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eDiscoveryDaily

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases
 

A recent article in Texas Lawyer discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. As noted at the 2011 Eastern District of Texas Bench Bar Conference in Irving last week, the "Model Order on E-Discovery in Patent Cases" was unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in patent cases.

What's Wrong with eDiscovery Now?

In his speech at the 2011 Eastern District of Texas Bench Bar Conference, "Thoughts on the Status and Direction of Patent Litigation in the United States," Judge Rader accuses the courts of becoming “intolerantly expensive”, forcing “accused infringers to acquiesce to non-meritorious claims” therefore imposing “an unhealthy tax on innovation and open competition”.  He compared the model order to the current Federal Rule of Civil Procedure 30, which limits cases to 10 depositions of 7 hours or fewer.

Rader said "the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses." Hence, the proposed model order to save the participants in these cases time and money.

Model Order Proposes Limits on eDiscovery

Rader's model order would create several limits on the production of electronically stored information in patent cases, including:

  • Exclusion of metadata from eDiscovery production requests without "good cause";
  • Restrictions on email production requests to specific issues and “not general discovery of a product or business”;
  • Delaying of email production requests until after disclosures about the patents, the accused uses of the invention, relevant financial information and the prior art;
  • A maximum of five custodians per party in email requests, and only five search terms each, unless courts specifically allow in excess of that number (if litigants submit requests that exceed those court orders, they must pay for the extra production);
  • Receiving parties cannot use materials asserted by producing parties as attorney-client or work product privileged;
  • Prohibitions on the use of privileged information produced as part of a mass production or other inadvertent release.

For more information about this model order and its implications, see Model Order Would Limit E-Discovery in Patent Cases.

So, what do you think?  Will the model order “catch on” as a way to limit the eDiscovery possible in patent cases?  Will other jurisdictions adopt the model order? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Sometimes the Vendor Sues the Law Firm – And Wins!
 

The eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest in the industry and this blog, with recent posts here, here and here to relate developments in the case associated with inadvertent production of 3,900 privileged documents.

Sometimes, the “shoe is on the other foot”, so to speak.

As noted in David’s Snow’s article on Law Technology News entitled Is Cataphora Case a Sign of Vendor-Law Firm Fights to Come?, Cataphora (which has its legal division acquired by Ernst & Young since the case was filed) won a judgment of $317,113 against several big-time mass-torts plaintiffs firms in a breach of contract case.

In Cataphora, Inc. v. Parker et al., Cataphora sued the plaintiffs firms associated with the Chinese drywall multidistrict litigation for breach-of-contract, for cancelling the contract for pre-trial document review after receiving an invoice for an up-front fee of $366,000. Cataphora never did the work.

According to Roger Chadderdon, technology counsel at Cataphora, who represented the company in court, “We got screwed,”. “Their strategy from day one was to drag this out as long as possible to make it go away.”  He says the plaintiffs firms told Cataphora, “Sue us if you dare.”

They dared, and the jury decided in favor of Cataphora, that the contract was enforceable, and issued the award. This case was tried in the Northern District of California Magistrate court – an appeal is expected.

The plaintiffs firms associated with this litigation have been involved in a wide variety of multimillion dollar class-action lawsuits, ranging from Vioxx to the BP oil spill to the Toyota acceleration defect to the Bridgestone / Firestone tire cases.

“These guys are the worst of hypocrites that you can possibly find,” Chadderdon says. “They claim to be trying to help the little guy, but what they’re doing is trying to put more money in their own pockets. Everybody knows that, but this is a case that illustrates it beyond what I have ever seen.”

Snow’s article quotes Tom O’Connor, a previous thought leader on this blog, for reactions, and O’Connor asked the question “How many vendors have you ever heard of suing lawyers and winning?”,  O’Connor noted that “Mostly the dirty linen in this stuff never goes public.  In the old days, they'd settle the case. From the firm point of view, nobody wanted their business practices aired. That's not the sort of lawsuit that ever would've been filed 5 years ago.”

As Snow’s article notes, the Above the Law blog has a more extensive write-up on the case for more information.

So, what do you think?  Do the McDermott and Cataphora cases signal a trend of contentious relationships between vendor and law firm?  Or are they aberrations?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime

A New York district court recently ordered the United States Government to reproduce thousands of pages of electronic discovery materials in a criminal case involving the distribution of cocaine.

In United States v. Briggs, No. 10CR184S, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), the Government produced thousands of pages of electronic documents and a number of audio recordings, none of which were text searchable. The court ultimately decided that the onus of producing searchable materials for eDiscovery fell on the Government itself.

