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eDiscoveryDaily

eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous

In United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, (S.D.N.Y. Nov. 4, 2011), defendants’ motion to have the Government in a criminal antitrust conspiracy case organize and format its discovery production to indicate which of four categories of collusion each document or electronic file related to was denied. The Government was “under no general obligation to identify or sort Brady material within even an extremely voluminous disclosure.”

Defendants were charged with conspiring to rig bids and fix prices on municipal derivatives. They asked for an order requiring the Government “to produce discrete collections of documents and electronic files that relate to four categories of transactions, and that such production be organized and formatted so as to indicate to which of those four categories each document or electronic file relates.” Defendants contended that the categories correlated to different aspects of the Government’s theory of collusion and that the categorization of overt acts that the Government was expected to prove at trial “would be useful to impeach the testimony of cooperating witnesses who will testify as to Defendants’ intent in entering into the Featured Transactions.”

The court denied defendants’ motion. Brady materials already produced to defendants in mostly searchable format did not have to be produced again “in categorized batches” relating “to transactions with certain characteristics.” The court stated: “Absent prosecutorial misconduct — bad faith or deliberate efforts to knowingly hide Brady material — the Government’s use of ‘open file’ disclosures, even when the material disclosed is voluminous, does not run afoul of Brady.” While the court acknowledged its discretion regarding defendants’ motion, the Government had provided searchable electronic documents, defendants had corporate assistance and could assist in their own defense since they were not being incarcerated before trial, and each defendant was represented by “prominent, sophisticated counsel.” The collapse of the law firm serving as the technical coordinator for the defendants’ discovery review platform “while unfortunate, does not alter the inescapable conclusion here: Defendants are anything but impoverished and certainly not so incapacitated as to warrant shifting such a substantial portion of the burden of preparing their defense to the Government.”

So, what do you think?  Was that an appropriate ruling, given the volume of ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery
 

Sometimes, it does take an “act of Congress” to get things done.

On December 13, a key subcommittee of the House of Representatives will conduct hearings regarding “The Costs and Burdens of Civil Discovery”.  The 10-member House Constitution Subcommittee led by Chairman Trent Franks (R. AZ) will hear from various witnesses regarding these issues — the first such hearing since the rules were last updated in December 2006.

Since the new rules took effect five years ago, sanctions for discovery violations have increased exponentially. A 2010 study published in the Duke Law Journal (and reported in this blog one year ago today) found that there were more eDiscovery sanction cases (97) and more eDiscovery sanction awards (46) in 2009 than in any prior year – more than in all years prior to 2005 combined!!

The hearings were originally scheduled for earlier this month, on November 16.  According to the Lawyers for Civil Justice web site (which has not yet been updated to reflect the new hearings date), the hearings are expected to cover:

  • Scope and dimensions of the problems with the federal litigation system;
  • Costs and burdens faced by litigants particularly in the areas of preservation and discovery of information;
  • The impact of those costs and burdens on the American economy and the competitiveness of American companies;
  • The magnitude of the cost savings that would better be spent on improving products and services and creating jobs; and
  • Expressions of support for the Judicial Conference Committee on Practice and Procedure’s primary responsibility to develop rule based solutions that would help relieve some of those costs and burdens, increase efficiency, and improve access to the federal court system (more on their recent efforts and meeting here).

Scheduled witnesses include:

  • Rebecca Love Kourlis, former Colorado Supreme Court Justice, now Director of the Institute for the Advancement of the American Legal System;
  • William H.J. Hubbard, Assistant Professor of Law. University of Chicago Law School;
  • Thomas H. Hill, Senior Executive Counsel, Environmental Litigation & Legal Policy, General Electric Company; and
  • William P. Butterfield, Hausfeld LLP, plaintiff class action counsel.

