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Hard Drive Turned Over to Criminal Defendant – Eight Years Later – eDiscovery Case Law

If you think discovery violations by the other side can cause you problems, imagine being this guy.

As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa, No. 10 CRS 1087 filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

After the state responded to the defendant’s March 2010 discovery request, the defendant filed a Motion to Compel Discovery in October 2012, alleging that the state had failed to disclose all discoverable “information in the possession of the state, including law enforcement officers, that tends to undermine the statements of or reflects negatively on the credibility of potential witnesses”.  At the hearing on the motion, the Assistant DA stated that all emails had been produced and the court agreed.

On April 29 of this year, the defendant filed another Motion to Compel Specific Items of Discovery “questioning whether all items within the state’s custody had been revealed, including information with exculpatory or impeachment value”.  Once again, the state assured the court it had met its discovery obligations and the court again denied the motion.

During pre-trial preparation of a former forensic examiner of the Durham Police Department (DPD) and testimony of detectives in the case, it became apparent that a hard drive of the victim’s that was imaged was never turned over to the defense.  On May 15, representatives of the DPD located the image from the victim’s hard drive which had been locked away in a cabinet for eight years.  Once defense counsel obtained a copy of the drive, their forensic examiner retrieved several emails between the victim and her former boyfriend that were exchanged within a few weeks of the murder that belied the prosecution’s portrayal of the defendant as an unfaithful, verbally abusive and controlling husband feared by his wife.  In testimony, the defendant’s forensic examiner testified that had he known about the hard drive in 2005, steps could have been taken to preserve the emails on the email server and that they could have provided a better snapshot of the victim’s email and Internet activity.

This led to the filing of the Motion to Dismiss the Case for Discovery Violations by the defense (link to the filing here).

As reported by WTVD, Judge Orlando Hudson, having been recently ruled against by the North Carolina Court of Appeals in another murder case where he dismissed the case based on discovery violations by Durham prosecutors, denied the defense’s requests for a dismissal or a mistrial.  Sounds like interesting grounds for appeal if the defendant is convicted.

So, what do you think?  Should the judge have granted the defense’s request for a dismissal, or at least a mistrial?  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.

Google Compelled to Produce Search Terms in Apple v. Samsung – eDiscovery Case Law

In Apple v. Samsung, Case No. 12-cv-00630, (N.D. Cal., May 9, 2013), California Magistrate Judge Paul S. Grewal granted Apple’s motion to compel third party Google to produce the search terms and custodians used to respond to discovery requests and ordered the parties to “meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.”

In August of last year, a jury of nine found that Samsung infringed all but one of the seven patents at issue and found all seven of Apple’s patents valid – despite Samsung’s attempts to have them thrown out. They also determined that Apple didn’t violate any of the five patents Samsung asserted in the case.  Apple had been requesting $2.5 billion in damages.  Apple later requested additional damages of $707 million to be added to the $1.05 billion jury verdict, which was subsequently reduced to nearly $599 million, with a new trial being ordered on damages for 14 products.  This case was notable from an eDiscovery perspective due to the adverse inference instruction issued by Judge Grewal against Samsung just prior to the start of trial for spoliation of data, though it appears that the adverse inference instruction did not have a significant impact in the verdict.

Google’s Involvement

As part of the case, Apple subpoenaed Google to request discovery, though they did not discuss search terms or custodians during the meet and confer.  After Google responded to discovery requests, Apple requested search terms and custodians from Google used in responding to discovery requests, but Google refused, arguing that the search terms and choice of custodians were “privileged under the work-product immunity doctrine.”  Instead, Google asked Apple to suggest search terms and custodians, but Apple refused and filed a motion to compel Google to provide search terms and custodians used to respond to discovery requests.

Judge Grewal noted that Google’s arguments opposing Apple’s request “have shifted”, but that “[a]t the heart of its opposition, however, is Google’s belief that its status as a third party to this litigation exempts it from obligations parties may incur to show the sufficiency of their production, at least absent a showing by Apple that its production is deficient.”  Google complained that “the impact of requiring non-parties to provide complete ‘transparency’ into their search methodology and custodians in responding to non-party subpoenas whenever unsubstantiated claims of production deficiencies are made would be extraordinary.”

Judge’s Ruling

Referencing DeGeer v. Gillis, Judge Grewal noted that, in that case, it was ruled that the third party’s “failure to promptly disclose the list of employees or former employees whose emails it proposed to search and the specific search terms it proposed to be used for each individual violated the principles of an open, transparent discovery process.”

