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Why Did I Get Two Emails This Morning? – eDiscovery Subscriptions

If you are an email subscriber to the blog (thanks for subscribing, by the way!), you may have noticed an anomaly in your Inbox this morning – two eDiscovery Daily emails.  So, why did this happen?  Here’s why.

Yesterday, we changed subscription feed providers, from our old provider (Feedburner) to our new provider (FeedBlitz).  We did so, because the FeedBlitz service gives us greater flexibility to customize the email to make it more useful to you.  The new subscription feed emails will include the title of the day’s post in the Subject line and will also provide links to recent stories, giving you another chance to catch them if you missed them.  We hope that you’ll find this new format to be much more informative and user-friendly.

Unfortunately, while migrating the feed over to the new service, I missed an important step in the process – turning off the old feed.  Oops.  So, those of you who subscribe via email received two emails today.

I believe that I have corrected the problem and you should only receive one email each day we have a new post going forward.  Sorry for the inconvenience and any “digital debris” that may have resulted in redundant emails.  😉

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How Do You Dispose of “Digital Debris”? EDRM Has Answers – eDiscovery Best Practices

In 2012, the Compliance, Governance and Oversight Council (CGOC) released survey results indicating that nearly 70 percent of organizational information has no legal or business value and noted that, for most organizations, information volume doubles every 18-24 months.  Now, EDRM, in collaboration with the CGOC, has released a new white paper to address growing concerns related to the amount and substance of electronic data currently created and stored.

Announced last week, the white paper, titled Disposing of Digital Debris – Information Governance Strategy and Practice in Action, is designed to provide readers with the strategy and practice they need to achieve disposal of their unnecessary electronic information.  Why is this issue such a major problem in organizations today?  Consider the following:

  • Every day, we create 2.5 quintillion bytes of data and rising;
  • Storage locations can include on-site, off-site, cloud and Software as a Service (SaaS) deployments and appear in a variety of hybrid configurations;
  • Social media platforms such as Twitter, Instagram or Facebook combine large volumes of data with high intensity social habits, creating large volumes of potentially sensitive data;
  • IT infrastructure, burdened by the storage and management of excessive data, shoulders high hidden costs that impact its budget and degrade application performance and operations;
  • eDiscovery processes result in the preservation of large amounts of data, including many duplicates that will be re-used as evidence in future litigation if not properly destroyed;
  • New regulatory requirements such as Dodd-Frank and privacy regulations increase the cost and risk of unnecessarily managing data debris.

With these factors contributing to the problem and nearly 70 percent of organizational data having no legal or business value, the need to identify and dispose of digital debris is clear.  To address the issue, the white paper is organized into three sections:

  1. The Problem – Defining and Identifying Digital Debris: This section discusses the tendency of IT departments to “keep everything forever”, provides several examples of digital debris and discusses the advantages of – and roadblocks to – disposal.
  2. The Strategy – Utilizing the Information Governance Reference Model (IGRM) Framework to Define and Design a Successful Information Governance Program: This section reviews the IGRM model (previously covered on this blog here) and covers a three-step approach to effectively begin to reduce both the risk and overhead costs associated with risky retention of digital debris.
  3. The Practice – Implementing the Strategy with Success: This section discusses and provides graphics to illustrate best practices for integrating people, process and technology and the benefit of a holistic approach involving all stakeholders, including Records management, Legal, Line of business users, Privacy and security and IT.

The white paper is available here and can be viewed online or downloaded as a PDF file.

So, what do you think? Does your organization have an effective program in place to eliminate “digital debris”? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Predictive Analytics: It’s Not Just for Review Anymore – eDiscovery Trends

One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology addresses how analytics can be used to optimize Information Governance.

Written by Bennett B. Borden & Jason R. Baron (who was one of our thought leaders discussing that very topic), Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 RICH. J.L. & TECH. 7 (2014) is written for those who are not necessarily experts in the field.  It provides a synopsis of why and how predictive coding first emerged in eDiscovery and defines important terms related to the topic, then discusses aspects of an information governance program where application of predictive coding and related analytical techniques is most useful. Most notably, the authors provide a few “early” examples of the use of advanced analytics, like predictive coding, for non-litigation contexts to illustrate the possibilities for applying the technology.  Here is a high-level breakdown of the report:

Introduction (pages 1-3): Provides a high-level introduction of the topics to be discussed.

