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eDiscoveryDaily

eDiscovery Best Practices: After Production, Your eDiscovery Obligations Are Not Necessarily Over
 

While a number of attorneys have yet to still embrace and fully understand eDiscovery best practices, most at least understand that there are (since 2006) Federal Rules of Civil Procedure that address discovery of electronically stored information (ESI) and (for most, but not all) similar rules at the state level.  More are learning to conduct an initial discovery conference (a.k.a., “meet and confer”) with opposing counsel to address eDiscovery requirements at the beginning of a case and more now not only understand the requirements to preserve potentially responsive data once it is clear that litigation is imminent but also how to conduct the review and production in a defensible manner.  However, as noted in this Texas Lawyer article, How to Prepare for E-Discovery Supplementation Obligations (written by Ross Cunningham and published in Law Technology News), an attorney’s eDiscovery obligations are not necessarily over after production.

As the author notes, “six months to a year into the process, most lawyers forget a key obligation. Under Texas and federal rules, all parties have an ongoing duty to supplement discovery responses.”  Failure to meet ongoing obligations to continue to preserve data and periodically update searches to retrieve new information could – like any other failure to meet obligations – result in sanctions.

The author has created a clever acronym to address a party’s supplementation obligations: PREPARE.  Here are the components of that acronym:

  • Preserve: It’s not just important to issue the hold correctly, but also to periodically follow up on hold notices to keep custodians on notice of their obligation to continue to preserve the data in question until they are instructed that they can release it (which is also very important to ensure that information no longer subject to hold doesn’t continue to be preserved outside of the organization’s document retention policies).  Sometimes, the hold may need to be expanded to additional custodians as they case continues.
  • Research: The more the attorney knows about the case and the client, the better he/she will be able to assess whether custodians are continuing to create discoverable information throughout the case and manage supplementary eDiscovery obligations accordingly.
  • Execute: As the author notes, “[t]his means drafting an e-discovery plan — and sticking to it.”  Up front planning to meet with the client to identify all sources of ESI will help ensure a complete preservation and collection process and also create a “road map” for supplemental discovery.  However, it’s also important to periodically re-assess the plan and update it where appropriate as new custodians may be identified (or even hired).
  • Proactive: Educating the client on what goes into an eDiscovery plan and best practices for conducting that plan, along with education on the consequences for failing to comply (including sanctions) will help ensure a smooth eDiscovery process.  After all, the client knows their data better than the attorney ever will.
  • Ally: By allying with trusted providers who are involved from the planning stages, that provider should be reliable to support the supplemental eDiscovery process.
  • Recalibrate: No matter how prepared you are, you cannot always anticipate every situation, so you need to be prepared to adjust (“recalibrate”) the plan when unforeseen occurrences happen.  When you have a well thought out eDiscovery plan that is executed well, courts tend to be more forgiving of anomalies.
  • Expectations: Setting expectations with opposing counsel during the initial discovery conference will help determine whether discoverable information will continue to be created over the course of discovery and hopefully obtain agreement as to how often supplemental searches will be performed.

Of course, the order of these items might not fit the actual order of execution.  Research, Execute, Proactive, Expectations, Ally, Preserve, Recalibrate might be more appropriate.  But, REPEAPR doesn’t make nearly as catchy an algorithm!

So, what do you think?  Have you dealt with supplementary eDiscovery in any of your cases?  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.

eDiscovery Case Law: Court Orders eDiscovery Evidentiary Hearing When Parties Are Unable to Cooperate
 

A month ago, in Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 U.S. Dist. LEXIS 36893 (D. Kan. Mar. 20, 2012), Magistrate Judge David J. Waxse ordered an evidentiary hearing to discuss the sufficiency of the defendant’s search for ESI and format of production in response to the plaintiff’s motion to compel additional searching and production.

The case involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.  At a status conference, the parties had agreed to create a list of search terms in an attempt to resolve outstanding eDiscovery issues. However, the parties were unable to reach a consensus, and the plaintiffs filed a motion to compel the defendant to search for and produce ESI.