Therefore, while acknowledging that “Apple likewise failed to collaborate in its efforts to secure proper discovery from Google”, Judge Grewal ruled that “production of Google’s search terms and custodians to Apple will aid in uncovering the sufficiency of Google’s production and serves greater purposes of transparency in discovery.  Google shall produce the search terms and custodians no later than 48 hours from this order. Once those terms and custodians are provided, no later than 48 hours from the tender, the parties shall meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.”

So, what do you think?  Should a third party be held to the same standard of transparency, absent a showing of deficient discovery response?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant Compelled by Court to Produce Metadata – eDiscovery Case Law

Remember when we talked about the issue of metadata spoliation resulting from “drag and drop” to collect files?  Here’s a case where it appears that method may have been used, resulting in a judgment against the producing party.

In AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society, No. 1:12-cv-053-BLW (D. ID. Apr. 30, 2013), Idaho District Judge B. Lynn Winmill granted the plaintiff’s motion to compel documents, ordering the defendant to identify and produce metadata for the documents in this case.

In this pilot project contract dispute between two health care organizations, the plaintiff filed a motion to compel after failing to resolve some of the discovery disputes with the defendant “through meet and confers and informal mediation with the Court’s staff”.  One of the disputes was related to the omission of metadata in the defendant’s production.

Judge Winmill stated that “Although metadata is not addressed directly in the Federal Rules of Civil Procedure, it is subject to the same general rules of discovery…That means the discovery of metadata is also subject to the balancing test of Rule 26(b)(2)(C), which requires courts to weigh the probative value of proposed discovery against its potential burden.” {emphasis added}

“Courts typically order the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form”, Judge Winmill continued, but noted that “there is no dispute that Good Samaritan essentially agreed to produce metadata, and would have produced the requested metadata but for an inadvertent change to the creation date on certain documents.”

The plaintiff claimed that the system metadata was relevant because its claims focused on the unauthorized use and misappropriation of its proprietary information and whether the defendant used the plaintiff’s proprietary information to create their own materials and model, contending “that the system metadata can answer the question of who received what information when and when documents were created”.  The defendant argued that the plaintiff “exaggerates the strength of its trade secret claim”.

Weighing the value against the burden of producing the metadata, Judge Winmill ruled that “The requested metadata ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ Fed.R. Civ.P. 26(b)(1). Thus, it is discoverable.” {emphasis added}

“The only question, then, is whether the burden of producing the metadata outweighs the benefit…As an initial matter, the Court must acknowledge that Good Samaritan created the problem by inadvertently changing the creation date on the documents. The Court does not find any degree of bad faith on the part of Good Samaritan — accidents happen — but this fact does weight in favor of requiring Good Samaritan to bear the burden of production…Moreover, the Court does not find the burden all that great.”

Therefore, the plaintiff’s motion to compel production of the metadata was granted.

So, what do you think?  Should a party be required to produce metadata?  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.

Plaintiff Granted Access to Defendant’s Database – eDiscovery Case Law

Last week in the EDRM Annual Meeting, one of our group discussion sessions was centered on production and presentation of native files – a topic which has led to the creation of a new EDRM project to address standards for working with native files in these areas.  This case provides an example of a unique form of native production.

In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., No. 1:12-CV-296 (N.D. Ind. Feb. 25, 2013), Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

In this case involving numerous claims, including trademark infringement and fraud, Advanced Tactical Ordnance Systems LLC (“ATO”) sought expedited discovery after it obtained a temporary restraining order against the defendants. One of its document requests sought the production of defendant Real Action Paintball’s OS Commerce database to search for responsive evidence. Real Action objected, claiming that the request asked for confidential and sensitive information from its “most important asset” that would give the plaintiff a competitive advantage and that the request amounted to “‘an obvious fishing expedition.”

To decide the issue, Judge Cosbey looked to Federal Rule of Civil Procedure 34(a)(1)(A), which allows parties to ask to “inspect, copy, test, or sample . . . any designated documents or electronically stored information . . . stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” The advisory committee notes to this rule explain that the testing and sampling does not “create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” Judge Cosbey also considered whether the discovery request was proportionate under Federal Rule of Civil Procedure 26(b)(2)(C)(iii), comparing the “burden or expense” of the request against its “likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Based on its analysis, Judge Cosbey permitted ATO’s request. The benefits of allowing the plaintiff to access the defendant’s OS Commerce database outweighed the burden of producing data from it, especially because the parties had entered a protective order. The information was particularly important to the plaintiff’s argument that the defendant was using hidden metatags referencing ATO’s product to improve its results in search engines, thereby stealing the plaintiff’s customers.

