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eDiscovery Best Practices: Is Disclosure of Search Terms Required?
 

I read a terrific article a couple of days ago from the New York Law Journal via Law Technology News entitled Search Terms Are More Than Mere Words, that had some interesting takes about the disclosure of search terms in eDiscovery.  The article was written by David J. Kessler, Robert D. Owen, and Emily Johnston of Fulbright & Jaworski.  The primary emphasis of the article was with regard to the forced disclosure of search terms by courts.

In the age of “meet and confer”, it has become much more common for parties to agree to exchange search terms in a case to limit costs and increase transparency.  However, as the authors correctly note, search terms reflect counsel’s strategy for the case and, therefore, work product.  Their position is that courts should not force disclosure of search terms and that disclosure of terms is “not appropriate under the Federal Rules of Civil Procedure”.  The article provides a compelling argument as to why forced disclosure is not appropriate and provides some good case cites where courts have accepted or rejected requests to compel provision of search terms.  I won’t try to recap them all here – check out the article for more information.

So, should disclosure of search terms be generally required?  If not, what does that mean in terms of utilizing a defensible approach to searching?

Personally, I agree with the authors that forced disclosure of search terms is generally not appropriate, as it does reflect strategy and work product.  However, there is an obligation for each party to preserve, collect, review and produce all relevant materials to the best of their ability (that are not privileged, of course).  Searching is an integral part of that process.  And, the article does note that “chosen terms may come under scrutiny if there is a defect in the production”, though “[m]ere speculation or unfounded accusations” should not lead to a requirement to disclose search terms.

With that said, the biggest component of most eDiscovery collections today is email, and that email often reflects discussions between parties in the case.  In these cases, it’s much easier for opposing counsel to identify legitimate defects in the production because they have some of the same correspondence and documents and can often easily spot discrepancies in the production set.  If they identify legitimate omissions from the production, those omissions could cause the court to call into question your search procedures.  Therefore, it’s important to conduct a defensible approach to searching (such as the “STARR” approach I described in an earlier post) to be able to defend yourself if those questions arise.  Demonstrating a defensible approach to searching will offer the best chance to preserve your rights to protect your work product of search terms that reflect your case strategy.

So, what do you think?  Do you think that forced disclosure of search terms is appropriate?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: What is “Reduping?”
 

As emails are sent out to multiple custodians, deduplication (or “deduping”) has become a common practice to eliminate multiple copies of the same email or file from the review collection, saving considerable review costs and ensuring consistency by not having different reviewers apply different responsiveness or privilege determinations to the same file (e.g., one copy of a file designated as privileged while the other is not may cause a privileged file to slip into the production set).  Deduping can be performed either across custodians in a case or within each custodian.

Everyone who works in electronic discovery knows what “deduping” is.  But how many of you know what “reduping” is?  Here’s the answer:

“Reduping” is the process of re-introducing duplicates back into the population for production after completing review.  There are a couple of reasons why a producing party may want to “redupe” the collection after review:

  • Deduping Not Requested by Receiving Party: As opposing parties in many cases still don’t conduct a meet and confer or discuss specifications for production, they may not have discussed whether or not to include duplicates in the production set.  In those cases, the producing party may choose to produce the duplicates, giving the receiving party more files to review and driving up their costs.  The attitude of the producing party can be “hey, they didn’t specify, so we’ll give them more than they asked for.”
  • Receiving Party May Want to See Who Has Copies of Specific Files: Sometimes, the receiving party does request that “dupes” are identified, but only within custodians, not across them.  In those cases, it’s because they want to see who had a copy of a specific email or file.  However, the producing party still doesn’t want to review the duplicates (because of increasing costs and the possibility of inconsistent designations), so they review a deduped collection and then redupe after review is complete.

Many review applications support the capability for reduping.  For example, FirstPass™, powered by Venio FPR™, suppresses the duplicates from review, but applies the same tags to the duplicates of any files tagged during first pass review.  When it’s time to export the collection, to either move the potentially responsive files on to linear review (in a product like OnDemand®) or straight to production, the user can decide at that time whether or not to export the dupes.  Those dupes have the same designations as the primary copies, ensuring consistency in handling them downstream.