The plaintiffs’ Request for Production 1 requested the defendant to produce information from 10 individuals identified by the defendants with knowledge of the facts concerning the allegations in the complaint or answer; however, the defendants’ reply merely referred the plaintiffs to the complaints and personnel files of the plaintiffs.  In their motion to compel, the plaintiffs asserted that the defendant “failed to produce their written complaints, any emails or phone logs, the investigation files, and their personnel files”.  The plaintiffs also claimed that the defendant also “failed to produce responsive documents that one would expect to find in this type of litigation”, such as:

  • “emails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses”;
  • “notes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked”; and
  • “reports and emails to the corporate office regarding the complaints”.

The plaintiffs noted that, “It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.”  They also suggested that the defendant had searched for the agreed-upon search terms in Microsoft Outlook on the alleged harasser’s computer only and argued that the defendant should run a forensically sound search of “all computers used by employees of the facility and corporate office who participated in or were involved in Defendant’s investigation of the allegations”.

While noting that it “cannot determine whether Defendant met its duty to both preserve relevant evidence” (based upon the limited information provided in the parties’ briefing), the Court found that “Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiffs’ discovery requests.”  Therefore, the court set an evidentiary hearing for April 30, at which the defendant was instructed “to be prepared to present evidence on the following topics”:

  1. At the time of the initial charge of discrimination, what did Defendant’s system of creating and storing ESI consist of;
  2. When and how a litigation hold was instituted;
  3. What employees were notified of the litigation hold;
  4. What efforts were made to preserve ESI;
  5. What or whose computers or components of the computer systems were searched for responsive ESI;
  6. How the computers of computer information systems were searched (e.g., keyword searches, manual review, computer-assisted coding); and
  7. Who performed the searches.

So, what do you think?  Was the evidentiary hearing an appropriate next step?  Should more cases conduct eDiscovery evidentiary hearings when there are disputes?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Social Tech eDiscovery: Twitter Law Enforcement Policies Revisited
 

Back in January, we revisited Facebook’s Law Enforcement policies and found that they had changed quite a bit from the from the post we published back in September 2010 regarding those policies.

Private Information within Twitter

As most information in Twitter is publicly shared with everyone, private information kept within Twitter is limited.  From their Privacy Policy page, examples of information that is not public includes:

  • Email address;
  • Password;
  • Cell phone or address book (to enable Twitter to help you find Twitter users you know)
  • Location information (to track your location where you’re “tweeting” from); and
  • Log data (IP address, browser type, the referring domain, pages visited, your mobile carrier, device and application IDs, and search terms).

You can also set “Tweet privacy” so that only certain people will receive your “tweets” or send private messages through the direct message syntax in Twitter.  Sometimes, information meant to be private messages to one individual can be inadvertently published to all if you’re not careful – as former congressman Anthony Weiner found out (remember him?).  You can also now add photos to tweets directly in Twitter, which would be private if the tweets are private themselves (this does not apply to photos referenced in tweets stored on third party image providers like Flickr, Twitpic or yFrog).

Requesting Private Information from Twitter

If you’re considering requesting provide information from Twitter for litigation purposes, here is what you need to know (from the Guidelines for Law Enforcement page on the Twitter site):

  • Data Retention Information: Twitter doesn’t get very specific on its retention policies other than to say that it “retains different types of information for different time periods” and that “some information may only be stored for a very brief period of time”.  The Privacy Policy page does note that log data may be retained for up to 18 months.
  • Private Information Requires a Subpoena or Court Order: Non-public information about Twitter users is not released except “as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process”.  Twitter notes that they don’t “require email verification or identity authentication”, so the information may not be valid for fake or anonymous profiles.
  • Emergency Requests for Information: Twitter evaluates these on a case-by-case basis, but will usually provide the information if there is “a good faith belief that there is an emergency involving the death or serious physical injury to a person”, assuming they have it.  Emergency requests can be emailed to  lawenforcement@twitter.com.  Twitter notes that only email from law enforcement domains will be accepted and all others will be disregarded.
  • Requests from Non-U.S. Law Enforcement: Twitter will honor requests for user information from foreign law enforcement agencies if they are requested through a U.S. court.
  • Notifying Users of Information Requests: Twitter will notify users of requests for their information prior to disclosure unless they’re prohibited from doing so by statute or court order.
  • Information to Be Included in Requests: Requests must include the username and URL of the Twitter profile in question, details about the specific information being requested and its relationship to the investigation and a valid email address for them to acknowledge receipt of the legal request.
  • Methods for Requesting Information: Twitter only accepts legal process from law enforcement agencies delivered by mail or fax.  That’s a very 1970s restriction for an organization whose business it is to provide 21st century technology to its customers.