  • Defendants requested that the Government reproduce the discovery materials in a searchable format, but the Government refused, stating that it had used a program “routinely used” in criminal cases and would not bear the storage burden or cost of reproducing the documents.
  • The defense argued that the volume of production was virtually impossible to navigate without the ability to sort or search the documents, and that the materials presented for discovery lacked some relevant information. The court later made the comparison that a paper equivalent to this discovery situation “would be if the Government took photographs of thousands of pages… put them in boxes, and invited inspection by defense counsel.”
  • In light of the absence of a rule or standard for discovery of electronic materials in criminal cases such as this one, the court referred to other criminal cases in which the same issues were discussed, including United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) and United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). Both of these cases dealt at some point with similar debates over document format and extensive discovery production, with different findings of whether the producing party was required to produce in the requested format.
  • The court decided that, in light of the absence of a clear standard, the Government was the party “better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all” and ordered the Government to produce the files in searchable PDF or native format.
  • Finally, the court expressed its hope that the Advisory Committee on Criminal Rules would soon establish rules addressing the production of ESI in criminal cases.

So, what do you think? Was the court fair to put the onus of searchable text production on the Government? Should there be similar rules governing eDiscovery issues in the Federal Rules of Criminal Procedure as there are in the Federal Rules of Civil Procedure? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth
 

Despite the recent economic recession resulting in “crashing” corporate profitability, eDiscovery is still growing as an industry, according to a Market Research Report now available from IBISWorld.

As revealed in a press release announcing the report, revenue in the eDiscovery industry is growing at an annual rate of 5.6% over the last five years to an estimated $786.5 million in 2011.  In line with a rebound in corporate profitability last year, eDiscovery industry revenue jumped 9.1% then and is anticipated to exceed the five-year average growth rate again this year, with an increase of 7.6%.  As the press release notes, “[t]he copious amount of electronically stored information (ESI) has made e-discovery services resilient in the face of tough economic conditions”.  In addition, 60% of law firms are planning on increasing their eDiscovery staff in the next 6 months, according to a survey of 45 AmLaw 200 firms conducted by The Cowen Group.

The IBISWorld press release also notes that while eDiscovery revenue has grown, the number of participants in the industry has declined as the industry has continued to consolidate, with major acquisitions including Symantec Corporation’s acquisition of Clearwell and Hewlett-Packard’s acquisition of Autonomy in 2011 alone.  As a result, the number of industry participants has dropped an estimated average annual rate of 2.0% over the five years to 2011, to 612 businesses.

With corporate profit expected to grow at a rate of 7.3% annually over the next five years (to 2016), continued spiraling growth of ESI volumes and growing demand from the legal market, IBISWorld expects eDiscovery industry revenue to continue to rise at an average annual rate of 6.1% over those five years, to reach $1.1 billion by the end of 2016.  Considerable growth in ESI and the rise of social networks is expected to continue to fuel the demand for new and advanced eDiscovery products like:

  • Processing and Analysis Software,
  • Collection Software,
  • Review Software,
  • Legal Hold Software, and
  • Consulting Services.

The full Market Research report from IBISWorld is available for purchase and download here.

I guess it’s true: People do continue to sue each other as much (and even more) during tough economic times as they do during prosperous times!  And, they certainly continue to have more data.

So, what do you think?  Do these numbers surprise you?  Are you as busy (or even busier) than you were five years ago?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Sedona Conference Provides Guidance for Judges
 

Last month, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Sedona Conference Cooperation Proclamation has set a non-trivial goal- to teach the profession to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery.

The Cooperation Proclamation was published in 2008 and is a short document that argues that if lawyers work together during the discovery phase, the merits of the underlying dispute are more likely to get a fair hearing. Specifically, it calls on lawyers to "work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute." 

The Resources for the Judiciary distinguishes between “active case management” and “discovery management.” The former can be characterized as a proactive and the latter as a reactive judicial approach to managing discovery. While offering guidance for both approaches, the proclamation urges judges to take an active case management model approach. That is not to say that judges should make decisions for parties, but to provide “a clear set of expectations designed to move the evidence-gathering phase of the litigation forward in a speedy and inexpensive way, without the cost, delay, and gamesmanship associated with unmanaged discovery.”

The Resources for the Judiciary is a detailed and practical document, providing a practical “toolkit” to train and support judges in techniques of discovery cooperation, collaboration, and transparency. It is organized by common stages of discovery disputes from a judge’s perspective. Eighteen issue areas are listed, beginning with preservation and continuing through topics like choosing search methodology and ending with everyone’s least favorite issue, sanctions. Each topic area lists the Federal Rule that applies to any given topic, an explanation of the issue, and practical guidance for achieving successful resolution of disputes. Each section includes detailed guidance in the form of current case law and examples of orders from the bench.  

