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eDiscoveryDaily

What’s in a Name? Potentially, a Lot of Permutations – eDiscovery Best Practices

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 Smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in OnDemand®, CloudNine Discovery’s online review tool.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is usually best.

Thursday, we will talk about another way to retrieve documents that mention key individuals – through their email addresses.  Same bat time, same bat channel!

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

Judge Carter Refuses to Recuse Judge Peck in Da Silva Moore – eDiscovery Trends

It seems like ages ago when New York Magistrate Judge Andrew J. Peck denied the motion of the plaintiffs in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) to recuse himself in the case.  It was all the way back in June.  Now, District Court Judge Andrew L. Carter, Jr. has ruled on the plaintiff’s recusal request.

In his order from last Wednesday (November 7), Judge Carter stated as follows:

“On the basis of this Court’s review of the entire record, the Court is not persuaded that sufficient cause exists to warrant Magistrate Judge Peck’s disqualification…Judge Peck’s decision accepting computer-assisted review … was not influenced by bias, nor did it create any appearance of bias.”

Judge Carter also noted, “Disagreement or dissatisfaction with Magistrate Judge Peck’s ruling is not enough to succeed here…A disinterested observer fully informed of the facts in this case would find no basis for recusal”.

Since it has been a while, let’s recap the case for those who may have not been following it and may be new to the blog.

Back in February, Judge Peck issued an opinion making this case likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted the plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck’s rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup’s production of electronically stored information.  Finally, on June 15, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal, which Judge Carter has now upheld.

So, what do you think?  Will Judge Carter’s decision not to recuse Judge Peck restart the timetable for predictive coding on this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do – eDiscovery Case Law

In Murray v. Coleman, No. 08-CV-6383, 2012 U.S. Dist. (W.D.N.Y. Sept. 12, 2012), the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

In his motion, the plaintiff asserted that the defendants “never provided a ‘chronological e-mail history of any kind.’” In response, defense counsel “simply aver[red] that after plaintiff filed this motion to compel, he provided plaintiff with…‘the documents sought’ and, therefore, plaintiff’s motion is ‘moot.’” The plaintiff responded to the defendant’s reply, asserting that “‘virtually no electronic records [were] included’ in defendant’s discovery responses.”

Because the defense counsel’s response to the plaintiff’s motion was “terse,” New York Magistrate Judge Jonathan Feldman stated that it was “difficult . . . to determine whether defendants have in fact produced all relevant electronic records and e-mails as demanded by plaintiff.” Lacking in defense counsel’s response were “details regarding how and where electronically stored information (“ESI”) is held, what efforts were made to preserve relevant ESI, and the method used by defendants to locate, search and produce relevant ESI.”

As such, Judge Feldman “construe[d the defendants’] response as a claim that ESI, including e-mails, [were] not . . . produced because the data demanded [was] destroyed or [was] not ‘reasonably accessible’” pursuant to Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure, which requires a producing party to “show that the information is not reasonably accessible because of undue burden or cost.”

Therefore, because the defendants had not sufficiently demonstrated that the ESI was not reasonably accessible, Judge Feldman ordered as follows:

“Defense counsel shall file an affidavit of a person with direct knowledge of DOCS’s document and e-mail retention system stating: (1) the document/e-mail retention policy used by DOCS currently and during the relevant time periods, (2) the dates of e-mails “reasonably accessible” for production in this litigation, (3) the back up or legacy system, if any, used by DOCS to preserve or archive e-mails that are no longer “reasonably accessible” and whether responsive documents or data may potentially be found on such back up or legacy systems, (4) whether accessing archived or back up e-mails would be unduly burdensome or costly and why, and (5) the date when a litigation hold or document preservation notice was put in place by DOCS regarding this matter and either a copy of or a description of the preservation or litigation hold utilized by DOCS.”  [emphasis added]

Judge Feldman ordered the defense to provide this affidavit within 30 days.

So, what do you think?  Was this an appropriate ruling given the situation?  Or did the defendant deserve sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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.