A. The Path to Da Silva Moore (pages 3-14): Provides important background to the evolution of managing electronically stored information (ESI) and predictive coding (fittingly, it begins with the words “In the beginning”).  Starting on page 9, the authors discuss “The Da Silva Moore Precedent”, providing a detailed account of the Da Silva Moore case (our post here summarizes our coverage of the case) and also references other cases, as well: In re Actos (Pioglitazone) Products Liability Litigation, Global Aerospace Inc., et al, v. Landow Aviation, L.P., Kleen Products v. Packaging Corp. of America, EORHB, Inc. v. HOA Holdings and In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation.  Clearly, the past couple of years have provided several precedents for the use of predictive coding in litigation.

B. Information Governance and Analytics in the Era of Big Data (pages 15-20): This section provides definitions and important context for terms such as “big data”, “analytics” and “Information Governance”.  It’s important to have the background on these concepts before launching into how analytics can be applied to optimize Information Governance.

C. Applying the Lessons of E-Discovery In Using Analytics for Optimal Information Governance: Some Examples (pages 21-31): With the background of sections A and B under your belt, the heart of the report then gets into the actual application of analytics in different scenarios, using “True Life Examples” that are “’ripped from’ the pages of the author’s legal experience, without embellishment”.  These examples where analytics are used include:

  • A corporate client is being sued by a former employee in a whistleblower qui tam action;
  • A highly regulated manufacturing client decided to outsource the function of safety testing some of its products and a director of the department whose function was being outsourced, despite being offered a generous severance package, demanded four times the severance amount and threatened to go to the company’s regulator with a list of ten supposed major violations that he described in the email if he did not receive what he was asking for.
  • A major company received a whistleblower letter from a reputable third party alleging that several senior personnel were involved with an elaborate kickback scheme that also involved FCPA violations.
  • An acquisition agreement between parties contained a provision such that if the disclosures made by the target were found to be off by a certain margin within thirty days of the acquisition, the purchase price would be adjusted.

In each case, the use of analytics either resulted in a quick settlement, proved the alleged violations to be unfounded, or resulted in an appropriate adjustment in the purchase price of the acquired company.  These real world examples truly illustrate how analytics can be applied beyond the document review stage of eDiscovery.

Conclusion (pages 31-32): While noting that the authors’ intent was to “merely scratch the surface” of the topic, they offer some predictions for the end of the decade and note “expected demand on the part of corporate clients for lawyers to be familiar with state of the art practices in the information governance space”.  In other words, your clients are going to expect you to understand this.

The report is an easy read, even for novices to the technology, and is a must-read for anyone looking to understand more about applying analytics to Information Governance.  Bennett and Jason are both with Drinker Biddle & Reath LLP and are also co-chairs of the Information Governance Initiative (here is our recent blog post about IGI).

So, what do you think? Has your organization applied analytics to big data to reduce or eliminate litigation 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Finds Rule for Arranging and Labeling Documents Does Not Apply to ESI – eDiscovery Case Law
In Anderson Living Trust v. WPX Energy Prod., No. CIV 12-0040 JB/LFG (D.N.M. Mar. 6, 2014), New Mexico District Judge James O. Browning granted the defendants’ Motion to Reconsider an earlier discovery ruling that would have required the defendants to arrange and label the discovery documents they had already produced, on the grounds that under Rule 34, this production was not considered electronically stored information.

At issue in this hearing was whether “a party must, under Rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or whether compliance with rule 34(b)(2)(E)(ii)—production of ESI in the form that the requesting party requests, or in another reasonably usable form—is sufficient.” This question was applied to the production of approximately 20,000 pages of hard copy documents, which the defendants had scanned and produced in the format requested by the plaintiffs.