Now you know how to request private user information, provided you’re a law enforcement organization or have a subpoena or court order to serve them with.

So, what do you think?  Have you needed to request information from Twitter for litigation purposes?  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.

eDiscovery Case Law: Friday the 13th Is Unlucky for Judge Peck
 

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it 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 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.

This past Friday, April 13, the plaintiffs filed their formal motion, which included a Notice of Motion for Recusal or Disqualification, Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification and Declaration of Steven L. Wittels in Support of Plaintiffs’ Motion for Recusal or Disqualification.

In the 28 page Memorandum of Law, the plaintiffs made several arguments that they contended justified Judge Peck’s recusal in this case.  They included:

  • In the first conference over which Judge Peck presided on December 2, 2011, he remarked that Defendants “must have thought they died and went to Heaven” to have him assigned to this case and he subsequently repeated that remark in at least two public panels afterward.  In one of the panel appearances, he also (according to the plaintiffs) acknowledged that the plaintiffs’ only alternative was to ask him to recuse himself (in that same panel discussion, Judge Peck also quoted the plaintiff as saying “Oh no no, we’re ok with using computer-assisted review; we just had some questions about the exact process”).
  • In the second status conference held before Judge Peck on January 4, the plaintiffs noted that he encouraged the defendants to enlist the assistance of their eDiscovery counsel, Ralph Losey – whom Judge Peck claimed to know “very well.” During the next four weeks, Judge Peck served on three public panels with defense counsel Losey about predictive coding which the plaintiffs referred to as “ex parte contacts” where the plaintiffs were not informed.  Judge Peck also wrote an article last year entitled Search Forward, where, according to the plaintiffs, he “cited favorably to defense counsel Losey's blog post Go Fish” and Losey responded “in kind to Judge Peck‟s article by posting a blog entry, entitled Judge Peck Calls Upon Lawyers to Use Artificial Intelligence and Jason Barn[sic] Warns of a Dark Future of Information Burn-Out If We Don’t, where he embraced Judge Peck's position on predictive coding”.
  • One week after the LegalTech trade show, on February 8, the plaintiffs contended that “Judge Peck adopted Defendant MSL’s predictive coding protocol wholesale from the bench” and, on February 24 (link above), he issued the written order “[f]or the benefit of the Bar”.  Some of the materials cited were authored by Judge Peck, Ralph Losey, and Maura R. Grossman, eDiscovery counsel at Wachtell, Lipton, Rosen & Katz, all of whom served together on the panel at LegalTech.
  • The plaintiffs also noted that Judge Peck “confirms that he received, at a minimum, transportation, lodging, and meals free of cost for no less than 10 appearances at eDiscovery conferences in 2010” and did not disclose this compensation (or compensation for similar appearances in 2011 and 2012) to the plaintiffs.  They also noted that Judge Peck failed to inform them of Recommind’s sponsorship of the LegalTech conference where Judge Peck participated on panel discussions regarding predictive coding.

Regardless whether Judge Peck is partial or not, the plaintiffs argued in the Memorandum that “§ 455(a) requires a judge‟s recusal for the mere appearance of impropriety or partiality – i.e. if a reasonable outsider might entertain a plausible suspicion or doubt as to the judge‟s impartiality”.

In his order on April 5, Judge Peck noted that the “defendants will have 14 days to respond”, so it will be interesting to see if they do and what that response entails.  They will certainly have some bold statements to address from the plaintiffs if they do respond.

So, what do you think?  Do the plaintiffs make a valid argument for recusal?  Or is this just a case of “sour grapes” on their part for disagreeing, not with predictive coding in general, but the specific approach to predictive coding addressed in Judge Peck’s order of February 24?  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.

eDiscovery Careers: Achieving Success as a Non-Attorney in a Law Firm — Introduction
 

In the 30+ years that I’ve been working in litigation, I’ve seen a dramatic change in law firm culture and operations.  Let me start with what it was like way back when:

  • Law firms thrived simply by having talented attorneys with winning records.
  • Law firms got business based almost exclusively on the relationships that partners had with clients.
  • It didn’t matter if law firms were behind the rest of the world with regard to technology use.  Clients didn’t care.
  • Clients didn’t pay too much attention to bills.  Attorneys were expensive and that’s just the way it was.