So, what do you think?  Does your review tool support “reduping”?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Deliberately Produce Wrong Cell Phone, Get Sanctioned
 

In Moreno v. Ostly, No. A127780, (Cal. Ct. App. Feb. 22, 2011), the California Court of Appeals affirmed the trial court’s award of monetary sanctions imposed against the plaintiff and her law firm in the amount of $13,500 for counsel and plaintiff’s discovery misconduct related to the preservation of text messages.

The plaintiff sued her former law firm employer alleging sexual harassment, retaliation and failure to pay back wages.  She claimed that a partner at the firm “forced himself on her sexually” on a daily basis and that she was fired when she notified the partner that she wished to sever the “intimate aspect of their relationship.”  In discovery, defendants sought copies of relevant e-mails and text messages between the plaintiff and the partner.  After the parties' meet and confer efforts failed, the court ordered the plaintiff to produce her personal computer and cell phone for inspection.  The inspection revealed that the cell phone produced was different from the one plaintiff had during her course of employment.  When questioned regarding the discrepancy, plaintiff’s counsel responded that the defendants would have to undertake further discovery efforts to determine what happened to the relevant equipment.  The plaintiff’s attorney conceded that many of the text messages on the prior phone had been used against the defendants before the EEOC, but had not been preserved prior to the disposal of the cell phone.

The defendants filed a motion for terminating and monetary sanctions or, in the alternative, a willful suppression of evidence jury instruction.  The trial court awarded monetary sanctions, finding the plaintiff and her counsel deliberately withheld the fact that the plaintiff failed to preserve her cell phone data, causing opposing counsel and the court to expend unnecessary resources.  The court found plaintiff’s counsel’s conduct willful and his explanation citing a conflict between the duty of loyalty to the client and the duty of candor to opposing counsel and the court “not very credible.”

The court of appeals concluded the trial court's award of monetary sanctions was supported by substantial evidence, and was well within the discretion of the court.

So, what do you think?  Are you aware of any other blatant examples of evasive discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: eDiscovery Case Law Update, by Littler Mendelson P.C.

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: No Bates, No Problem for Native Files

As today’s document collections are almost entirely electronic in a format used by the native application (i.e., “native files”), it has become more commonplace to produce those original native files to opposing counsel in eDiscovery.  Producing the native files saves costs in converting the files to be produced to an image format (either TIFF or PDF) before production.  And, for the recipients of a production, receiving native files enables them to also receive the metadata associated with those files (as it is contained within the files themselves).  If you don’t understand the benefits of receiving the underlying metadata, try reviewing an image of an Excel spreadsheet and see if you can understand how the numbers were calculated without the underlying formulas.  Not so easy, is it?

However, it seems to “upset the legal apple cart” when attorneys have to contemplate applying Bates numbers to native files.  Because many native file types are not stored in a typical paginated, document-oriented format, it is difficult to impossible to determine the number of pages for each file.  Because attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily.  That would be like printing out every email in your Inbox before reading them.

It has become commonplace for parties to agree (and courts to accept) a file-level “Bates” or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number (just like a Bates number, only they’re not stamped in the file, but used as the file name).  These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.  This form of production has become common for any size of case.

If there’s a concern about referencing individual page numbers at deposition or trial, any files used as exhibits can still be converted to image (or printed) and a number applied.  You could simply use the UPI as the prefix, followed by a sequential number, so page 3 of the 11th file in the production could be stamped like this: PROD000011-00003.  This enables you to uniquely identify each native file, and still correlate the native file with pages when printed.

Of course, when you have to redact files, it’s still more common to convert those files to image and apply the redactions to the images, as redaction of native files (though performed in some cases) has not yet become a widespread practice.  One miracle at a time!

So, what do you think?  Are your productions routinely in native format?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: George Socha of Socha Consulting
 

This is the seventh of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are eight active projects with over 300 members from 81 participating organizations. George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

On the very “flip” side, the number one trend to date in 2011 is predictions about trends in 2011.  They are part of a consistent and long-term pattern, which is that many of these trend predictions are not trend predictions at all – they are marketing material and the prediction is “you will buy my product or service in the coming year”.

