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Proportionality

Court’s “Jazzy” Decision to Award Costs May “Bug” Plaintiff, But Defendant Doesn’t Mind a “Bit”: eDiscovery Case Law

Hey, I could have said if it doesn’t “fit”, you must acquit…

In Fitbug Ltd. v. Fitbit, Inc., Case No. 13-1418 SC (N.D. Cal. May 13, 2015), California District Judge Samuel Conti, throwing in a jazz reference during his opinion, ruled to tax over $63,000 in costs to be paid to the prevailing defendant in the case.

Case Background

In this trademark infringement case between two companies that manufacture and sell portable electronic fitness tracking devices, the Court granted summary judgment in favor of the defendant. Pursuant to that judgment, the defendant submitted a bill of costs, seeking $88,888.86 in costs (apparently, they like the number “8”). The plaintiff objected, and the Clerk ultimately taxed costs of $54,089.15.

Despite the Clerk of the Court’s substantial reductions to the defendant’s costs, the plaintiff believed that the amount taxed still included non-taxable items. As a result, the plaintiff filed a motion for review of costs allowed by the Clerk to ask the Court to either reject the defendant’s claimed costs entirely or, at a minimum, reduce them by a further $27,468.58. In turn, the defendant opposed any further reductions in its costs.

Judge’s Ruling

With regard to the plaintiff’s argument that because the defendant’s declaration supporting its bill of costs did not specifically state that its claimed costs are “allowable by law” (as required by Civil Local Rule 54-1(a)), Judge Conti began his analysis by getting the semantics out of the way (and providing a handy jazz reference to boot):

“While Fitbug apparently believes ‘[n]o other words can tell it half so clearly,’ the requirement a party say the ‘three little words,’ ‘allowable by law,’ is merely a reminder that the Court expects them to submit costs they believe are taxable, not a set of magic words necessary to receive any costs. Cf. Sarah Vaughan, Three Little Words, on Live at the London House (Mercury Records 1958), available at: https://www.youtube.com/watch?v=9WSZ6IRC-ys.” (yes, he even provided a YouTube link) “As the language of Fitbit’s declaration makes clear, Fitbit submitted these costs in good faith and understood that doing so was a representation to the Court and the Clerk that the costs were “allowed by law.” Now the Court must decide whether Fitbit was right or not. The Court declines to elevate form over substance to avoid making that decision.”

As for the specifics of the eDiscovery costs, Judge Conti acknowledged that “Section 1920 was enacted in 1853 and as a result does not speak directly on the taxability of electronic discovery costs”, but noted that in this “vacuum”, “courts have analogized the language of Section 1920(4), which authorizes the taxation of ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case . . .,’ to a variety of electronic discovery expenses.” As a result, Judge Conti denied the plaintiff’s motion for review on these costs, deciding to tax $32,282.05 in data extraction and processing costs and another $4,466.91 in costs for production deliveries. Taken together with costs for deposition and video transcripts, photocopying and scanning and preparation of demonstrative exhibits, Judge Conti determined the total costs to be taxed to be $63,660.94.

So, what do you think? Was that the right amount to award? Or should the judge have awarded a lesser amount? Please share any comments you might have or if you’d like to know more about a particular topic.

BTW, a link to the terrific Sarah Vaughan song referenced in the judge’s opinion can be found here.

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

This Guy Says that Computers Could Eventually Replace Lawyers – In the Courtroom: eDiscovery Trends

Over four years ago, we covered an article in The New York Times that discussed how the use of artificial intelligence could lead to replacing “armies of expensive lawyers” during the eDiscovery process. Now, a new article in The Wall Street Journal online goes a step further, speculating that “computers will eventually pass the legal bar exam and defendants will be given the right to be represented by a computational attorney if they so wish”.