The Resources make the following recommendations:

  • Judges should adopt a “hands-on” approach to case management early in each action;
  • Judges should establish deadlines and keep parties to those guidelines (or make reasonable adjustments) with periodic status reports or conferences;
  • Judges should encourage the parties to meet before discovery commences to develop a realistic discovery plan;
  • Judges should encourage proportionality in preservation demands and expectations and in discovery requests and responses;
  • Judges should exercise their discretion to limit or condition disproportionate discovery and shift disproportionate costs;
  • If necessary, judges should exercise their authority to issue sanctions under the relevant statutes, rules, or the exercise of inherent authority on counsel or parties who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by “gaming the system”.

The Sedona Conference has acknowledged that cooperation is contrary to the adversarial instincts lawyers have been taught, and that it will require a generational shift for the nature of litigation to change. But there is perhaps no better way to encourage lawyers to cooperate than to create and active and informed judiciary on eDiscovery issues.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Can guidance like this help prevent intractable discovery disputes? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Rules Against Exclusion of Privileged Email

“Clawback” of inadvertently produced privileged documents is a hot topic these days, with J-M Manufacturing’s recent clawback request in their case one of the latest examples.  For more information on mechanisms for “clawback”, check out our blog posts of the last two days.

A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant’s actions before and after the discovery of the email’s production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

In Williams v. District of Columbia, No. 06-02076 (CKK), 2011 WL 3659308 (D.D.C. Aug. 17, 2011), the court ruled that the burden of preventing disclosure was on the defendant, and that its insufficient follow up showed “indifference,” and has thus denied the defendant’s Motion to Exclude the inadvertently produced email from evidence.

  • As part of a “recommendation to terminate packet” produced by the defendant, the District of Columbia, in the course of this case, a privileged email was inadvertently included. This email is described as being included in the first ten pages of the packet.
  • Defendant’s counsel sent an email to plaintiff’s counsel five months later, requesting the return of the email and its exclusion under Rule 26(b)(5)(B). There was neither any form of response from the plaintiff nor follow up from the defendant. Only when the email was introduced as an exhibit, more than two years later, did the defendant file its Motion to Exclude.
  • The court considered whether the defendant had met the conditions of Rule 26(b)(5)(B) that a party must “discharge its obligations under Rule 502(b)(3),” and concluded that the defense was negligent in not taking enough steps promptly to remedy the mistake. The defendant’s inability to accurately portray its document review methodology or the number and type of documents produced were also cited as reasons that the defense was itself responsible for the waiver of privilege associated with the email in question.
  • The court found that the defense’s single email request, with no follow up, was inadequate to protect its interest in the privilege of the inadvertently produced email, especially when considered in light of “the approximately two years and eight months before it filed a motion seeking the court’s intervention.”
  • Accordingly, the court ruled against exclusion of the email under FRE 502(b)(3), stating that, “the only ‘injustice’ in this matter is that done by the defendant to itself…. The District’s failure to make reasonable efforts to guard against the disclosure in the first place and to rectify its error once discovered is fatal to its reliance on Rule 502(b).”

So, what do you think? Was the court fair in assigning fault to the defense, or should the benefit of protection under FRE 502(b)(3) have been accorded the District of Columbia in this case? Have you been involved in a similar case or situation? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Law: Federal Rule of Evidence 502 Protects Against Accidental Waiver of Privilege
 

As noted yesterday, attorneys have reason to be worried about accidental waiver of privilege in today’s cases, where discovery of electronic documents reaches unprecedented volumes. With more electronically stored information (ESI) comes an increased risk of accidentally producing privileged information. Fortunately, there are provisions that can prevent some of the damage of such accidents.

Yesterday, we discussed “clawback” provisions and “quick peek” agreements. Both of these types of agreements can be used to protect against accidental waiver of privilege through production of the wrong documents for discovery. But, sometimes parties are unable to complete such agreements.  In other cases, these protections have been defeated by lawyers in court.  That's where Federal Rule of Evidence (FRE) 502 steps in to ensure that privilege is safeguarded when parties inadvertently produce privileged materials, assuming they take reasonable steps to avoid such inadvertent production.