That said, there are a couple of things of note.  Since I understand you talked to Tom about Apersee, it’s worth noting that corporations are struggling with working through a list of providers to find out who provides what services.  You would figure that there is somewhere in the range of 500 or so total providers.  But, my ever-growing list, which includes both external and law firm providers, is at more than 1,200.  Of course, some of those are probably not around anymore, but I am confident that there are at least 200-300 that I do not yet have on the list.  My guess when the list shakes out is that there are roughly 1,100 active providers out there today.  If you look at information from the National Center for State Courts and the Federal Judicial Center, you’ll see that there are about 11 million new lawsuits filed every year.  I saw an article in the Cornell Law Forum a week or two ago which indicated that there are roughly 1.1 million lawyers in the country.  So, there are 11 million lawsuits, 1.1 million lawyers and 1,100 providers.  Most of those lawyers have no experience with eDiscovery and most of those lawsuits have no provider involved, which means eDiscovery is still very much an emerging market, not even close to being a mature market.  As fast as providers disappear, through attrition or acquisition, new providers enter the market to take their place.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the second afternoon of LTNY}  Maybe this is overly optimistic, but part of what I’m seeing in leading up to the conference, on various web sites and at the conference itself, is that a series of incremental changes taking place over a long period are finally leading to some radical differences.  One of those differences is that we finally are reaching a point where a number of providers can make the claim to being “end-to-end providers” with some legitimacy.  For as long as we’ve had the EDRM model, we’ve had providers that have professed to cover the full EDRM landscape, by which they generally have meant Identification through Production.  A growing number of providers not only cover that portion of the EDRM spectrum but have some ability to address Information Management, Presentation, or both   By and large, those providers are getting there by building their software and services based on experience and learning over the past 8 to 10 to 12 years, introducing new offerings at the show that reflect that learned experience.

A couple of days ago, I only half-jokingly issued “the Dyson challenge” (as in the Dyson vacuum cleaner).  Every year, come January, our living room carpet is strewn with pine tree needles and none of the vacuum cleaners that we have ever had have done a good job of picking up those needles.  The Dyson vacuum cleaner claims it cyclones capture more dirt than anything, but I was convinced that could not include those needles.  Nonetheless I tried, and to my surprise it worked like a charm!  I want to see the providers offering products able to perform at that high level, not just meeting but exceeding expectations.

I also see a feeling of excitement and optimism that wasn’t apparent at last year’s show.

What are you working on that you’d like our readers to know about?

As I mentioned, we have launched the Apersee web site, designed to allow consumers to find providers and products that fit their specific needs.  The site is in beta and the link is live.  It’s in beta because we’re still working on features to make it as useful as possible to customers and providers.  We’re hoping it’s a question of weeks, not months, before those features are implemented.  Once we go fully live, we will go two months with the system “wide open” – where every consumer can see all the provider and product information that any provider has put in the system.  After that, consumers will be able to see full provider and product profiles for providers who have purchased blocks of views.  Even if a provider does not purchase views, all selection criteria it enters are searchable, but search results will display only the provider’s name and website name.  Providers will be able to get stats on queries and how many times their information is viewed, but not detailed information as to which customers are connecting and performing the queries.

As for EDRM, we continue to make progress with an array of projects and a growing number of collaborative efforts, such as the work the Data Set group has down with TREC Legal and the work the Metrics group has done with the LEDES Committee. We not only want to see membership continue to grow, but we also want to continue to push for more active participation to continue to make progress in the various working groups.  We’ve just met at the show here regarding the EDRM Testing pilot project to address testing standards.  There are very few guidelines for testing of electronic discovery software and services, so the Testing project will become a full EDRM project as of the EDRM annual meeting this May to begin to address the need for those guidelines.

Thanks, George, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Christine Musil of Informative Graphics Corporation (IGC)
 

This is the fourth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Christine Musil.  Christine has a diverse career in engineering and marketing spanning 15 years. Christine has been with IGC since March 1996, when she started as a technical writer and a quality assurance engineer. After moving to marketing in 2001, she has applied her in-depth knowledge of IGC's products and benefits to marketing initiatives, including branding, overall messaging, and public relations. She has also been a contributing author to a number of publications on archiving formats, redaction, and viewing technology in the enterprise.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

For us, the biggest trend is elevation of the importance of eDiscovery, from what happens the minute you find out you have a lawsuit until the end of the case.  There’s a lot more discussion about how you can prevent it, how you can be better prepared, and I think that’s where the new buzzword, information governance, comes in.  We partner with OpenText and we partner with EMC on their content management side and we definitely see them pushing into the eDiscovery market to provide an end-to-end solution and stop trying to treat eDiscovery as an isolated issue. I think that the elevation of eDiscovery and inclusion of eDiscovery more into the regular business workflow of an organization is a pretty significant trend to watch.

