Close
Enter your
text here

eDiscoveryDaily

eDiscovery Case Law: Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers
 

In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, No. 2:12-cv-00059-KJD-VCF, (D. Nev. Apr. 6, 2012), Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

The plaintiff filed this motion after discovering that the defendants appeared to be tampering with the plaintiff’s computers. One of the defendants previously had been an employee of the company where he was responsible for the plaintiff company’s computer server and network services. The plaintiff alleged that he had created a “back door” to the company server that allowed him to access and alter confidential company information, such as business plans and financial, customer, and trade secret information. The other defendant, also the plaintiff’s former employee, appeared to have in her possession confidential information, as she stated she knew what the plaintiff company was writing in e-mails about her and she had—in a prior lawsuit—produced company e-mails that were neither to nor from her.

Judge Ferenbach considered the plaintiff’s motion for expedited discovery under the applicable rule that although pursuant to the Federal Rule of Civil Procedure 26(d), generally a party may not seek discovery from any source before the parties have held a Rule 26(f) conference, a court may permit expedited discovery upon a showing of good cause. Judge Ferenbach found good cause here “based on plaintiff’s allegations that defendants have access to plaintiff’s computer server, defendants have been deleting files and relevant evidence, and that evidence of their conduct, which is central to the litigation, will be erased through normal use of defendants’ computer . . . .”

In reviewing the plaintiff’s request that the court enter a mirror-imaging order, Judge Ferenbach pointed out that all information stored on a computer is discoverable, except where the request for production imposes an undue burden and expense and/or constitutes an invasion of privileged or private matter. Judge Ferenbach found no such undue burden or invasion would occur by applying and analyzing the facts against a five-pronged test:

(1) “The needs of the case” prong was met because information on the defendants’ computers was directly relevant and had to remain unaltered for the case to be litigated fairly.

(2) “The amount in controversy” prong was satisfied because the plaintiff had alleged it had suffered at least $75,000 in damages.

(3) “The importance of the issues at stake” prong was satisfied because the plaintiff had alleged the case involved the defendants’ accessing information involving business strategy, confidential customer information, and trade secrets, and the court acknowledged it had a responsibility to protect against the dissemination and misuse of such information.

(4) “The potential for finding relevant material” prong was met because the contents of the defendants’ computers were at the center of the case.

(5) “The importance of the proposed discovery in resolving the issues” prong was met because the documents and information at issue could not be produced another way.

Furthermore, the court noted, ordering mirror imaging would not result in undue expense to the defendants as the plaintiffs were paying the costs. The court additionally took measures to protect the defendants’ privacy and privilege interests by structuring the order so that a neutral computer expert would perform the mirror imaging, the expert would serve as an officer of the court, and the mirror image would be held in a sealed envelope in the clerk of court’s office until the conclusion of litigation, unless the plaintiff had reason to believe spoliation of evidence had occurred. At that time, the plaintiff could move the court for access to the mirror image.

Judge Ferenbach declined to enter a preservation order or issue a temporary injunction. He found a preservation order unnecessary because a duty existed to preserve evidence because “litigants owe an ‘uncompromising duty to preserve’ what they know or reasonably should know will be relevant evidence in a pending lawsuit,” and the complaint against the defendants and the information contained on the defendants’ computers was directly relevant to the suit against them. Judge Ferenbach found the preliminary injunction unnecessary because it ordered mirror imaging.

So, what do you think?  Were the mirror-images warranted?  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).

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: For an Appropriate eDiscovery Outcome, Call the Master
 

Special Master, that is.

Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here).  Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases.  A few highlights:

  • Appointing a Special Master: In Federal cases, Fed. R. Civ. P. 53 discusses the ability for a court to appoint a master with the parties’ consent.  Several states also have equivalent rules, for example, Rule 171 of the Texas Rules of Civil Procedure governs the ability to do so in Texas.
  • Circumstances Where Special Master is Most Often Required: Special masters are typically called in when special knowledge is required that neither party (nor their experts) possesses, or when one party is suspected of malfeasance.  Craig estimated that about half of the thirty cases where he has been retained have been because of suspected malfeasance by one party.  From an expertise standpoint, Craig noted that he most often fills this role related to a computer forensics need.
  • To Be “Special”, You Need to “Master” More than One Skill: Special masters need not only to be able to understand the law, they also need to understand systems, forms of ESI, mechanisms for preservation and formats of production.  In other words, they need the ability to “speak Geek”.
  • Special Masters Are Different From Mediators: A mediator’s job is to obtain agreement between parties.  While a special master may also do that to a degree, he/she must also apply good sense to the situation.  Craig’s analogy was that “just because both lawyers believe that they can fly” doesn’t mean that the special master should concur with that agreement.
  • Why Not Rely on the Judge for Such Services?:  Craig noted that many judges don’t have the technical expertise to adequately address all eDiscovery issues, so a special master can be called upon to provide recommendations regarding those issues to the Court.
  • Special Masters Are, Unsurprisingly, Not Free: Typically, they charge “senior partner” rates, reflecting their advanced level of expertise and experience.  Who pays?  It depends on the case, but potential malfeasance by a party can slant the costs to that party.  Special masters add value that can result in potentially significant cost savings to one or both parties, so they typically recoup those costs (and, often, a lot more).

The webcast also referenced two articles related to the subject of special masters and eDiscovery:

  • E‐Discovery: A Special Master's Perspective: Written by Craig himself, this nine page article talks about the pros and cons of Special Masters, the eight questions that lawyers need to be able to answer when working with special masters and the three typical reasons that eDiscovery fails, among other topics.  It also provides a terrific appendix with a two page Exemplar ESI Special Master Appointment Order.
  • Special Masters and e-Discovery: The Intersection of Two Recent Revisions to Federal Rules of Civil Procedure: This fifty-nine page article was written by The Honorable Shira A. Scheindlin (United States District Judge for the Southern District of New York and presiding judge of the notable Zubulake v. UBS Warburg case) & Jonathan M. Redgrave (founding partner of the firm of Redgrave, Daley, Ragan & Wagner and Chair Emeritus of The Sedona Conference’s® Working Group on Best Practices for Electronic Document Retention and Production).  It discusses the changes to Rule 53, governing the appointment of special masters and the changes to the Federal Rules for eDiscovery, suggesting appropriate uses for special masters for legal and technical issues.

If you missed the webcast (which is too bad, because Craig was entertaining and informative, as always), these articles provide good information on the use of special masters in eDiscovery.

So, what do you think?  Have you ever used a special master to address eDiscovery issues?  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 BREAKING Case Law: Judge Carter Upholds Judge Peck’s Predictive Coding Order

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.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck.

Now, on April 25 (signed two days ago and filed yesterday), Judge Carter has issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.  In the opinion and order, Judge Carter noted:

“[T]he Court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software. The Court has thoroughly reviewed the ESI protocol along with the parties’ submissions.  At the outset, the Court notes that Plaintiffs and Judge Peck disagree about the scope of Plaintiffs’ acquiescence concerning the use of the method. Judge Peck’s written order states that Plaintiffs have consented to its use, (Opinion and Order at 17 (“The decision to allow computer-assisted review in this case was relatively easy – the parties agreed to its use (although disagreed about how best to implement such review.”))), while Plaintiffs argue that Judge Peck’s order mischaracterizes their position (Pl. Reply, dated March 19, 2012, at 4-5). Nevertheless, the confusion is immaterial because the ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs. It provides that the search methods will be carefully crafted and tested for quality assurance, with Plaintiffs participating in their implementation. For example, Plaintiffs’ counsel may provide keywords and review the documents and the issue coding before the production is made. If there is a concern with the relevance of the culled documents, the parties may raise the issue before Judge Peck before the final production. Further, upon the receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method. At this stage, there is insufficient evidence to conclude that the use of the predictive coding software will deny Plaintiffs access to liberal discovery. “

“Plaintiffs’ arguments concerning the reliability of the method are also premature. It is difficult to ascertain that the predictive software is less reliable than the traditional keyword search. Experts were present during the February 8 conference and Judge Peck heard from these experts. The lack of a formal evidentiary hearing at the conference is a minor issue because if the method appears unreliable as the litigation continues and the parties continue to dispute its effectiveness, the Magistrate Judge may then conduct an evidentiary hearing. Judge Peck is in the best position to determine when and if an evidentiary hearing is required and the exercise of his discretion is not contrary to law. Judge Peck has ruled that if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge. The Court understands that the majority of documentary evidence has to be produced by MSLGroup and that Plaintiffs do not have many documents of their own. If the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative.”