Despite the defendant company’s claims that the information the database contained was proprietary and potentially harmful to the business’s competitive advantage, the court found the company failed to establish how the information in the database constituted a trade secret or how its disclosure could harm the company, especially where much of the information had already been produced or was readily available on the company’s website. Moreover, the company could limit the accessibility of the database to “‘Attorneys’ Eyes Only.’”

So, what do you think?  Was it appropriate to grant the plaintiff direct access to the defendant’s database?  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.

More Updates from the EDRM Annual Meeting – eDiscovery Trends

Yesterday, we discussed some general observations from the Annual Meeting for the Electronic Discovery Reference Model (EDRM) group and discussed some significant efforts and accomplishments by the (suddenly heavily talked about) EDRM Data Set project.  Here are some updates from other projects within EDRM.

It should be noted these are summary updates and that most of the focus on these updates is on accomplishments for the past year and deliverables that are imminent.  Over the next few weeks, eDiscovery Daily will cover each project in more depth with more details regarding planned activities for the coming year.

Model Code of Conduct (MCoC)

The MCoC was introduced in 2011 and became available for organizations to subscribe last year.  To learn more about the MCoC, you can read the code online here, or download it as a 22 page PDF file here.  Subscribing is easy!  To voluntarily subscribe to the MCoC, you can register on the EDRM website here.  Identify your organization, provide information for an authorized representative and answer four verification questions (truthfully, of course) to affirm your organization’s commitment to the spirit of the MCoC, and your organization is in!  You can also provide a logo for EDRM to include when adding you to the list of subscribing organizations.  Pending a survey of EDRM members to determine if any changes are needed, this project has been completed.  Team leaders include Eric Mandel of Zelle Hofmann, Kevin Esposito of Rivulex and Nancy Wallrich.

Information Governance Reference Model (IGRM)

The IGRM team has continued to make strides and improvements on an already terrific model.  Last October, they unveiled the release of version 3.0 of the IGRM.  As their press release noted, “The updated model now includes privacy and security as primary functions and stakeholders in the effective governance of information.”  IGRM continues to be one of the most active and well participated EDRM projects.  This year, the early focus – as quoted from Judge Andrew Peck’s keynote speech at Legal Tech this past year – is “getting rid of the junk”.  Project leaders are Aliye Ergulen from IBM, Reed Irvin from Viewpointe and Marcus Ledergerber from Morgan Lewis.

Search

One of the best examples of the new, more agile process for creating deliverables within EDRM comes from the Search team, which released its new draft Computer Assisted Review Reference Model (CARRM), which depicts the flow for a successful Computer Assisted Review project. The entire model was created in only a matter of weeks.  Early focus for the Search project for the coming year includes adjustments to CARRM (based on feedback at the annual meeting).  You can also still send your comments regarding the model to mail@edrm.net or post them on the EDRM site here.  A webinar regarding CARRM is also planned for late July.  Kudos to the Search team, including project leaders Dominic Brown of Autonomy and also Jay Lieb of kCura, who got unmerciful ribbing for insisting (jokingly, I think) that TIFF files, unlike Generalissimo Francisco Franco, are still alive.  🙂

Jobs

In late January, the Jobs Project announced the release of the EDRM Talent Task Matrix diagram and spreadsheet, which is available in XLSX or PDF format. As noted in their press release, the Matrix is a tool designed to help hiring managers better understand the responsibilities associated with common eDiscovery roles. The Matrix maps responsibilities to the EDRM framework, so eDiscovery duties associated can be assigned to the appropriate parties.  Project leader Keith Tom noted that next steps include surveying EDRM members regarding the Matrix, requesting and co-authoring case-studies and white papers, and creating a short video on how to use the Matrix.

Metrics

In today’s session, the Metrics project team unveiled the first draft of the new Metrics model to EDRM participants!  Feedback was provided during the session and the team will make the model available for additional comments from EDRM members over the next week or so, with a goal of publishing for public comments in the next two to three weeks.  The team is also working to create a page to collect Metrics measurement tools from eDiscovery professionals that can benefit the eDiscovery community as a whole.  Project leaders Dera Nevin of TD Bank and Kevin Clark noted that June is “budget calculator month”.