FRE 502 was enacted in 2008, and it provides that:

  • "Subject matter waiver", the idea that production of a single privileged document waives privilege on all related documents on the same subject matter, does not exist. If and when waiver occurs, it is limited to the documents and information that were actually produced.
  • There is no waiver if the producing party takes reasonable steps to withhold privileged material or requests that materials accidentally produced be returned or destroyed.  Of course, what constitutes “reasonable steps” is open to interpretation.
  • If parties have agreed that inadvertent production will result in no waiver, such an agreement is binding only on the parties involved unless it is part of a court order. The effect of the agreement is broader if the agreement is included in a court order.
  • Any conflict between state and federal rules is determined by choosing the rule that provides the greatest protection of privilege.
  • FRE 502 applies even if a case is conducted under state law.

FRE 502 is relatively new and is still being interpreted by courts, but one thing is clear: the greatest protection afforded by FRE 502 is present when parties have entered into a “clawback” agreement and requested that it be made part of a court order. However, there remains no definitive ruling on what constitutes inadvertent production of privileged information or what constitutes “reasonable steps” to avoid such inadvertent production.

So, what do you think? Does FRE 502 provide important protections, or does it overstep in protecting parties and attorneys who are negligent? What do you think is necessary for a party to claim that production was inadvertent? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Law: Inadvertent Production is Inevitable, So How Do You Protect Yourself?
 

With exploding volumes of electronically stored information (ESI) being required in discovery proceedings, there is more chance than ever of inadvertently producing materials that should have been protected by privilege. No case exemplifies that better than the current eDiscovery malpractice case involving McDermott, Will & Emery discussed in this blog here, here and here where McDermott’s former client, J-M Manufacturing, has contended that 3,900 privileged documents were erroneously produced.  It is virtually impossible these days to keep every item from production that is protected by attorney-client or work product privilege.

Fortunately, there are protections against a claim of privilege waiver through inadvertent production.  The two most common historical protections are “quick peek” agreements and “clawback” provisions.

“Quick Peek” Agreement

“Quick peek” agreements are available, but not very common, because they present challenges for both parties in a lawsuit.

Instead of reviewing documents, everything is presented for a "quick peek." The requesting party is obligated to sort through all of the evidence and select the documents they wish to have presented for discovery. The producing party then has the opportunity to review those documents for privilege. The onus of review and labor for reviewing the entire collection is on the requesting party, but the producing party must be willing to accept the risk that opposing counsel will use any privileged information viewed against them, even if that information hasn’t been produced.

“Clawback” Provision

The more common protection is known as a “clawback” provision or “clawback” agreement. A part of the protective order made by the court early in a case, a “clawback” provision is an agreement between both parties that any discovery documents that are accidentally produced when they should have been protected by privilege are to be destroyed or returned upon request.

This kind of early agreement is usually simple and straightforward. It protects parties from disagreement over specific documents and prohibits the requesting party from making a claim of waiver.  Of course, parties don’t always agree to enter in such an agreement and sometimes courts have to decide.

One More Protection: Federal Rule of Evidence 502

In addition, the Federal Rule of Evidence (FRE) 502 was created in 2008 to provide additional protection. Before this rule was brought in, it has been argued, and sometimes upheld, that despite agreement between the parties as to no waiver through inadvertent production, that agreement did not extend to other parties in other proceedings. Waiving privilege on a single document has often constituted a waiver for all other documents on the same subject (called “subject matter waiver”).  FRE 502 provides extra protection in these cases.

But, more on that tomorrow!

So, what do you think? Have you ever been in a situation where you had to rely on one or more of these protections to deal with inadvertent production in a case? How did that work out for you and/or your client? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?
 

Email has historically been the most common form of requested electronically stored information (ESI), but that has changed, according to a survey performed by Symantec and reported in Law Technology News.

According to the article, Symantec’s survey, conducted this past June and July, included lawyers and technologists at 2,000 enterprises worldwide.  However, the article doesn’t indicate the total number of respondents or whether that’s the number of organizations receiving the survey or the number actually responding.

Regarding how frequently (percentage of situations requested) various types of ESI are requested during legal and regulatory processes, the survey yielded some surprising answers:

  • Files and Documents: 67 percent
  • Application and Database Records: 61 percent
  • Email: 58 percent
  • Microsoft SharePoint records: 51 percent
  • Messaging Formats (e.g., instant messaging, texts, and BlackBerry PIN messages): 44 percent
  • Social Media Data: 41 percent

Email requested in legal and regulatory processes just over half the time?  That’s more than surprising, that’s shocking!