According to the International Data Corporation (IDC), the amount of digital information created, captured and replicated in the world as of 2002 was 5 exabytes (5 billion gigabytes), rising to 988 exabytes by 2010 (nearly a 20,000% increase)!  As a result, expenses associated with storing, collecting, searching and producing ESI in discovery have skyrocketed and many say that changes to the Federal Rules are inevitable (though some say it is too soon to fully grasp the impact of the 2006 Federal Rules changes).  It will be interesting to see what comes out of the hearings next month.

So, what do you think?  Do you expect major changes to the rules regarding eDiscovery, and if so, what would you like to see changed, and why?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: New York Pilot Program Requires Joint Electronic Discovery Submission for Cases Involving ESI
 

On November 1, 2011, the Southern District of New York implemented a new Pilot Program for Complex Cases in "response to the federal bar's concerns about the high costs of litigating complex civil cases." The program is "designed to improve judicial case management of these disputes and reduce costs and delay" and will run for eighteen months.

Fourteen types of civil lawsuits are designated as "complex civil cases," including "stockholder's suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions." District court judges have the power to add or remove a case from the pilot, even if it does not fall in these categories.

Parties to complex cases must submit Exhibit B, Joint Electronic Discovery Submission if they believe relevant ESI that is potentially responsive to current or future discovery requests exists. In addition, parties must certify that "they are sufficiently knowledgeable in matters relating to their clients' technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf." They must also meet and confer prior to the Rule 16 conference on preservation; methodologies for search and review; sources of ESI; limitations on the scope of production; form of production; managing privileged material, including inadvertent production, clawback and quick peek agreements, and Rule 502(d) orders; and the costs of production, cost-saving measures, and cost allocation.

So, what do you think?  Should more jurisdictions adopt such a program? Or should they wait until the results of this pilot are published?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery.  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

eDiscovery Case Law: Facebook Content Discoverable Yet Again

It seems most, if not all, of the cases these days where discoverability of social media is at issue are being decided by courts in favor of the parties seeking to discover this information.  Here’s another example.

In Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) the court ruled that the plaintiff’s Facebook information was discoverable as being relevant and not privileged and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days, giving the defendant a 21-day window to inspect the plaintiff’s Facebook profile (after which she was allowed to change her password).

In this case, one of the plaintiffs claimed that a motorcycle accident caused by the defendant left her with chronic physical and mental pain. During a deposition of one of the plaintiffs, the defendant learned that she had a Facebook account and had accessed it as recently as the night before the deposition.  The defendant had reason to believe that the plaintiff had posted pictures of herself on Facebook enjoying life with her family as well as a status update about going to the gym. Accordingly, the defendant filed a Motion to Compel, demanding that the plaintiff provide her Facebook username and password to enable the defendant to demonstrate that the plaintiff’s injuries aren’t as bad as she claimed.

The defendant cited two cases where discovery of social network content was granted: Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).  The plaintiffs responded with two cases where courts denied discovery of Facebook material: Piccolo v. Paterson, No. 2009-4979 (Pa. C.P. Bucks May 6, 2011) and Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan 15, 2011).

The court considered the following factors in ruling for the defendant:

  • Relevancy: Since the plaintiff claimed that “she suffers from, among other things, chronic physical and mental pain” and that the defendant claimed that the plaintiff’s “formerly public Facebook account included status updates about exercising at a gym and photographs depicting her with her family that undermine her claim for damages” the court ruled that the information sought by the defendant is “clearly relevant”.
  • Privilege and Privacy: The court noted that there “is no confidential social networking privilege under existing Pennsylvania law” and that there is “no reasonable expectation of privacy in material posted on Facebook”.
  • Stored Communications Act of 1986 (SCA): While the SCA places limits on the government’s ability to compel Internet Service Providers (ISPs) to disclose information about their users, only one court has addressed whether Facebook is an entity covered by the SCA: Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010).  In that case, it was ruled that the information being sought directly from Facebook (and other social networking sites) was protected under the SCA, but this court ruled that the SCA does not apply in this case because the plaintiff “is not an entity regulated by the SCA.”
  • Breadth of Discovery Request: The court noted that the plaintiff’s contention that the defendant’s motion is “akin to asking her to turn over all of her private photo albums and requesting to view her personal mail” is “mistaken” as content posted on Facebook is not private.  So, such a request would not “cause unreasonable annoyance, embarrassment, oppression, burden or expense” as the cost to investigate the plaintiff’s Facebook information would be borne by the defendant.