This meant that law firms didn’t have to operate efficiently.  They did legal work, they billed their clients, they got paid, and they got more business.

How times have changed!  Here’s what it’s like today:

  • Clients pay close attention to the costs of legal representation. 
  • Clients want to know how much legal services will cost.  They want to know what they’ll be paying for.  They want to know what type of people will be working on their cases and how much those people cost. 
  • Clients dictate what they will pay for and what they won’t.
  • Clients want to know what technology will be used.   
  • Clients scrutinize bills and they question costs that they think are excessive or didn’t expect

In short, clients have forced law firms to be competitive, to do marketing, and – most significantly – to be efficient.  Clients are forcing law firms to operate like the rest of the business world.

This shift in operations and culture means more opportunities for non-attorney professionals.  Law firms today need more than talented attorneys.  They also need talented business, technology, and marketing professionals.

Today, I see more and more non-attorneys attaining senior level positions and high compensation levels in law firms.  I see non-attorneys treated as equals by senior partners in law firms.  I have also, though, seen very talented people who haven’t climbed that ladder of success in a law firm.  The difference doesn’t always come down to knowledge and skills.  To achieve that success, we have to do more than be good at our jobs.  That’s what I’ll be focusing on in this blog series.  I’ll walk you through some steps you can take and techniques you can employ that will increase your odds of grabbing that brass ring. Specifically, we’ll cover six general topics:

  1. Find/make the right environment
  2. Know your stuff
  3. Make yourself well-known
  4. Make yourself critical
  5. Expand what you do
  6. Master some good habits

Next week, we will begin talking about finding/making the right environment.  See you then!

So, what do you think?  Have you gotten to the position you’ve sought in your firm?  Do you have tips you can share?  Please let us know 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.

eDiscovery Case Law: The Other Technology Assisted Review Case
 

We’ve covered the Da Silva Moore case quite a bit over the past few weeks (with posts here, here, here and here), but that’s not the only case where technology assisted review is currently being considered and debated.  On February 21, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as "content-based advanced analytics," or CBAA) in their production of documents for discovery purposes.

In their filing, the plaintiffs claimed that “[t]he large disparity between the effectiveness of [the computer-assisted coding] methodology and Boolean keyword search methodology demonstrates that Defendants cannot establish that their proposed [keyword] search methodology is reasonable and adequate as they are required.”  Citing studies conducted between 1994 and 2011 claimed to demonstrate the superiority of computer-assisted review over keyword approaches, the plaintiffs claimed that computer-assisted coding retrieved for production “70 percent (worst case) of responsive documents rather than no more than 24 percent (best case) for Defendants’ Boolean, keyword search.”

In their filing, the defendants contended that the plaintiffs "provided no legitimate reason that this Court should deviate here from reliable, recognized, and established discovery practices" in favor of their "unproven" CBAA methods. The defendants also emphasized that they have "tested, independently validated, and implemented a search term methodology that is wholly consistent with the case law around the nation and that more than satisfies the ESI production guidelines endorsed by the Seventh Circuit and the Sedona Conference." Having (according to their briefing) already produced more than one million pages of documents using their search methods, the defendants conveyed outrage that the plaintiffs would ask the court to "establish a new and radically different ESI standard for cases in this District."

The defendants also cited Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, a 2007 publication from The Sedona Conference (available for download here), which includes a quote from a 2004 federal district court opinion, saying "by far the most commonly used search methodology today is the use of 'keyword searches.'" The defendants also stated that the plaintiffs cited no case with a ruling to use computer-assisted review.  True at the time, the Da Silva Moore ruling by Judge Andrew Peck approving the use of technology assisted review was issued just three days later.

The hearing was continued to April, and it will be interesting to see whether Magistrate Judge Nolan will require, over objection, the use of computer-assisted review for the review and production of electronically stored information in this case. Based on the disputes we’ve seen in the first two cases (Da Silva Moore and Kleen Products) contemplating the use of technology assisted review, it appears that the acceptance curve for technology assisted review processes will be a rocky one.