ARMA/Forrester Survey: Only One in Eight Records Managers Trusts Their ESI – eDiscovery Trends

According to the Forrester Research and ARMA International Records Management Online Survey, Q3 2012, only 12 percent of records managers are “very confident” that, if challenged, their organization could demonstrate that their electronically stored information (ESI) is “accurate, accessible, complete and trustworthy”.  That’s less than one in eight.

The report, co-authored by ARMA and Forrester Research, contains the results of a survey of 354 records managers.

Some of the less than optimistic comments from the report include: “Records managers report abysmally low e-discovery confidence…This bleak data point represents an even lower e-discovery confidence rate than captured in past surveys…[S]urvey data show that integrated legal hold – a critical component needed for successful defensible disposition – is simply missing in organizations.”

And this: “Organizations aren’t sure of the business value or legal obligations to preserve content so they simply continue to accumulate digital debris, slowing down overtaxed systems, adding to storage costs, and posing potential additional litigation and investigation burdens over time.”

Some of the reasons cited as obstacles to improved records management include:

  • Poor systems integration – 74 percent of respondents;
  • Inadequate budget – 73 percent;
  • Lack of experienced staff – 64 percent;
  • Outdated policies or procedures – 55 percent; and
  • Lack of clear leadership – 54 percent.

So, what are organizations doing to address the obstacles?  Here are some indications:

  • 40 percent of survey respondents expect that their organization’s overall records management spending will increase at least 5% from 2012 to 2013;
  • 71 percent currently have implementation plans underway, or plans to implement records management technology within the next year;
  • 81 percent consider an improvement in records management policy consistency an important objective for their organization.

A copy of the report is available here from Forrester Research for $499.

Since, according to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months, you would think organizations would be making greater strides in implementing information governance programs.  Of course, many information governance industry initiatives are still in relative infancy, including the Information Governance Reference Model (IGRM) Project of the Electronic Discovery Reference Model (EDRM), which was started a mere two years ago (click here for information on their newest version).  It appears that organizations still have a long way to go to get their data under control.

So, what do you think?  What, if any, records management obstacles are your organization facing?  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.

Five Reasons to Outsource Litigation Support – eDiscovery Best Practices

When you’re Jackson Lewis and your firm’s national eDiscovery counsel is noted eDiscovery expert and founder of the new Electronic Discovery Best Practices (EDBP.com) (as well as previous thought leader interviewee on this blog) Ralph Losey, it would make sense that you would want to handle all of your litigation support work in house.  Right?  Wrong.

As Losey writes in the Law Technology News article Five Reasons to Outsource Litigation Support, in June, Jackson Lewis “decided to outsource to a vendor all of our nonlegal electronic data discovery work that our litigation support department had been providing to our clients.”  Losey identifies five reasons “[b]ased on our experience” why your organization should consider outsourcing.

  1. Core Competency: Losey asks the question “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”  Collection, forensic analysis, processing, database creation and other related tasks are highly technical, nonlegal tasks that are the core competency of eDiscovery vendors, not law firms.  Losey notes that aside from the outsourcing of document review, the eDiscovery market is not “engaged in the practice of law”.
  2. Complexity: Losey notes that eDiscovery work “is not equivalent to making copies, as some lawyers think, and should not be done in-house, especially when there are so many good companies that specialize in this kind of work.”  Would you go to a general practitioner for heart bypass surgery?  Some tasks are best performed by specialists.
  3. Cost Savings: Keeping a litigation support business staffed with qualified people and current with hardware and software technology is expensive – it also adds considerably to firm overhead.  Losey notes that you “cannot give lawyers yesterday’s technology and expect them to compete.”  Would you give your attorneys out of date books on state and federal statutes for practicing law?  He also says “you can leverage your mass buying power and negotiate a low rate for all of your clients” that use your selected vendor.  Frankly, I’m surprised more firms don’t consider this – it’s a win-win for all as many vendors are willing to discount services for continual business.
  4. Risk: Losey states that “[m]istakes can happen, especially when a firm is operating outside of its core competency” and that firms often build the risk into their rates, which can penalize clients who don’t use the nonlegal services.  Again, giving the work to the organization best qualified to perform the work – the eDiscovery vendor – only makes sense.
  5. Ethics: The Comment to ABA Model Rule of Professional Responsibility 5.7 says, “When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems.”  Just because “everyone does it” doesn’t make it right.  Losey notes that some ethical issues can be raised by outsourcing as well, but that’s true of any profession and that Jackson Lewis uses “whatever vendor the client wants” with direct billing from vendor to client.  Most vendors like that arrangement as well, it streamlines on time payment of invoices to the vendor for work performed.