Previously in the course of discovery for this case, both parties had reached an agreement concerning discovery for the defendants to convert particular hard copy documents “in the order they were maintained within each file” to “fully searchable PDF files.” However, once production was completed according to the plaintiffs’ specifications, the plaintiffs filed a motion to compel the defendants to arrange and label the scanned document in order to “designate which of the Plaintiffs’ numbered requests these documents are responsive to.” The plaintiffs maintained that they could not manage the “tens of thousands of pages of documents” produced by the defendants “[w]ithout knowing which documents correspond with specific requests and whether the Defendants have, in fact, produced any documents responsive to some requests…”.

The defendants voluntarily provided the plaintiffs with an index of their production in response to the motion to compel, and argued that requiring them to “parse through the verbiage of each request and narrow down precisely which file was produced in response to which request would take a significant amount of time” and would therefore be unduly burdensome.

Initially, Judge Browning was inclined to side with the plaintiffs, but after hearing the defendants’ Motion to Reconsider, it was concluded that under Rule 34, scanned hard copy documents would not be considered ESI, and therefore the requirement that “documents be produced either in the usual course of business or labeled to correspond to categories in the request” does not apply. Therefore, the defendants had met their discovery obligations.

Judge Browning stated in part: “From the evidence available to the Court, it appears that the Plaintiffs did more than merely ‘stipulate’ to the form of production – it appears the Defendants were the one making most of the concessions: they agreed to the Plaintiffs’ request to scan hard copy documents into ESI for the Plaintiffs’ convenience, and they assented to the Plaintiffs’ request to convert the information into PDF form, rather than the cheaper and more familiar [from the Defendants’ perspective] TIFF form.”

Therefore, the defendants’ Motion to Reconsider was granted, with the conclusion that the “defendants’ production of discovery in PDF format – consisting of items stored as ESI before the litigation, as well as approximately 20,000 pages of documents that existed in hard copy form before being rendered into ESI for production – is adequate, and no further production or labeling is required.”

So, what do you think? Should electronically stored information be defined solely as documents that already existed in electronic format prior to litigation? Should it be reasonably logical to assume that documents produced as discovery be arranged and labeled to correspond with responsive requests? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Peruse, But Don’t Friend Potential Jurors on Social Media – eDiscovery Trends
Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.  So says a new formal opinion from the American Bar Association (ABA) Standing Committee on Ethics and Professionalism.

Formal Opinion 466 is a nine page PDF document which is designed to cover the responsibilities for lawyers who are reviewing jurors’ Internet presence.  For the purposes of this opinion, Internet-based social media sites that readily allow account-owner restrictions on access are referred to as “electronic social media” or “ESM” sites – of which the opinion gives current examples like Facebook, MySpace, LinkedIn, and Twitter.

Under Model Rule 3.5(b) of the ABA Model Rules of Professional Conduct, a lawyer may not communicate with a potential juror leading up to trial or any juror during trial unless authorized by law or court order.  With that in mind, the opinion addresses three levels of lawyer review of juror Internet presence:

1. passive lawyer review of a juror’s website or ESM that is available without making an access request where the juror is unaware that a website or ESM has been reviewed;

2. active lawyer review where the lawyer requests access to the juror’s ESM; and

3. passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer.

To illustrate whether each activity violates Rule 3.5 (b), the opinion analogizes each of the activities to real world contact, as follows:

1. In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.  So, passive review of a juror’s website or ESM, that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b).

2. This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past and it would be the type of ex parte communication prohibited by Model Rule 3.5(b).

3. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.  A lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM.

Also, under Model Rule 3.3(b), if a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.  However, the opinion hedged on a lawyer’s duty to notify the court when the conduct is merely “improper”, but stops short of being criminal or fraudulent.

So, what do you think? Do any of the parameters of this opinion surprise you? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Rule 37(e) Amended Again – eDiscovery Trends

Last month, we discussed significant changes made to Rule 37(e), which had been hotly debated (as reflected in our recent thought leader series) and was the source of many of the 2,354 public comments filed regarding the recent proposed rules changes.  Earlier this month (on April 10th and 11th), the Advisory Committee on Civil Rules met to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment and further changes were made to Rule 37(e).