What Big Data Means for the Legal System, written by Robert Plant (not the Led Zeppelin singer, but a professor at the University of Miami, as well as an author and blogger for Harvard Business Review & WSJ Leadership Expert) discusses how artificial intelligence researchers have used the legal domain as an exploratory space to test theories for decades, but with limited success. The advent of big data has changed that, enabling us to analyze not only text but many other data types such as pictures, email, video and voice. As Plant notes, this capability “allows lawyers to look for patterns and correlations across vast data sets previously inaccessible.”

Plant uses analysis of judges’ behavior in cases as an example, suggesting the ability to obtain answers to questions like: “How does the Judge rule on certain types of cases can be studied by date and time? Does the judge dismiss cases for a consistent pattern of reasoning? How do holidays affect decisions? Do they sentence harder at different times of the day?”

Because of big data analytics, Plant predicts that “[m]any of the routine tasks now performed by entry-level lawyers or paralegals will increasingly be undertaken by analytics; case and trial strategies will be developed by legal informatics as will increasingly jury-selection strategies.” As a result, Plant takes the concept to a somewhat controversial conclusion, as follows:

“It is clear that with advances in machine learning, computers will eventually pass the legal bar exam and defendants will be given the right to be represented by a computational attorney if they so wish and thus court rooms could see a truly new form of human computer interaction in which the computer answers the question ‘does the client have a case?’”

Must he “ramble on”? Computers replace lawyers?!? In the courtroom?!? He sure isn’t showing the legal profession a “whole lotta love”, is he? (sorry, I couldn’t resist)

Clearly, we’ve seen the application of artificial intelligence result in significant benefits during the eDiscovery process, with several cases over the past few years endorsing technology assisted review (including this latest case just last month) as well as initiatives to apply technology to information governance (such as the Information Governance Initiative launched last year). Is it that far of a stretch to apply technology to decision making in the courtroom too? Or is the author simply “dazed and confused”? (ok, I really will stop now)

So, what do you think? Will clients someday be represented by computers in the courtroom? Please share any comments you might have or if you’d like to know more about a particular topic.

Clipart from Clipartheaven.com

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

“How Much Will it Cost?” is Not Necessarily the Right Question to Ask: eDiscovery Best Practices

This is a topic we covered last fall, but it has come up again several times with clients (and prospective clients) recently and since we have so many new viewers and subscribers in the past couple of months (thanks to our recently announced education partnership with EDRM and some very kind words from Craig Ball on his excellent Ball in Your Court blog), it bears discussing again.

By far, the most important (and, therefore, the most asked) question asked of eDiscovery providers is “How much will it cost?”. Actually, you should be asking a few questions to get that answer – if they are the right questions, you can actually get the answer you seek.

With these questions, you can hopefully prevent surprises and predict and control costs:

  • What is the Unit Price for Each Service?: It’s important to make sure that you have a clear understanding of every unit price the eDiscovery provider includes in an estimate. Some services may be charged per-page or per-document, while others may be charged per gigabyte, and others may be charged on an hourly basis. It’s important to understand how each service is being charged and ensure that the price model makes sense.
  • Are the Gigabytes Counted as Original or Expanded Gigabytes?: For the per gigabyte services, it’s also important to make sure that you whether they are billed on the original GBs or the expanded GBs. Expanded GBs can be two to three times as large (or more) as the original GBs. Some services are typically billed on the original GBs (or at least the unzipped GBs) while others are typically billed on the expanded GBs. It’s important to know which metric is used; otherwise, your ESI collection may be larger than you think and you may be in for a surprise when the bill comes.
  • Will I Get an Estimate in Advance for Hourly Billed Services?: When you ask for specific hourly billed services from the provider (such as professional consulting or technician services) to complete a specific task, it’s important to get an estimate to complete that task as well as advanced notification if the task will require more time than estimated.
  • What Other Costs are Billed?: It’s not uncommon for other charges to be included in invoices, such as user fees for hosting services (not all hosting providers charge user fees, so it’s important to comparison shop) or project management, which can be an important component to the services provided by the eDiscovery provider. And, don’t forget charges for supplies and shipping. The rates charged for these services can vary widely, from non-existent to exorbitant. Understanding what other costs are being billed and the rates for those services is important to controlling costs.
  • If Prices are Subject to Change, What is the Policy for Those Changes and Notification of Clients?: Let’s face it, prices do change, even in the eDiscovery industry. In ongoing contracts, most eDiscovery providers will retain the right to change prices to reflect the cost of doing business (whether they exercise those rights or not). It’s important to know the terms that your provider has set for the ability to change prices, what the notification policy is for those price changes and what your options are if the provider exercises that right.