So, what do you think?  How does your organization handle litigation support?  Do you outsource it or do you handle it in house?  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.

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded – eDiscovery Case Law

In Carrillo v. Schneider Logistics, Inc. (C.D. Cal. Oct. 5, 2012), California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”.  The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Sequence of Events of Defendant’s Discovery Failures

In this class action wage and hour case against the defendants (a Wal-Mart provider), the plaintiffs filed a Motion to Compel responses to the first set of requests for production of documents.  Here’s a sequence of events that led to the filing of the motion (all dates in 2012):

  • On February 1, plaintiffs propounded their First Set of Requests for Production of Documents to the defendant;
  • The defendant provided its initial responses on March 12 and supplemental responses on April 4;
  • The plaintiffs, believing that the defendant’s document production was incomplete, began a series of meet and confers with the defendant, and expressed concern that the defendant had not produced all responsive non-privileged documents;
  • On May 31, the plaintiffs filed a Motion to Compel regarding the defendant’s failure to produce documents relating to Wal-Mart and their alleged failure to conduct a proper search and produce responsive documents;
  • After the Court ordered the parties to further meet and confer, the parties resolved their dispute and submitted a proposed order, which resulted in the Court ordering the defendant to supplement its responses to the requests for production of documents and produce responsive documents, including those relating to Wal-Mart. The defendant was also ordered to produce a custodian of records and person most knowledgeable regarding Schneider’s document retention policies;
  • Following the Court’s Order, the defendant produced an additional 23,000 documents, many of which related to categories of documents the defendant previously claimed did not exist;
  • The defendant also designated two employees to address the defendant’s retention policies and its efforts to search for responsive documents. When these witnesses appeared for their depositions, however, they were unable to answer many basic questions regarding the defendant’s document retention policies and the defendant’s search for responsive documents;
  • On July 10, the plaintiffs deposed an area manager for the defendant who testified that she had deleted various emails, including reports, continued to delete documents up to the date of her deposition, and that she had never received an instruction advising her not to delete such emails;

This led the plaintiffs to file their Motion to Compel on August 23, as they identified a “substantial number of emails and surveillance videotapes which had not been produced”.

Judge Bristow’s Ruling

Noting that the “record reflects – at best – a haphazard search for records”, Judge Bristow stated that the defendant had “disregarded its obligation to conduct a reasonably diligent search for responsive documents, including, as explained below, electronically stored information.”  Noting that at least 20 employees of the defendant regularly used “@wal-mart.com” email accounts for conducting business, the judge also noted that the defendant had still not produced any emails from those accounts and discounted the defendant’s contention that it had “no control” over those documents since the defendant’s employees used the Wal-Mart email address as their primary work email account.  The judge also ruled that the defendant had withheld surveillance videotapes and that it had not taken adequate steps to preserve documents.

As a result, the defendant was ordered to retain an outside vendor to collect ESI and email correspondence within 45 days and produce all responsive videotapes within 10 days.  The plaintiff was given 11 days to file a brief detailing their claim for attorneys’ fees and costs, with the defendant having two weeks to respond regarding the reasonableness of the stated costs.  Judge Bristow did deny the plaintiff’s request for other sanctions without prejudice as “premature”.

So, what do you think?  Have you seen other cases where parties were ordered to retain an outside vendor?  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.

Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

As was the case in Mailhoit v. Home Depot previously, Ohio Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012) that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Background on Defendant’s Request

In this employment discrimination action where the plaintiff alleged that male supervisors, senior youth leaders, and coworkers sexually harassed her, the defendant filed a Motion to Compel in August to compel the plaintiff to give them her user names and passwords for each of the social media sites she uses.  The defendant contended that information on the plaintiff’s social media sites “may be relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional state”, indicating their belief that the plaintiff “is not currently impaired by serious emotional distress and is enjoying life”.