So, what do you think?  Should Judge Nolan rule in favor of the plaintiffs, or have the defendants done enough to ensure a complete and accurate production?  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.

eDiscovery Best Practices: See Jane Teach – How To Manage Litigation Projects
 

One major problem that many organizations are facing these days in large-scale litigation is that the demand for project managers far exceeds the supply.  Law firms find themselves moving talented — but inexperienced — professionals into project management positions. Electronic discovery experts, litigation paralegals, technically savvy litigation support professionals, and even attorneys are taking on project management responsibilities with little experience or training.

You may have noticed we haven’t had any new posts from Jane Gennarelli lately.  Believe it or not, we all have “day jobs” here at eDiscoveryDaily and Jane’s “day job” is as principal of Magellan’s Law Corporation> where she has been assisting litigators in effectively handling discovery materials for over 30 years.  In that role, Jane has been busy lately with a Magellan's Law training program for aspiring litigation project managers.

Magellan’s Law Project Management training program is designed for project managers who need help to develop expertise on project management best practices.  The project management skills, components, and techniques covered in the class will prepare students to manage any of the document handling tasks associated with litigation discovery – everything from identification and collection through production.  Among other things, students learn:

  • Project management tasks in discovery
  • Skills and techniques for managing project staff
  • Skills and techniques for managing clients
  • How to prepare reliable schedules and budgets
  • Mechanisms for controlling costs throughout a project
  • Techniques for ensuring high-quality and defensible work product
  • Tips for effectively managing time
  • How to build good relationships with clients and project stakeholders
  • Problem solving techniques and skills
  • How to evaluate, select and manage the right vendors for a project

The class is taught at your facility, at your convenience, so Jane comes to you!  To find out more about the class, click here.  You can also give Jane a call @ (210)561-5626 to find out more.  She can put you in touch with students who have taken the class to enable you to hear firsthand from people in the trenches who have benefitted from the class.

As for Jane’s contribution to eDiscovery Daily, she will be publishing a new series to provide best practices for non-attorneys providing litigation and eDiscovery support services to achieve success in a law firm.  This series should debut in the next week or so.  Welcome back, Jane!

So, what do you think?  Do you feel overwhelmed trying to manage litigation and eDiscovery projects?  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.

eDiscovery Case Law: Better Late Than Never? Not With Discovery.
 

In Techsavies, LLC v. WFDA Mktg., Inc., 2011 U.S. Dist. LEXIS 152833 (N.D. Cal. Feb. 23, 2012), Magistrate Judge Bernard Zimmerman of the United States District Court for the District of Northern California sanctioned the defendant for repeated failures to produce responsive documents in a timely manner because of their failure to identify relevant data sources in preparing its initial disclosures.

The defendant produced approximately 32,000 documents in response to production requests on August 20, 2010. Five days later, the defendant sent plaintiffs a supplemental production of 1,100 documents, and notified them by letter that its document production was complete.  Over the next three months, the plaintiffs informed the defendant multiple times that there were omissions in their production, including following up with another production request on November 1.  On November 29, two days before the close of discovery, defendants produced roughly an additional 87,000 documents, yet the plaintiff still noticed that some documents were missing and notified the defendants.

Following the second incomplete production, defendants investigated and discovered that several data backup files were never provided to the eDiscovery vendor.  They also discovered a 4 to 6 inch stack of relevant documents in the basement of a former office building that had been forgotten.  Those additional documents were produced approximately ten days after the close of discovery.  The plaintiffs sought sanctions for the late production including “establishing that the minimum gross revenues attributable to Project632 are twice the credit card transactions through the site since its inception, given WDFA's failure to produce complete information regarding the co-payments received from MetroPCS”, as well as barring them “from offering any evidence of deduction or offset from that figure” and precluding their experts from using the late produced documents.