Another trend that I see is an elevation of the use of search and how people can get more out of their searches to save time and cost.  This may be somewhat skewed based on our perspective in the market, but we’ve had a lot of requests for our redaction software to pick up the search that has already been done. Providers work so hard to come up with amazingly complicated algorithms to find data.  Why reinvent the wheel?  The companies all ask why all the other vendors can’t just take those search results and use it. 

Since you’ve written a white paper about native review and redaction, where do you see that heading?  Well, I hope that people will stop printing things out, scanning it back in to TIFF, then OCRing it and handing everybody back a disk of flat images and a separate disk with OCR text.  I sort of understand why they do it, but I think a less paranoid or adversarial approach through more effective “meet and confer” agreements on how you are going to present things are going to make it so much easier for everybody.  I hope in three to five years people say “I’m not afraid to hand you my native files because I know how to check them and know what metadata they contain and whether there are any tracked changes or other potential issues”.  So, the paranoia and fear that people have about the unknown that they can’t see in their documents and whether there is a smoking gun in there should die down.  I think people are getting smarter – now that they’re not producing paper – as to what  electronic files contain.  Hopefully, they will understand that native format is OK and when they need to redact, it’s OK to use PDF format to do so.  You tell the other side what you’re doing and what they’re going to get and it becomes a more open and well understood process.

I’m also on the EDRM XML committee and hope a standard load file format that transmits data seamlessly from one side to the other and contains all the information about what has been redacted, among other things, will make things easier on everybody, getting information through the process more seamlessly.  We’re writing white papers about the data set to educate the vendors on how to use it and I have high hopes for what we will be able to accomplish there.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the first morning of LTNY}  Well, that’s hard since LegalTech just started [smiles].  I can tell you that in discussions with some of our partners, we’re seeing more support for mobile devices, support for the iPad, etc., to help lawyers work wherever they are and be more efficient wherever they are.  And, I think that literally goes all the way to the courtroom.  So, you’re seeing support for more devices and smaller screens, wherever attorneys get information.

What are you working on that you’d like our readers to know about?

I’m moderating a panel discussion {at LegalTech} titled, The Debate on Native Format Production and Redaction, which includes Craig Ball, George Socha, Tom O’Connor and Browning Marean.  I wrote a white paper last year entitled The Reality of Native Format Production and Redaction, which has inspired this panel discussion here at LegalTech.  So, that should be informative and interesting.  We’ve noticed that there’s just an awful lot of confusion in terms of what’s really required and what’s acceptable and the white paper and panel discussion really speaks to that.  We’re trying to educate our customers and help our partners educate their clients.

The other thing we’re announcing here is the release of integration to OpenText eDOCS.  We’ve been partners with OpenText for content management since 2002 and are very excited to extend our partnership to include this new area. eDOCS has a great presence in the legal space and we look forward to working with them.

Thanks, Christine, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Case Law: Responses to FOIA Requests Must Be Searchable

Southern District of New York Judge Shira A. Scheindlin is at it again!  Her latest ruling is that the federal government must provide documents “in a usable format” when it responds to Freedom of Information Act (FOIA) requests.

Noting that “Once again, this Court is required to rule on an eDiscovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”, Judge Scheindlin ruled that federal agencies must turn over documents that include “metadata,” which allows them to be searched and indexed.  Indicating that “common sense dictates” that the handling of FOIA requests should be informed by “the spirit if not the letter” of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered “a lame excuse” for delivering non-searchable documents.

In National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, the National Day Laborer Organizing Network, Center for Constitutional Rights and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law sued to require production of a wide range of documents under the Freedom of Information Act in August 2010.  In response, the government agency defendants produced documents grouped together in large files that were not searchable, for which individual documents could not be easily identified, with emails separated from their attachments.

Consistent with the decisions of several state courts regarding their own FOIA statutes, Judge Scheindlin ruled that the federal law requires that metadata, which allows for electronic files to be organized and searched, must be retained in the records agencies produce.  While the federal act doesn’t specifically specify the form in which documents must be delivered, it does require that documents be provided in any “format” that is “readily reproducible” by the agency in that format.  Metadata, in the FOIA context, is “readily reproducible,” Judge Scheindlin noted.