The plaintiff contended that the defendant’s discovery request was “overbroad and unduly burdensome” and that the defendant had “offered no evidence or other reason to back up” their speculation that there might be relevant information in the private sections of her social media sites.  The defendant countered that the plaintiff testified as to several impacts of the alleged sexual harassment and that she cannot regularly update her Facebook account, yet her Facebook public pages contained evidence that the plaintiff still regularly updates her account.

Judge Abel’s Ruling

Judge Abel acknowledged that “[r]elevant information in the private section of a social media account is discoverable”, but that “a litigant has no right to serve overbroad discovery requests that seek irrelevant information”.  Comparing the request of electronic social media data to that of hard copy documents, Judge Abel stated:

“The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files. Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”

Judge Abel did note that the plaintiff “remains under an obligation to preserve all the information” in her social media accounts, so the defendants would presumably be able to access that information through requests for specific relevant information.

So, what do you think?  How does this case compare to other cases (such as these three cases) where user names and passwords to social media sites were 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 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.

Does This Scare You? – eDiscovery Horrors!

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so every year we try to “scare” you in a different way instead.  Does this scare you?

The defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

What about this?

Even though the litigation hold letter from April 2008 was sent to the primary custodians, at least one principal was determined to have actively deleted relevant emails. Additionally, the plaintiffs made no effort to suspend the automatic destruction policy of emails, so emails that were deleted could not be recovered.  Ultimately, the court found that 9 of 14 key custodians had deleted relevant documents. After the defendants raised its spoliation concerns with the court, the plaintiffs continued to delete relevant information, including decommissioning and discarding an email server without preserving any of the relevant ESI.  As a result, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Or this?

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.

How about this?

There “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”

Or maybe this?

If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Scary, huh?  If the possibility of sanctions, exponential data growth and judges ordering parties to perform predictive coding keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

Those of you who are really mortified that the next post in Jane Gennarelli’s “Litigation 101” series won’t run this week, fear not – it will run tomorrow.

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.

Russell Taber: eDiscovery in Tennessee – eDiscovery Trends

We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI).  But, not all cases are Federal jurisdiction cases.  Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery.  One of those states is Tennessee.  Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.

Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III.  Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee.  His practice focuses on business litigation.  He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery).  Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University.  I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.

Why did you decide to write the book and what are you hoping for readers to learn from reading it?

First of all, thank you for the eDiscovery Daily Blog.  I’ve been a subscriber for some time and have benefitted from its insights.  Thank you also for taking the time for this interview.

I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues.  It begins with the premise: “The era of paper discovery in Tennessee is over.”  Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true.   Virtually all information is created electronically.  EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small.  Even so, eDiscovery can be very challenging, and the stakes can be high.  Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee.   Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.

As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009?  How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?

That’s right.   The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects.   For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue.  The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.

Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court.  Under the Tennessee rule, a judge first determines whether the ESI is subject to production.  If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.

Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?

Yes.  While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose.  In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.

Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc.  The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party.  The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.

Are there any plans to amend Tennessee rules for eDiscovery in the near future?  What do you expect to see in the eDiscovery landscape within the state over the next few years?

I’m not aware of any plans to amend the Tennessee rules for eDiscovery.  A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules).  I think there is a need for more uniformity in the eDiscovery rules in Tennessee.

We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery.  Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees.  These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.

For more information about the book, including the link on Amazon.com to purchase it, click here.

Thanks, Russell, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law

As reported in Ralph Losey’s e-Discovery Team® blog, Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012) – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

As Ralph notes, this “appears to be the first time a judge has required both sides of a dispute to use predictive coding when neither has asked for it. It may also be the first time a judge has ordered parties to use the same vendor.”  Vice Chancellor Laster’s instruction was as follows:

“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding.  I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor.  Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information.  If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.  The problem is that these types of indemnification claims can generate a huge amount of documents.  That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”

Ralph notes that there “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”  It will be interesting to see if either, or both party, proceeds to object and attempt to “show cause” as to why they shouldn’t use predictive coding.

So, what do you think?  Is this an isolated case or the start of a trend?  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.