With regard to the late production, Judge Zimmerman noted:

“Pretrial Scheduling Order (Docket No. 20) also requires that ‘[t]hirty days prior to the close of non-expert discovery, lead counsel for each party shall serve and file a certification that all supplementation has been completed.’ WDFA did not file such a certification. Instead, WDFA improperly produced its late documents as well as its interrogatory response after fact discovery closed and without obtaining leave from the Court…[I]t appears to be an issue of first impression whether a party can correct its discovery responses after the close of discovery without seeking leave of Court. In my opinion, absent an approved stipulation, allowing one party to correct prior discovery responses without seeking leave of Court undermines the Court's ability to control the timely production of documents and assure that discovery issues are resolved in a timely fashion so as not to interfere with the impending trial.”

Judge Zimmerman also noted, however, that sanctions sought by the plaintiffs were “too broad” and “would be tantamount to giving Techsavies a directed verdict on many if not all of the damages issues”.  The court did grant the following sanctions against the defendant:

“1. WDFA is barred from introducing, either in defense of plaintiff's claims or in support of its counterclaims, any document which it should have produced in response to plaintiff's first set of document requests and which was not produced until after plaintiff filed its second set of document requests.”

“2. WDFA's expert witnesses cannot rely on any document, or information contained in any document, that is precluded by this Order unless WDFA can show that the information on which the witness relied was provided timely to Techsavies in some other form of discovery.”

So, what do you think?  Should the judge have allowed the late production?  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.

eDiscovery Best Practices: First Name Searches Are Not Always Proper

I’ve worked with numerous clients over the years and provided assistance regarding searching best practices to maximize recall without sacrificing search precision, including the use of fuzzy and synonym searches to identify additional potentially responsive files and sampling to test the effectiveness of searches.  In several cases, the initial list of proposed search terms sent to me by the client includes first names of several individuals to search for as standalone terms.  Unfortunately, first names don’t always make the best search terms.

Why?  Because, in many cases, the first names are so common that they can apply to several people, not just the desired individuals to be retrieved.  Depending on the size of the collection, searching for names like “Bob”, “Bill”, “Cathy”, “Jim”, “Karen” or “Pat” could retrieve many additional files to be reviewed for numerous individuals other than those specifically sought, potentially driving up review costs unnecessarily.

Another issue with first name searches is the potential variations in first names that must be included to ensure that retrieval is complete.  Take this name, for example:

“Billy Bob Byrd”

To adequately perform a first name search, your search might need to include the following: “Billy”, “Bill”, “William”, “WR” (for “William Robert”), “Bob”, “Bobby”, “Robert” and maybe even “BB” (or “BBB”).  Searching for all these terms could yield many additional hits that are probably not responsive, costing time and money to review.  While emails and other informal communications may just refer to him as “Billy Bob”, more formalized communications such as financial documents would probably refer to his name differently.  So, it’s important to include all potential variations, several of which could add considerably more false hits.

You also have the potential that the name might also have another meaning.  For example, “Bill” can be a person’s name, but “bill” is another word for invoice (keep in mind that most search engines are case insensitive, so it doesn’t matter if it’s capitalized or not).  So, searching for “bill” as a person would also yield every instance where an invoice is referred to as a “bill”.

With that in mind, it’s important to get the complete names of the people you’re searching for, as well as any known nicknames, so that you can then make decisions on the best terms to use to retrieve the most hits for each person.  Consider these names:

  • Terry Bradshaw: “Terry” is a fairly common name, so I might opt to search for “Bradshaw” first and see what I get.  Or, to limit further, retrieve only documents where both “Terry” and “Bradshaw” are both mentioned.
  • Jay Leno: Same here, “Jay” is common, “Leno” is more unique.
  • Jennifer Lopez: “Jennifer” is more common than “Lopez”, though both are fairly common.  I would search for “Lopez” first, but assuming that the client provided the nickname “JLo”, I would search for that alternative also (if not, that would hopefully fall out during review as an additional term to search for).
  • Shaquille O’Neal: This is one case where the first name is actually more unusual than the last name, so I might prefer to search for “Shaquille” and would also search for the nickname of “Shaq”.

Of course, there may be occasions where only the first name is mentioned in a document without the last name.  If you can, try to combine with some other criteria to refine the broad search for the first name, such as email address of the individual in question or email addresses of those most likely to be talking about that individual.