Discussion regarding Rule 37(e) occurred on the second day of the two-day meeting and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee (also known as the “Duke Subcommittee”), which was ultimately approved by that committee without opposition and will now be submitted to the Standing Committee for its review and potential approval.  Here is the new, much simpler, proposed rule:

(e)  FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.  If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1)  Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2)  Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A)  presume that the lost information was unfavorable to the party;

(B)  instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)  dismiss the action or enter a default judgment.

During the meetings, the Advisory Committee also unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34.  The proposed amendments will be considered at the next meeting of the Standing Committee on May 29-30.

The full report of the meetings including the text of the proposed amendments to rules 1, 4, 16, 26, and 34 are available in the Advisory Committee’s 580 page(!) Agenda Book here.  Discussion of Rule 37(e) starts on page 369 – you can click on Tab 3 in the Agenda to jump straight to that section.

Click here, here, here and here for previous posts on this blog regarding the proposed rules changes.

So, what do you think? Are the latest changes an improvement?  Will there be more changes? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why the Blog was Down — eDiscovery Downtime
If you’ve tried to access the blog for the past couple of days, you’ve experienced a lot of difficulty and, for parts of Monday and Tuesday, got an indication that the URL didn’t exist.  Here’s why:

According to Typepad, our platform for hosting the blog, “Beginning Thursday evening, Typepad was hit with a distributed denial of service (DDoS) off and on through today. A DDoS attack is an attempt to make services unavailable, but in no way was your Typepad account compromised. All information in your Typepad account is secure, including billing information. The attack on Typepad was similar to an attack on Basecamp which you can read about here.

The Typepad blogs and application have been restored. We put in place some roadblocks to mitigate the attack, but we are on high alert as attackers change their tactics regularly.”

Typepad reported that originally on Friday, then was hit with another attack on Sunday that left our blog down until yesterday afternoon.  It has been up since then.

Hopefully, the blog will continue to be up and accessible.  We’re continuing to monitor the situation and will provide an update if anything changes regarding the DDoS attack that Typepad has encountered.  Thanks for your patience and thanks for reading the blog!

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant – eDiscovery Case Law
In T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P (N.D. Tex. Feb. 12, 2014), Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

In this litigation, it had been ordered that “a third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives.” After examining the three computers produced by the defendants, the expert determined that one of the computers produced by an individual defendant had been manipulated.

In his report, the expert specifically stated that the defendant “created a new profile on PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent ‘attempt to make it look like that was his computer that he used all the time’.” It was noted that the majority of the manipulated data was not related to the issues of the lawsuit. Further, the expert “believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case,” and identified the computer that was not produced as “Alienware.”

Evidence in the expert’s report indicated that the last use of the Alienware computer had been inside the individual defendant’s home, the day after defendants were ordered to produce all computers relevant to the litigation. Additionally, the report found that the missing computer had been connected to the computer identified as PCL-03, which contained the manipulated data. And further, evidence indicated that during the relevant time period, the defendant had sent emails from the Alienware computer.

The defendant testified that he had used the bulk fire changer only to attempt to “set them as read only,” allegedly so they could not be deleted, and further categorized the copied files as “a multitude of things related to our investor files, a lot of photos, PDFs, Word documents, just standard stuff that we update our investor base with.” However, it was ultimately concluded that this testimony was false.

The plaintiffs requested sanctions, and limited consideration to the three specific computers produced by the defendants, while denying the defendants’ objection to consideration of the absent Alienware computer because “a finding that Defendants manipulated data on PCL-03 in order to avoid production of the Alienware computer or any other relevant evidence remains a viable ground for sanctions.”

Broadly, the Magistrate Judge ruled that the defendants had a duty to preserve “the evidence at issue, including PCL-03, the Alienware computer, and any other computer used by Defendants in 2011 in their possession, custody, or control.” Additionally, it was deemed that despite the individual defendant’s insistence that the unproduced computer was not within his home, the “evidence overwhelmingly support[ed]” the determination of the expert with regards to the manipulated data and the existence and use of the Alienware computer.