As a result, the court ruled in favor of the defendant and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days.  Hopefully, the plaintiff doesn’t resort to tampering with the content on their Facebook page.

So, what do you think?  Assuming relevance, should all parties be required to produce social media information? Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from all of us at eDiscovery Daily and CloudNine Discovery!

eDiscovery Trends: Potential ESI Sources Abound in Penn State Case
 

Whether you’re a college football fan or not, chances are you’ve heard about the scandal associated with the allegations of serial child abuse by former Penn State football coach Jerry Sandusky.  There seems to be new developments almost daily and the scandal has already cost the jobs of the university president, vice president, athletic director and the head football coach, Joe Paterno, who had been head coach since 1965 and on the coaching staff since 1950 (most of us weren’t even born yet!).  Numerous lawsuits seem highly likely to arise as a result of the alleged abuse against a variety of defendants, including the university, individuals alleged to be involved in the abuse and cover-up and also the Second Mile Foundation founded by Sandusky.

Seth Row, an attorney with Parsons Farnell & Grein LLP in Portland (OR), has written an article published in the Association of Certified eDiscovery Specialists (ACEDS) web site providing a detailing of potential sources of ESI that may be relevant in the case.  The article illustrates the wide variety of sources that might be responsive to the litigation.  Here are some of the sources cited by Row:

  • Videotape of entry and exit from the athletic facilities at Penn State, to which Paterno gave Sandusky access after the latter resigned in 1999;
  • Entry/exit logs, which are likely housed in a database if keycards were used, for the Lasch Football Building, where abuse was allegedly witnessed
  • Phone records of incoming and outgoing calls;
  • Electronic rosters of football players, coaches, staff, student interns, and volunteers affiliated with the Penn State football program over time;
  • The personal records of these individuals, including telephone logs, internet search histories, email accounts, medical and financial records, and related information created over time;
  • University listservs;
  • Internet forums – a New York Times article reported last week that a critical break in the investigation came via a posting on the Internet, mentioning that a Penn State football coach might have seen something ugly, but kept silent;
  • Maintenance logs maintained by the two custodial employees who allegedly witnessed abuse;
  • Identities of all media beat reporters who covered the Penn State football team;
  • Passenger and crew manifests for all chartered flights of the Penn State football team in which Sandusky was a passenger;
  • Sandusky's credit card records to document meals and outings where he may have been accompanied by victims, and records of gifts he purchased for them;
  • All records of the Second Mile Foundation identifying boys who participated in its programs, as well as the names of donors and officers, directors and staff;
  • Paper record equivalents of this ESI that were produced in the 1990s before electronic recordkeeping became prevalent;
  • All electronic storage and computing devices owned or maintained by Sandusky, Paterno and other central figures in the scandal, including cell phones, personal computers, tablet computers, flash drives, and related hardware.

With such a wide variation of potential custodians and time frames, it will be difficult to quickly narrow down the potential ESI sources.  As the author points out, it seems likely that Penn State has already locked down its records retention policies throughout the university.  They certainly would seem to have a reasonable expectation of litigation.  Investigators and attorneys will likely be racing against time to identify as many other parties as possible with potentially responsive ESI.