Other Initiatives

As noted yesterday, there is a new project to address standards for working with native files in the different EDRM phases led by Eric Mandel from Zelle Hofmann and also a new initiative to establish collection guidelines, spearheaded by Julie Brown from Vorys.  There is also an effort underway to refocus the XML project, as it works to complete the 2.0 version of the EDRM XML model.  In addition, there was quite a spirited discussion as to where EDRM is heading as it approaches ten years of existence and it will be interesting to see how the EDRM group continues to evolve over the next year or so.  As you can see, a lot is happening within the EDRM group – there’s a lot more to it than just the base Electronic Discovery Reference Model.

So, what do you think?  Are you a member of EDRM?  If not, why not?  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.

Reporting from the EDRM Annual Meeting and a Data Set Update – eDiscovery Trends

The Electronic Discovery Reference Model (EDRM) Project was created in May 2005 by George Socha of Socha Consulting LLC and Tom Gelbmann of Gelbmann & Associates to address the lack of standards and guidelines in the electronic discovery market.  Now, beginning its ninth year of operation with its annual meeting in St. Paul, MN, EDRM is accomplishing more than ever to address those needs.  Here are some highlights from the meeting, and an update regarding the (suddenly heavily talked about) EDRM Data Set project.

Annual Meeting

Twice a year, in May and October, eDiscovery professionals who are EDRM members meet to continue the process of working together on various standards projects.  This will be my eighth year participating in EDRM at some level and, oddly enough, I’m assisting with PR and promotion (how am I doing so far?).  eDiscovery Daily has referenced EDRM and its phases many times in the 2 1/2 years plus history of the blog – this is our 144th post that relates to EDRM!

Some notable observations about today’s meeting:

  • New Participants: More than half the attendees at this year’s annual meeting are attending for the first time.  EDRM is not just a core group of “die-hards”, it continues to find appeal with eDiscovery professionals throughout the industry.
  • Agile Approach: EDRM has adopted an Agile approach to shorten the time to complete and publish deliverables, a change in philosophy that facilitated several notable accomplishments from working groups over the past year including the Model Code of Conduct (MCoC), Information Governance Reference Model (IGRM), Search and Jobs (among others).  More on that tomorrow.
  • Educational Alliances: For the first time, EDRM has formed some interesting and unique educational alliances.  In April, EDRM teamed with the University of Florida Levin College of Law to present a day and a half conference entitled E-Discovery for the Small and Medium Case.  And, this June, EDRM will team with Bryan University to provide an in-depth, four-week E-Discovery Software & Applied Skills Summer Immersion Program for Law School Students.
  • New Working Group: A new working group to be lead by Eric Mandel of Zelle Hoffman was formed to address standards for working with native files in the different EDRM phases.

Tomorrow, we’ll discuss the highlights for most of the individual working groups.  Given the recent amount of discussion about the EDRM Data Set group, we’ll start with that one today!

Data Set

The EDRM Enron Data Set has been around for several years and has been a valuable resource for eDiscovery software demonstration and testing (we covered it here back in January 2011).  The data in the EDRM Enron PST Data Set files is sourced from the FERC Enron Investigation release made available by Lockheed Martin Corporation.  It was reconstituted as PST files with attachments for the EDRM Data Set Project.  So, in essence EDRM took already public domain available data and made the data much more usable.  Initially, the data was made available for download on the EDRM site, then subsequently moved to Amazon Web Services (AWS).

In the past several days, there has been much discussion about the personally-identifiable information (“PII”) available within the FERC (and consequently the EDRM Data Set), including social security numbers, credit card numbers, dates of birth, home addresses and phone numbers.  Consequently, the EDRM Data Set has been taken down from the AWS site.

The Data Set team led by Michael Lappin of Nuix and Eric Robi of Elluma Discovery has been working on a process (using predictive coding technology) to identify and remove the PII data from the EDRM Data Set.  Discussions about this process began months ago, prior to the recent discussions about the PII data contained within the set.  The team has completed this iterative process for V1 of the data set (which contains 1,317,158 items), identifying and removing 10,568 items with PII, HIPAA and other sensitive information.  This version of the data set will be made available within the EDRM community shortly for peer review testing.  The data set team will then repeat the process for the larger V2 version of the data set (2,287,984 items).  A timetable for republishing both sets should be available soon and the efforts of the Data Set team on this project should pay dividends in developing and standardizing processes for identifying and eliminating sensitive data that eDiscovery professionals can use in their own data sets.

