is designed to attain the highest possible level of efficiency and quality in computer assisted review. The goal is zero error. The methods to attain that goal include active machine learning, random sampling, objective measurements, and comparative analysis using simple, repeatable systems.”

The ZEN methods were developed by Ralph Losey’s e-Discovery Team (many of which are documented on his excellent e-Discovery Team® blog). They rely on focused attention and full clear communication between review team members.

In the intro video on his site, Ralph acknowledges that it’s impossible to have zero error in any large, complex project, but “with the help of the latest tools and using the right mindset, we can come pretty damn close”. One of the graphics on the site represents an “upside down champagne glass” that illustrates 99.9% probable relevant identified correctly during the review process at the top of the graph and 00.1% probable relevant identified incorrectly at the bottom of the graph.

The ZEN approach includes everything from “predictive coding analytics, a type of artificial intelligence, actively managed by skilled human analysts in a hybrid approach” to “quiet, uninterrupted, single-minded focus” where “dual tasking during review is prohibited” to “judgmental and random sampling and analysis such as i-Recall” and even high ethics, with the goal being to “find and disclose the truth in compliance with local laws, not win a particular case”. And thirteen other factors, as well. Hey, nobody said that attaining ZEN is easy!

Attaining zero error in document review is a lofty goal – I admire Ralph for setting the bar high. Using the right tools, methods and attitude, can we come “pretty damn close”?  What do you think? 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.