Symantec’s survey also asked about implementation of a formal data retention policy, with 30 percent of responding companies indicating that they have discussed but have not implemented a policy and 14 percent indicating that they have no plans to implement a policy (44 percent total that have not implemented a policy).  Reasons for not doing so were as follows (respondents were allowed to pick multiple reasons):

  • No Need Identified: 41 percent
  • Cost: 38 percent
  • No Designated Employee (to implement the policy): 27 percent
  • Too Time Consuming: 26 percent
  • Lack of Expertise: 21 percent

Many of these companies may not feel compelled to implement a policy because they are not frequently in litigation nor are they in regulated industries.

So, what do you think?  Do the percentages above reflect your experience as to how frequently the different types of ESI are requested?  Does the email percentage seem significantly low?  In my experience, it does.  Please share any comments you might have or if you’d like to know more about a particular topic.

Our First Birthday! eDiscovery Daily is One Year Old Today!
 

Break out the birthday cake and the noisemakers!  eDiscovery Daily is now a year old!  One year ago today, we launched this blog with the ambitious goal of providing eDiscovery news and analysis every business day.  And, we haven’t missed a day yet!  Knock on wood!

Since we last reported, during our “sixmonthiversary”, we’ve almost doubled viewership (again!) since those first six months, and have increased our subscriber base over 2 1/2 times over that span!  Clearly, there is no shortage of topics to write about regarding eDiscovery and we appreciate your continued interest and support!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Litigation Support Blog.com, The Electronic Discovery Reading Room, Litigation Support Technology & News, eDiscovery News, InfoGovernance Engagement Area, Ride the Lightning, ABA Journal, ABC's of E-Discovery, Above the Law, EDD: Issues, Law, and Solutions, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).

Finally, a quick “thanks” to all who contributed to the blog in the past year, including Jane Gennarelli, Jason Krause and Brad Jenkins (my boss, got to thank him, right?), as well as Melissa Rudy for assisting with several of the posts.

For those of you who have not been following eDiscovery Daily all year (which is most of you), here are some topics and posts you may have missed.  Feel free to check them out!

Case Law:

eDiscovery Daily has published 50 posts related to eDiscovery case decisions and activities over the past year!  Victor Stanley v. Creative Pipe, commonly referred to as the “Victor Stanley” case was followed throughout the year, including our very first post, as well as here, here and here.  More recently, the eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest, with recent posts here, here and yesterday’s post here.

Also among the case law posts is Crispin v. Christian Audigier Inc., which seems to reflect growing interest in discoverability of social media data, as this post was the most viewed post of the year on our blog!

Project Management:

Project management in eDiscovery is a popular topic and Jane Gennarelli provided a couple of series of posts to address best practices in this very important area.  The eDiscovery Project Management series was published over the October, November and December months of 2010, while the Managing an eDiscovery Contract Review Team series ran over January, February and into March.

Thought Leaders:

eDiscovery Daily was able to sit down with numerous industry thought leaders, including George Socha, Craig Ball, Tom O’Connor, Tom Gelbmann, Jack Halprin, Deidre Paknad, Jeffrey Brandt, Alon Israely, Jim McGann and Christine Musil to get their “takes” on the state of the industry and where it’s headed.  Thanks to all of those individuals who agreed to speak with us this past year!  We will continue to bring you more perspectives throughout the industry in the coming year.

Search Best Practices:

There were several posts on search best practices, including don’t get “wild” with wildcards, these posts on how to look for misspellings, a case study for using term lists, these posts on handling exception files and this post on the benefits of proximity searching.  We also talked about the “STARR” approach for defensible searching and published this three part series on best practices for sampling and revising searches.

Cloud Computing:

As cloud computing has become a major organizational driving force (overall and as part of eDiscovery), we have addressed several topics related to it, including the importance to be able to load your own data, benefits of software-as-a-service (SaaS) solutions for eDiscovery, the truth about security of SaaS and cloud-based systems, the Forrester and Gartner forecasts for tremendous growth in cloud computing, and even Craig Ball’s thoughts on the benefits of cloud computing for eDiscovery.

And many more posts over the past year on various other topics that are too numerous to mention…

Finally, it’s important to mention that we have yet to archive any old posts, so every post we have ever published is still currently available on this site! (I can see the Information Governance buffs cringing at that statement!)  I believe that we are in the process of building an impressive knowledge base of information spanning all sorts of eDiscovery topics as well as the entire EDRM life cycle.  If there’s an eDiscovery topic you wish to research, chances are that it’s been discussed here at some point.  So, feel free to make eDiscovery Daily one of your first stops for your eDiscovery information needs!

So, what do you think? Do you have any topics that you would like to see covered in more depth? Please share any comments you might have or if you'd like to know more about a particular topic.