So, what do you think?  Have you been involved in litigation with such a wide distribution of potentially responsive ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

“Spoliation of evidence” refers to the deliberate destruction of evidence prior to a trial.  It is a rare event in civil litgation.  But, spoliation of evidence was found in a case involving a personal injury lawyer in Virginia.  Lawyer Matthew Murray was ordered to pay $522,000 for instructing his client to remove photos from his Facebook age.  His client was ordered to pay $180,000 for obeying his instructions.  A state district judge issued these sanctions in the case of Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011).

Murray was found to have told his client to remove pictures, such as the one of him holding a beer and wearing a t-shirt that said “I ♥ hot moms.”  The client was a recent widower suing about the death of his wife.

In this case, the defendant was able to show via expert testimony that the widower deleted 15 photos from his Facebook account and perhaps a 16th.  The photos were provided to the defendant later, before the trial.  The jury found in favor of Mr. Lester and awarded $10 million.  Subsequent to the trial, the judge ordered that Plaintiff’s counsel provide copies of emails between the lawyer and his client to the court for in camera inspection (i.e., for the judge’s eyes only).  When the district judge ordered production of these emails, he ruled that emails related to Defendant’s request for production were not attorney-client privileged.

This all started when one of the defense lawyers apparently “hacked” into Mr. Lester’s Facebook page via a mutual friend and observed the photos showing Mr. Lester as apparently non too distraught over his wife’s death.

The court found that the plaintiff, Isaiah Lester, lied about his depression and treatment.  The court found that Murray told Lester via email “to clean up” his Facebook page and told the client that “blow-ups” of pictures like the “I [heart] hot moms” photo would cause problems at trial.  Lester deactivated his Facebook page.  A few days later, in responding to discovery requests, the plaintiff said he did not have a Facebook account.  The defendants complained – at this point they knew Lester had or should have a Facebook account.  Murray then asked Lester to reactivate his account.  The plaintiff’s lawyer also provided hard copies of the 16 photos to the defense.

At his subsequent deposition, Mr. Lester lied about what he had done and denied he had deactivated his Facebook account.

Defendants then issued a subpoena duces tecum for emails between Lester and his lawyer for the time period when the request for production was issued.  Plaintiff resisted.  The defense then filed a motion to compel.  The court required a privilege log of the disputed emails.  The judge found the initial privilege log deficient.  When Murray finally produced the incriminating email, he claimed its prior omission was error and blamed the omission on a paralegal, ultimately leading to the sanctions.

So, what do you think?  Were those sanctions fair or were they excessive? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: San Antonio Employment Law Blog.

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: Data Mapping Doesn’t Have to be Complicated
 

Some time ago, we talked about the importance of preparing a data map of your organization’s data to be ready when litigation strikes.

Back then, we talked about four steps to create and maintain an effective data map, including:

  • Obtaining early “buy-in” with various departments throughout the organization;
  • Document and educate to develop logical and comprehensive practices for managing data;
  • Communicate regularly so that new data stores (or changes to existing ones) can be addressed as they occur;
  • Update periodically to keep up with changes in technology that create new data sources.

The data map itself doesn’t have to be complicated.  It can be as simple as a spreadsheet (or series of spreadsheets, one for each department or custodian, depending on what level of information is likely to be requested).  Here are examples of types of information that you might see in a typical data map spreadsheet:

  • Type of Data: Prepare a list and continue to add to it to ensure all of the types or data are considered.  These can include email, work product documents, voice mail, databases, web site, social media content, hard copy documents, and any other type of data in use within your organization.
  • Department/Custodian: A data map is no good unless you identify the department or custodian responsible for the data.  Some of these may be kept by IT (e.g., Exchange servers for the entire organization) while others could be down to the individual level (e.g., Access databases kept on an individual’s laptop).
  • Storage Classification: The method(s) by which the data is stored by the department or custodian is important to track.  You’ll typically have Online, Nearline, Offline and Inaccessible Data.  A type of data can apply to multiple or even all storage classifications.  For example, email can be stored Online in Exchange servers, Nearline in an email archiving system, Offline in backup tapes and Inaccessible in a legacy format.  Therefore, you’ll need a column in your spreadsheet for each storage classification.
  • Retention Policy: Track the normal retention policy for each type of data stored by each department of custodian (e.g., retain email for 5 years).  While a spreadsheet won’t automatically identify when specific data is “expired”, a regular process of looking for data older than the retention time period will enable your organization to purge “expired” data.
  • Litigation Hold Applied: Unless of course, that data is subject to an active litigation hold.  If so, you’ll want to identify the case(s) for which the hold is applied and be prepared to update to remove those cases from the list once the hold obligation is released.  If all holds are released on normally “expired” data and no additional hold obligations are expected, that may be the opportunity to purge that data.
  • Last Update Date: It’s always a good idea to keep track of when the information in the data map was last updated.  If it’s been a while since that last update, it might be time to coordinate with that department or custodian to bring their portion of the data map current.

As you see, a fairly simple 9 or 10 column spreadsheet might be all you need to start gathering information about the data stores in your organization.

So, what do you think?  Has your organization implemented a data mapping program?  If not, why not? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Grants Adoption of Model Order for Patent Case

Model orders to limit discovery for patent cases have gained popularity in various jurisdictions, including this recent order proposed in Texas.  Here’s one patent case where the defendant sought to adopt such a model order.

In DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C-11-03792 PSG, (N.D. Cal. Nov. 2, 2011), defendant Checkpoint asked the court to enter a version of the model order. (The proposed version differed from the model order in the number of keywords and custodians and on an issue of metadata.) The court granted defendant’s motion.

Plaintiff DCG objected to the entry of the order. It argued that since this was a case between competitors, and not a case brought by a nonpracticing entity (an “NPE,” or sometimes called a “patent troll”), the discovery would be improperly impeded by the model order’s limitations on email discovery.

NPE or patent troll cases often involve asymmetrical discovery – the plaintiff has few documents but the defendant has many. And some commentators have proposed that the model eDiscovery order seeks to reduce the ill-effects of this asymmetry. In this case plaintiff argued that it would need discovery on legitimate issues that may have arisen with an actual competitor, e.g., whether defendant copied plaintiff’s technology and whether plaintiff was entitled to an injunction. Plaintiff’s argument presupposed that the model order’s limitations would cut into the scope of that purported legitimate discovery.

The court rejected plaintiff’s arguments. It found that: (1) nothing in the model order or the Chief Judge of the Federal Circuit’s speech unveiling the order suggested that it was intended only for NPE cases, and (2) there was no reason to believe that non-NPE (competitor) cases presented less compelling circumstances in which to impose reasonable restrictions on the timing and scope of email discovery.

The court also addressed the notion that the model order would help only in NPE cases or cases involving asymmetrical eDiscovery. It observed that the model order could have double the benefit in competitor cases. If using the model order to relieve the burden on the producing party in an NPE case was a good thing, then using it in a suit between competitors benefit both sides and be twice as good.

So, what do you think?  Are model orders to limit discovery a good idea?  If so, should they apply to other types of cases? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Practical eDiscovery Blog, by Hinshaw & Culbertson, LLP.

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 101: Simply Deleting a File Doesn’t Mean It’s Gone
 

This subject came up recently in discussion with one of my clients and since he was confused as to what happens when a file is deleted, I thought it would be worthwhile to discuss the topic on the blog.

Disk drives use an index or table to keep track of where each file begins and ends on the disk.  You may have heard terms such as “FAT” (file allocation table) or NTFS ({Windows} NT File System) – these filing systems enable the file to be retrieved quickly on the drive.  They’re like a “directory” of all of the active files on the disk.  When a file is “deleted” (i.e., actually deleted, not just moved to the Recycle Bin), the data for that file isn’t actually removed from the disk (in most cases).  Instead, the entry pertaining to it is removed from the filing system.  As a result, the area on the disk where the actual data is located becomes unallocated space.