Judge Scheindlin also observed that “whether or not metadata has been specifically requested,” the production of non-searchable documents is “an inappropriate downgrading” of electronically stored information and provision of files “stripped of all metadata and lumped together without any indication of where a record begins and ends” is not an “acceptable form of production,” she said.

A copy of the opinion and order can be found here.

So, what do you think?  Have you been the recipient of a “lumped together” non-searchable production recently?  Please share any comments you might have or if you’d like to know more about a particular topic.

Deadline Extended to Vote for the Most Significant eDiscovery Case of 2010
 

Our ‘little experiment’ to see what the readers of eDiscoveryDaily think about case law developments in 2010 needs more time as we have not yet received enough votes yet to have a statistically significant result.  So, we’ve extended the deadline to select the case with the most significant impact on eDiscovery practices in 2010 to February 28.  Evidently, calling out the vote on the last business day before LegalTech is not the best timing.  Live and learn!

As noted previously, we have “nominated” five cases, which we feel were the most significant in different issues of case law, including duty to preserve and sanctions, clawback agreements under Federal Rule of Evidence 502, not reasonably accessible arguments and discoverability of social media content.  If you feel that some other case was the most significant case of 2010, you can select that case instead.  Again, it’s very important to note that you can vote anonymously, so we’re not using this as a “hook” to get your information.  You can select your case without providing any personal information.  However, we would welcome your comments as to why you selected the case you did and you can – optionally – identify yourself as well.

To get more information about the nominated cases (as well as other significant cases), click here.  To cast your vote, click here.

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Vote for the Most Significant eDiscovery Case of 2010!
 

Since it’s awards season, we thought we would get into the act from an eDiscovery standpoint.  Sure, you have Oscars, Emmys and Grammys – but what about “EDDies”?  (I’ll bet you wondered what Eddie Munster could possibly have to do with eDiscovery, didn’t you?)

So, we’re conducting a ‘little experiment’ to see what the readers of eDiscoveryDaily think about case law developments in 2010.  This is our first annual “EDDies” award to select the case with the most significant impact on eDiscovery practices in 2010.  No cash or prizes being awarded, or even a statuette, but a chance to see what the readers think was the most important case of the year from an eDiscovery standpoint.

We have “nominated” five cases below, which we feel were the most significant in different issues of case law, including duty to preserve and sanctions, clawback agreements under Federal Rule of Evidence 502, not reasonably accessible arguments and discoverability of social media content.  We have a link to review more information about each case, and a link at the bottom of this post to cast your vote.

Very Important!  You can vote anonymously, so we’re not using this as a “hook” to get your information.  You can click on the link at the bottom, select your case and be done with it.  However, we would welcome your comments as to why you selected the case you did and you can – optionally – identify yourself as well.  eDiscoveryDaily will publish selected comments to reflect opinion of the voters as well as the vote results on February 7.  Click here to cast your vote now!

So, here are the cases:

Duty to Preserve/Sanctions

  • The Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, 29010 U.S. Dist. Lexis 4546 (S.D.N.Y. Jan. 15, 2010) (as amended May 28, 2010) – “Pension Committee”: The case that defined negligence, gross negligence, and willfulness in the electronic discovery context and demonstrated the consequences (via sanctions) resulting from those activities.  Judge Shira Scheindlin titled her 85-page opinion “Zubulake Revisited: Six Years Later”.  For more on this case, click here.
  • Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3530097 (D. Md. 2010) – “Victor Stanley II”: The case of “the gang that couldn’t spoliate straight” where one of the defendants faced imprisonment for up to 2 years (subsequently set aside on appeal) and the opinion included a 12 page chart delineating the preservation and spoliation standards in each judicial circuit.  For more on this case, click here and here.

Clawback Agreements

  • Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan. July 22, 2010) – “Rajala”: The case that addressed the applicability of Federal Rule of Evidence 502(d) and (e) for “clawback” provisions for inadvertently produced privileged documents.  For more on this case, click here.

Not Reasonably Accessible

  • Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010) – “Major Tours”: The case that established a precedent that a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold caused the data not to be available via any other means.  For more on this case, click here.