What about the instances where both the first and last names are common?  What about my name, “Doug Austin”?  “Doug” isn’t an extremely common first name, but it’s somewhat common, and “Austin” is the name of a city.  Searching for either term by itself could be overbroad.  So, it makes sense to try to combine them.  To do so in a phrase search, however, could be limiting as searching for “Doug Austin” could miss occurrences of “Austin, Doug”.  Conducting the search as a proximity search (e.g., “Doug within 3 words of Austin”) will catch variations, regardless of order.

This is just one example why keyword searching isn’t an exact science.  These aren’t necessarily hard and fast rules and each situation is different.  It’s important to randomly sample and test search terms to ensure an appropriate balance of recall and precision.  Of course, parties sometimes agree that it may be necessary to include first names as standalone terms, even when they are common and may retrieve a high number of additional files that are not responsive, though testing those terms before negotiating with opposing counsel can help you to be prepared to negotiate a more favorable set of terms.

So, what do you think?  Do your search term lists include standalone first names?  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.

eDiscovery Trends: Rules Changes for Spoliation Could Come as Soon as 2013
 

With cases related to preservation and spoliation issues continuing to be prevalent, as well as continued greater emphasis on proportionality in eDiscovery, the Advisory Committee on the Federal Rules of Civil Procedure has requested comments on possible changes to the federal rules relating to preservation and spoliation of evidence.  Much of the framework for the proposed rules was derived from Judge Shira Scheindlin's opinions on eDiscovery, particularly those in the Zubulake case.  These changes could be finalized as soon as December 2013.

As there are currently no rules governing preservation, courts have set their own guidelines – not always consistently from court to court. The hope is that establishment of rules regulating preservation and spoliation will clarify expectations and standardize practices.  Invited by the advisory committee to provide suggestions, the special committee has proposed new Rule 26(h), which specifies that the duty to preserve ESI arises when a subpoena is received by a non-party, or when a person becomes aware of facts that would lead a reasonable person to expect to become a party to an action. That duty remains in effect for all existing and subsequently created documents or ESI until the termination of the involvement of the party or non-party, or until a person becomes aware of facts that would lead a reasonable person to believe that he or she will not become a party to an action.

A person whose duty to preserve has been triggered must take steps to preserve discoverable documents and ESI, and must consider several factors, including:

  • Importance of the information;
  • Amount in controversy; and
  • Burden and expense to preserve in a form as close to (if not identical to) their original condition as possible.

In addition, new Rule 37(g) has been proposed which identifies a variety of penalties to be imposed, depending on the level of culpability of the spoliating party and the remedial requirements necessary to the case, taking into account the importance of the information lost to the party seeking its discovery.

While the advisory committee decided not to pursue any rule change dealing with preservation back in November, they have continued to pursue those dealing with penalties for spoliation.  However, during the discussion process for preservation rules, standard expectations for preservation of evidence included the issuance of a written litigation hold to key players in an organization most likely to possess documents or ESI that will be important in a case, with the hold to be periodically reviewed and renewed.  Eventual rules for preservation would be expected to include such provisions.

As for spoliation, the advisory committee considered the proposed new rule regarding penalties for spoliation at its meeting on March 22.

The advisory committee has also drafted proposed amendments to Rule 45 concerning serving of subpoenas. Proposed changes include abolishing the requirement that a discovery subpoena be issued in the same court where compliance of the subpoena is expected. Instead, nationwide service of process will be implemented, so, for example a discovery subpoena for a case pending in the Eastern District of Texas would be valid in the Southern District of New York. The subpoenaed party can choose the subpoena to be enforced in the district where compliance is to be made or in the trial court.  Out-of-state parties (or an officer of those parties) can be compelled to travel more than 100 miles to testify at trial if good cause is shown for them to do so. Changes are also proposed requiring that all parties receive notice on the service of a subpoena to a non-party.

The advisory committee decided on revisions to Rule 45 back on March 22. By May 1, the advisory committee will submit its recommendations regarding spoliation and Rule 45 to the federal Standing Committee. The federal Standing Committee is expected to approve the recommendations in June and submit them to the federal Judicial Conference. Assuming the Judicial Conference approves the proposal at its September 2012 meeting, they will transmit it to the US Supreme Court, which will have until May 1 of next year to transmit the proposal to Congress. If Congress does not act, the proposal would become rule on December 1, 2013.

So, what do you think?  Will these rules changes benefit the eDiscovery process?  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.