The team has also implemented a Forensic Files Testing Project site where users can upload their own “modern”, non-copyrighted file samples that are typically encountered during electronic discovery processing to provide a more diverse set of data than is currently available within the Enron data set.

So, what do you think?  How has EDRM impacted how you manage eDiscovery?  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.

Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected – eDiscovery Case Law

Is it possible to produce documents for discovery too early?  At least one plaintiff’s group says yes.

In the case In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), thhttps://cloudnine.com/ediscoverydaily/ralph-losey-of-jackson-lewis-llp-ediscovery-trends-part-1/e Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching.  Indiana District Judge Robert L. Miller, Jr. denied the request.

Defendant’s Discovery Efforts to Date

In this dispute over hip implant products, the defendant began producing documents in cases that were eventually centralized, despite (sometimes forceful) requests by plaintiffs’ counsel not to begin document production until the decision whether to centralize was made.  The defendant used keyword culling to reduce the universe of documents and attachments from 19.5 million documents to 3.9 million documents, and removing duplicates left 2.5 million documents and attachments. The defendant performed statistical sampling tests, with a 99 percent confidence rate, to determine that between .55% and 1.33% of the unselected documents would be responsive and (with the same confidence level) that between 1.37% and 2.47% of the original 19.5 million documents were responsive.  The defendant’s approach actually retrieved 16% of the original 19.5 million.  The defendant then performed predictive coding to identify responsive documents to be produced from the set of 2.5 million documents.

According to the order, the defendant’s eDiscovery costs “are about $1.07 million and will total between $2 million and $3.25 million.” {emphasis added}  The defendant “invited the Plaintiffs’ Steering Committee to suggest additional search terms and offered to produce the rest of the non-privileged documents from the post-keyword 2.5 million”, but they declined, “believing they are too little to assure proper document production”.

Plaintiffs’ Objections

The plaintiffs’ Steering Committee objected, claiming that the defendant’s use of keyword searching “has tainted the process”, pointing to an article which “mentioned unidentified ‘literature stating that linear review would generate a responsive rate of 60 percent and key word searches only 20 percent, and [the defendants in the case being discussed] proposed that predictive coding at a 75 percent responsive rate would be sufficient.’” {emphasis added}  They requested that the defendant “go back to its 19.5 million documents and employ predictive coding, with plaintiffs and defendants jointly entering the ‘find more like this’ commands.”  In response to the defendant’s objections that virtually starting over would cost additional millions, the Steering Committee blamed the defendant for spending millions on document production despite being warned not to begin until the cases had been centralized.

Judge’s Ruling

Noting that “[w]hat Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2)”, Judge Miller noted that “the Steering Committee’s request that Biomet go back to Square One…and institute predictive coding at that earlier stage sits uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Continuing, Judge Miller stated:

“Even in light of the needs of the hundreds of plaintiffs in this case, the very large amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of this discovery in resolving the issues, I can’t find that the likely benefits of the discovery proposed by the Steering Committee equals or outweighs its additional burden on, and additional expense to, Biomet.”

Judge Miller also rejected the Steering Committee’s position that the defendant can’t rely on proportionality arguments because they proceeded with document production while the centralization decision was pending: “The Steering Committee hasn’t argued (and I assume it can’t argue) that Biomet had no disclosure or document identification obligation in any of the cases that were awaiting a ruling on (or even the filing of) the centralization petition.”  As a result, he ruled that the Steering Committee would have to bear the expense for “production of documents that can be identified only through re-commenced processing, predictive coding, review, and production”.

So, what do you think?  Was the judge correct to accept the defendant’s multimodal approach to discovery?  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.

Yet Another Request for Facebook Data Denied – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is a recent case where the request was denied.

In Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, (D. MD Tenn. Mar. 20, 2013), Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

In this harassment and discrimination case, the defendant, after serving requests for production on the plaintiff in April 2012, deposed the plaintiff on February 7 of this year, where she testified that she and her counsel possessed several other documents that they did not produce for the defendant.  The defendant filed a motion to compel several types of data including “Facebook and/or other social media data”.  Since the motion to compel, the plaintiff produced the following items:

  • Plaintiff’s day planner;
  • 8-10 pages of documentation concerning “write-ups” and “store visits” from Plaintiff’s employment at the Dollar Tree Store;
  • All saved or exchanged emails between Plaintiff, Trowery and/or any other representatives of Dollar Tree, or involving anything relevant to Plaintiff’s claim in Plaintiff’s possession, including the email containing a draft of Plaintiff’s statement to the EEOC in support of Trowery.