“There simply is no review tool that guarantees perfection. The parties and Judge Peck have acknowledged that there are risks inherent in any method of reviewing electronic documents. Manual review with keyword searches is costly, though appropriate in certain situations. However, even if all parties here were willing to entertain the notion of manually reviewing the documents, such review is prone to human error and marred with inconsistencies from the various attorneys’ determination of whether a document is responsive. Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The Court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law. Thus, Judge Peck’s orders are adopted and Plaintiffs’ objections are denied.”

So, what do you think?  Will this settle the issue?  Or will the plaintiffs attempt another strategy to derail the approved predictive coding plan?  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: Is the Third Time the Charm for Technology Assisted Review?
 

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  Or, so we thought.  Now, the plaintiff has objected to the plan and even formally requested the recusal of Judge Peck.  Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have 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, and that request is currently being considered.  Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

In Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Virginia State Circuit Court Judge James H. Chamblin ordered that the defendants can use predictive coding for discovery in this case, despite the plaintiff's objections that the technology is not as effective as human review.  The order was issued after the defendants issued a motion requesting either that predictive coding technology be allowed in the case or that the plaintiffs pay any additional costs associated with traditional review.  The defendant has an 8 terabyte data set that they are hoping to reduce to a few hundred gigabytes through advanced culling techniques.

In ruling, Judge Chamblin noted: “Having heard argument with regard to the Motion of Landow Aviation Limited Partnership, Landow Aviation I, Inc., and Landow Company Builders, Inc., pursuant to Virginia Rules of Supreme Court 4:1(b) and (c) and 4:15, it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of processing and production of electronically stored information.”

Judge Chamblin’s order specified 60 days for processing, and another 60 days for production and noted that the receiving party will still be able to question "the completeness of the contents of the production or the ongoing use of predictive coding."  (Editor’s note: I would have included the entire quote, but it’s handwritten and Judge Chamblin has handwriting almost as bad as mine!)

As in the other cases, it will be interesting to see what happens next.  Will the plaintiff attempt to appeal or even attempt a Da Silva-like push for recusal of the Judge?  Or will they accept the decision and gear their efforts toward scrutinizing the resulting production?  Stay tuned.

So, what do you think?  Will this be the landmark case that becomes the first court-approved use of technology assisted review?  Or will the parties continue to “fight it out”?  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: Find/Make the Right Environment, Part 1
 

Last week, I introduced a new series regarding achieving success as a non-attorney in a law firm.  One key to achieving success is being in an environment that permits it. In the next posts I’m going to talk about the type of environment that fosters growth and success. Let me make it very clear, however, that I am NOT suggesting you look at these posts and decide that it’s time to call a recruiter! There are a few things you should keep in mind as you read the first few posts in this series:

  • It is unlikely that any firm is going to be the perfect environment.
  • Even if you determine your firm may not be the best place to attain your ultimate goals, it may be exactly what you need today.  It may be the right place to develop essential skills that you’ll need.
  • If things aren’t in place at your firm today that would make it the right environment, that could be an opportunity rather than a negative. I’ll expand on that a bit later in the series.

So, my purpose in talking about “the right environment” is not to encourage you to start shopping around.  I’m discussing this so that if and when the time does come for you to move on, you can use these points as a guide for assessing firms you are considering:

  1. How significant is the litigation practice to the firm?  If litigation is a small part of the firm’s overall practice, that could hinder your chance for senior level status.  You’ve got a better chance of being noticed if you are working in a practice area that is very significant to the firm.
  2. How widely used is technology in the firm?  This is becoming less and less of an issue — especially at large firms.  Occasionally, however, I still run into firms that have a fair number of attorneys who just don’t want to use technology.  Don’t be concerned specifically about the use of litigation support technology.  If the attorneys are technically solid otherwise, this could be an opportunity rather than a negative.
  3. How aggressive is the firm’s marketing?  This is an indication that the firm recognizes the need to be competitive and has taken steps to do so.  Does the firm highlight litigation support and electronic discovery services in its marketing to potential clients?  If it doesn’t, this might be an opportunity rather than a negative.

Tomorrow, we’ll continue with additional things to look at when assessing an environment. So, what do you think?  Do you have suggestions for what to look for?  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 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.