Unallocated space, also known as inactive data or drive free space, is the area of the drive not allocated to active data. On a Windows machine, deleted data is not actually destroyed, but the space on the drive that can be reused to store new information. Until the unallocated space is overwritten with new data, the old data remains.  This data can be retrieved (in most cases) using forensic techniques. On MAC O/S 10.5 and higher, there is an application that overwrites sectors when a file is deleted. This process more securely destroys data, but even then it may be possible to recover data out of unallocated space.

Because the unallocated space on a hard drive or server is that portion of the storage space to which data may be saved, it is also where many applications “temporarily” store files when they are in use. For instance, temporary Internet files are created when a user visits a web page, and these pages may be “cached” or temporarily stored in the unallocated space.  Rebooting a workstation or server can also clear some data from the unallocated space on its drive.

Since computers are dynamic and any computer operation may write data to the drive, it is nearly impossible to preserve data in the unallocated space on the hard drive and that data is not accessible without special software tools. To preserve data from the unallocated space of a hard drive, the data must be forensically collected, which basically copies the entire drive’s contents, including every sector (whether those sectors contain active data or not). Even then, data in the unallocated space may not be complete. Because the unallocated space is used to store new data, writing a new file may overwrite part of a deleted file, leaving only part of that file in the unallocated space.

Nonetheless, “deleted” files have been recovered, collected and produced in numerous lawsuits, despite efforts of some producing parties to destroy that evidence.

So, what do you think?  Have you ever recovered deleted data that was relevant to litigation?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?
 

Many of you have Android phones.  I do, as well.  As you may know, Android is Google’s operating system for phones and Android phones have become extraordinarily popular.

However, as noted in this Computerworld UK article, it may be a failure in searching that ironically may cost Google big time in its litigation with Oracle over the Android operating system.

Google is currently involved in a lawsuit with Oracle over license fees associated with Java.  Oracle acquired Java when it purchased Sun Microsystems and many companies license Java.  Java forms a critical part of Google’s Android operating system and Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.  Android has been so successful for Google that a loss to Oracle could result in billions of dollars in damages.

To cull down a typically large ESI population, Google turned to search technology to help identify potentially responsive and potentially privileged files.  Unfortunately for Google, a key email was produced that could prove damaging to their case.  The email was written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google. With Oracle having threatened to sue Google for billions of dollars, Lindholm was instructed by Google executives to identify alternatives to Java for use in Android, presumably to strengthen their negotiating position.

"What we've actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome," the email reads in part, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

Lindholm added the words “Attorney Work Product” and sent the email to Andy Rubin (Google’s top Android executive) and Google in-house attorney Ben Lee.  Unfortunately, Lindholm’s computer saved nine drafts of the email while he was writing it – before he added the words and addressed the email to Lee.  Because Lee's name and the words "attorney work product" weren't on the earlier drafts, they weren't picked up by the eDiscovery software as privileged documents, and they were sent off to Oracle's lawyers.

Oracle's lawyers read from the email at two hearings over the summer and Judge William Alsup of the U.S. District Court in Oakland, California, indicated to Google's lawyers that it might suggest willful infringement of Oracle's patents.  Google filed a motion to "clawback" the email on the grounds it was "unintentionally produced privileged material." Naturally, Oracle objected, and after a three-month legal battle, Alsup refused last month to exclude the document at trial.

How did Google let such a crucial email slip through production?  It’s difficult to say without fully knowing their methodology.  Did they rely too much on technology to identify files for production without providing a full manual review of all files being produced?  Or, did manual review (which can be far from perfect) let the email slip through as well?  Conceivably, organizing the documents into clusters, based on similar content, might have grouped the unsent drafts with the identified “attorney work product” final version and helped to ensure that the drafts were classified as intended.

So, what do you think?  Could this mistake cost Google billions?  Please share any comments you might have or if you’d like to know more about a particular topic.