With regard to the request for Facebook data, the plaintiff objected, citing “other court’s holdings that the discovery of Facebook is allowed only where “the defendant makes a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

Judge Haynes noted that while the Sixth Circuit has not yet ruled on the scope of discovery of private Facebook pages, other courts hold that:

“[M]aterial posted on a `private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”

In this case, Judge Haynes ruled that “The Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence…Thus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff’s private Facebook or other social media pages.”

The defendant also requested reasonable attorneys’ fees incurred in preparing the motion to compel, but Judge Haynes ruled “Given that Plaintiff had justifiable reasons for her discovery objections, the Court concludes that Defendant is not entitled to attorneys’ fees for its motion to compel.”

So, what do you think?  Was the judge correct to deny the Facebook request?  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 Daily Is Thirty! (Months Old, That Is)

Thirty months ago yesterday, eDiscovery Daily was launched.  It’s hard to believe that it has been 2 1/2 years since our first three posts that debuted on our first day.  635 posts later, a lot has happened in the industry that we’ve covered.  And, yes we’re still crazy after all these years for committing to a daily post each business day, but we still haven’t missed a business day yet.  Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

In addition, Jane Gennarelli has been publishing an excellent series to introduce new eDiscovery professionals to the litigation process and litigation terminology.  Here is the latest post, which includes links to the previous twenty one posts.

Thanks for noticing us!  We’ve nearly quadrupled our readership since the first six month period and almost septupled (that’s grown 7 times in size!) our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Outlook Emails Can Take Many Forms – eDiscovery Best Practices

Most discovery requests include a request for emails of parties involved in the case.  Email data is often the best resource for establishing a timeline of communications in the case and Microsoft® Outlook is the most common email program used in business today.  Outlook emails can be stored in several different forms, so it’s important to be able to account for each file format when collecting emails that may be responsive to the discovery request.

There are several different file types that contain Outlook emails, including:

EDB (Exchange Database): The server files for Microsoft Exchange, which is the server environment which manages Outlook emails in an organization.  In the EDB file, a user account is created for each person authorized at the company to use email (usually, but not always, employees). The EDB file stores all of the information related to email messages, calendar appointments, tasks, and contacts for all authorized email users at the company.  EDB files are the server-side collection of Outlook emails for an organization that uses Exchange, so they are a primary source of responsive emails for those organizations.  Not all organizations that use Outlook use Exchange, but larger organizations almost always do.

OST (Outlook Offline Storage Table): Outlook can be configured to keep a local copy of a user’s items on their computer in an Outlook data file that is named an offline Outlook Data File (OST). This allows the user to work offline when a connection to the Exchange computer may not be possible or wanted. The OST file is synchronized with the Exchange computer when a connection is available.  If the synchronization is not current for a particular user, their OST file could contain emails that are not on the EDB server file, so OST files may also need to be searched for responsive emails.

PST (Outlook Personal Storage Table): A PST file is another Outlook data file that stores a user’s messages and other items on their computer. It’s the most common file format for home users or small organizations that don’t use Exchange, but instead use an ISP to connect to the Internet (typically through POP3 and IMAP).  In addition, Exchange users may move or archive messages to a PST file (either manually or via auto-archiving) to move them out of the primary mailbox, typically to keep their mailbox size manageable.  PST files often contain emails not found in either the EDB or OST files (especially when Exchange is not used), so it’s important to search them for responsive emails as well.

MSG (Outlook MSG File): MSG is a file extension for a mail message file format used by Microsoft Outlook and Exchange.  Each MSG file is a self-contained unit for the message “family” (email and its attachments) and individual MSG files can be saved simply by dragging messages out of Outlook to a folder on the computer (which could then be stored on portable media, such as CDs or flash drives).  As these individual emails may no longer be contained in the other Outlook file types, it’s important to determine where they are located and search them for responsiveness.  MSG is also the most common format for native production of individual responsive Outlook emails.

Other Outlook file types that might contain responsive information are EML (Electronic Mail), which is the Outlook Express email format and PAB (Personal Address Book), which, as the name implies, stores the user’s contact information.

Of course, Outlook emails are not just stored within EDB files on the server or these other file types on the local workstation or portable media; they can also be stored within an email archiving system or synchronized to phones and other portable devices.  Regardless, it’s important to account for the different file types when collecting potentially responsive Outlook emails for discovery.

So, what do you think?  Are you searching all of these file types for responsive Outlook emails?  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.