Social Media Discovery

  • Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010) – “Crispin”: The case that used a 24 year old law (The Stored Communications Act of 1986) to address whether ‘private’ data on social networks is discoverable.  For more on this case, click here.

If you feel that some other case was the most significant case of 2010, you can select that case instead.  Other notable cases include:

  • Rimkus v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010): Where District Court Judge Lee Rosenthal examined spoliation laws of each of the 13 Federal Circuit Courts of Appeal.
  • Orbit One Communications Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010): Magistrate Judge James C. Francis concluded that sanctions for spoliation must be based on the loss of at least some information relevant to the dispute (differing with “Pension Committee” in this manner).
  • DeGeer v. Gillis, 2010 U.S. Dist. Lexis 97457(N.D. Ill. Sept. 17, 2010): Demonstration of inadvertent disclosure made FRE 502(d) effective, negating waiver of privilege.
  • Takeda Pharmaceutical Co., Ltd. v. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010): Defendants’ motion to compel the production of ESI for a period of 18 years was granted, with imposed cost-shifting.
  • E.E.O.C. v. Simply Storage Management, LLC, 2010 U.S. Dist. Lexis 52766 (S.D. Ind. May 11, 2010): EEOC is ordered to produce certain social networking communications.
  • McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010): Motion to Compel discovery of social network account log-in names and passwords was granted.

Click here to cast your vote now!  Results will be published in eDiscoveryDaily on February 7.

The success of this ‘little experiment’ will determine whether next year there is a second annual “EDDies” award.  😉

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Searching: For Defensible Searching, Be a "STARR"
 

Defensible searching has become a priority in eDiscovery as parties in several cases have experienced significant consequences (including sanctions) for not implementing a defensible search strategy in responding to discovery requests.

Probably the most famous case where search approach has been an issue was Victor Stanley, Inc. v. Creative Pipe , Inc., 250 F.R.D. 251 (D. Md. 2008), where Judge Paul Grimm noted that “only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents” and found that privilege on 165 inadvertently produced documents was waived, in part, because of the inadequacy of the search approach.

A defensible search strategy is part using an effective tool (with advanced search capabilities such as “fuzzy”, wildcard, synonym and proximity searching) and part using an effective approach to test and verify search results.

I have an acronym that I use to reflect the defensible search process.  I call it “STARR” – as in “STAR” with an extra “R” or Green Bay Packer football legend Bart Starr (sorry, Bears fans!).  For each search that you need to conduct, here’s how it goes:

  • Search: Construct the best search you can to maximize recall and precision for the desired result.  An effective tool gives you more options for constructing a more effective search, which should help in maximizing recall and precision.  For example, as noted on this blog a few days ago, a proximity search can, under the right circumstances, provide a more precise search result without sacrificing recall.
  • Test: Once you’ve conducted the search, it’s important to test two datasets to determine the effectiveness of the search:
    • Result Set: Test the result set by randomly selecting an appropriate sample percentage of the files and reviewing those to determine their responsiveness to the intent of the search.  The appropriate percentage of files to be reviewed depends on the size of the result set – the smaller the set, the higher percentage of it that should be reviewed.
    • Files Not Retrieved: While testing the result set is important, it is also important to randomly select an appropriate sample percentage of the files that were not retrieved in the search and review those as well to see if any responsive hits are identified as missed by the search.
  • Analyze: Analyze the results of the random sample testing of both the result set and also the files not retrieved to determine how effective the search was in retrieving mostly responsive files and whether any responsive files were identified as missed by the search performed.
  • Revise: If the search retrieved a low percentage of responsive files and retrieved a high percentage of non-responsive files, then precision of the search may need to be improved.  If the files not retrieved contained any responsive files, then recall of the search may need to be improved.  Evaluate the results and see what, if any, revisions can be made to the search to improve precision and/or recall.
  • Repeat: Once you’ve identified revisions you can make to your search, repeat the process.  Search, Test, Analyze and (if necessary) Revise the search again until the precision and recall of the search is maximized to the extent possible.

While you can’t guarantee that you will retrieve all of the responsive files or eliminate all of the non-responsive ones, a defensible approach to get as close as you can to that goal will minimize the number of files for review, potentially saving considerable costs and making you a “STARR” in the courtroom when defending your search approach.

So, what do you think?  Are you a “STARR” when it comes to defensible searching?  Please share any comments you might have or if you’d like to know more about a particular topic.