It was ruled that the individual defendant “acted in bad faith” by altering the metadata on PCL-03 to make it appear that he had used the computer “for a number of years,” and that he had made false statements to the court about manipulating the data, and further that it was done “in the context” of the defendant’s failure to produce the Alienware computer. While the Magistrate Judge concluded that the plaintiffs had not been “irreparably prejudiced,” requisite prejudice was established because “a reasonable fact finder could conclude” that there was relevant information contained on the non-produced computer, and that spoliation had occurred. Therefore, the Magistrate Judge recommended that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.” In addition, a recommendation was made for monetary sanctions of $27,500.

Judge Solis, upon conducting a de novo review and hearing objections from the defendants, accepted the recommendations of the Magistrate Judge in imposing both the adverse inference and monetary sanctions against the defendants.

So, what do you think? Are adverse sanctions sufficient to suggest electronic evidence that is not present due to data manipulation? Should a more stringent order be placed in cases where it is determined that evidence has been deliberately not produced? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

New California Proposed Opinion Requires eDiscovery Competence – eDiscovery Trends
If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

The California State Bar Standing Committee on Professional Responsibility & Conduct has released Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information.  As stated on the first page of the opinion:

“Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”

The proposed ethics opinion includes a hypothetical situation in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced.  Ultimately, the lawyer learns the search produced privileged information and also showed that his client had deleted some potentially relevant documents as part of a regular document retention policy, breaching his duty of competence and his duty to maintain client confidences and to protect privileged information.  Oops!

The remainder of the proposed eight page opinion discusses those very attorney duties regarding ESI, including the duty of competence and the duty of confidentiality.

The committee is requesting comments on the proposed opinion through June 24.  For more information and where to direct comments, click here.

So, what do you think? Are ethics opinions like this needed to establish competency requirements for attorneys? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments – eDiscovery Case Law
In Skepnek v. Roper & Twardowsky, LLC, 11-4102-KHV (D. Kan. Jan. 27, 2014), Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.

The defendants opposed the motion to enforce, first by claiming that the plaintiffs had failed to meet and confer with them regarding the production of the Electronically Stored Information (ESI). While federal rules state that a party filing a motion has a duty to confer with opposing counsel, the local rules for this district expand upon that duty, specifically stating that “a ‘reasonable effort’ to confer means more than mailing or faxing a letter to the opposing party” and that the parties must in good faith “converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.”

Judge O’Hara noted that the opposing parties had exchanged correspondence and held a telephone conference in attempt to resolve this discovery dispute without the court’s intervention, and ruled that the plaintiffs had made a reasonable effort to confer with regard to producing email attachments.

The defendants also objected that the plaintiffs had waived their right to object to the form of production, which was at issue in that it resulted in emails being produced with the attachments missing. The defendants had been ordered to produce “all internal communications among defendants…that pertain to Requests for Production Nos. 6, 7, 10, and 11,” as well as “all electronic communications between Angela Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed by defendants in their motion.” These emails had been produced in PDF format, which did not result in the attachments being produced.

The plaintiffs suggested that if the ESI had been produced in native format, the attachments would have been included in production. Here, the defendants countered that they have always produced documents in PDF format, including emails, and that it would be “duplicative and burdensome to comply with plaintiffs’ request.” Further, the defendants had claimed that their “e-mail server search was not capable of producing the attachments to the e-mails,” but offered to produce specific attachments requested by the plaintiffs.

Judge O’Hara noted that producing attachments that have not previously been produced is not duplicative, and questioned why the defendants would be able to “produce specific attachments upon request,” when they claimed it was “impossible” to include all of the attachments. Additionally, the defendants did not offer evidence that producing the attachments would be burdensome, and the plaintiffs had not requested re-production of all documents. Instead, they “point[ed] out that one way defendants could [produce the missing attachments] is by producing the e-mails in their native format.”

Stating that the defendants “do not have the leisure of picking and choosing what responsive documents to produce,” Judge O’Hara ordered the defendants to produce all relevant communications, including attachments. No sanctions were imposed, since “both parties are at fault to some degree for failing to adequately confer early on regarding the production of ESI,” but the defendants’ request to have the plaintiffs pay for their production time was denied.

So, what do you think? Should a phone conference constitute a reasonable effort to confer with regard to the production format of ESI? Is PDF ever an appropriate format to produce email communications when attachments are relevant to the litigation at issue? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.