With the right questions and a good understanding of your project parameters, you can get to the answer to that elusive question “How much will it cost?”.

So, what do you think? How do you manage costs with your eDiscovery providers? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

A New Calculator from EDRM and Other EDRM News: eDiscovery Trends

Does it seem appropriate for us to display a calculator on tax day? Yes, it does. 🙂

Over a year ago, we discussed budget calculators available from the Metrics section of the EDRM web site and reviewed the four calculators available at the time (here, here, here and here).

In the past couple of weeks, EDRM added a new calculator. Let’s take a look.

The EDRM Data Calculator is an Excel spreadsheet file that helps you better estimate how much data you may have in matters involving eDiscovery. The estimates are designed to help you and your organization to prepare budgets, manage workflows, and measure and improve your eDiscovery processes.

The EDRM Data Calculator consists of a Core Data Calculator and a Supplemental Data Calculator, as follows:

  • Core Data Calculator: Uses information you enter or select to prepare two sets of estimates. First, it calculates how much your data may increase in size because of steps taken to expand the data – steps such as unpacking compressed files. Second, the Core Data Calculator estimates how much the size of your data set will decrease as a result of processing steps such as the use of de-Nisting, de-duplication, search terms, and CAR (computer assisted review).
  • Supplemental Data Calculator: Uses additional information you enter to arrive at two additional sets of estimates about your data after it has been expanded and then reduced. First, it delivers four sets of estimates about three major data types: email files, structured data, and unstructured data. The sets are percentage expected (e.g., 15% of your data will be email files), estimated GBs (e.g., you will have 12 GB of email), estimated files/GB (e.g., you will have 500 files per GB), and total files (e.g., you will have 14,000 files). Second, the Supplemental Data Calculator delivers the same four sets of estimates for six subcategories of unstructured data: word processing files, spreadsheet files, presentation files, image files, PDF files, and other unstructured data.

The EDRM Data Calculator is clearly formatted and color coded to identify cells where data needs to be entered (yellow, for entries such as the number of starting GB) and cells where you select an option from a menu (gray, for entries such as selecting a process to reduce data). The spreadsheet also provides a “calculator” section for recording assumptions and a “report” section to show the results based on those assumptions. And, the calculator comes with intuitive step-by-step instructions (which are available as a nine page PDF file, with screen shots for illustration). Perhaps the spreadsheet could be better formatted for printing and it isn’t set to protect the calculated cells, so they could be inadvertently overwritten, but otherwise, it looks like a nice model for estimating data volumes.

You can get more information about the EDRM Data Calculator, as well as download the actual calculator and instructions here.

As for other EDRM news, it’s not too late to register for today’s free live EDRM and ACEDS Webinar, “The Social Media Quick Peek: Early Data Assessment.” To register, click here.

And, in less than a month, is the EDRM 2015 Spring Workshop at the Saint Paul Hotel in St. Paul, MN. This is the kickoff for the 2015-2016 EDRM year. The 2015 EDRM Spring Workshop is scheduled for May 5-6, with a reception on the evening of May 4. Click here for more information. If you’ve considered becoming an EDRM member, this is an excellent time to do so!

So, what do you think? How do you estimate your eDiscovery data? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Awarded Sanctions and Reimbursement of Some eDiscovery Costs: eDiscovery Case Law

In Engineered Abrasives, Inc. v. American Machine Products & Service, Inc. No. 13C7342 (N.D. Ill. Mar. 18, 2015), Illinois District Judge Sara L. Ellis awarded the plaintiff damages, attorneys’ fees and some requested costs, as well as granting the plaintiff’s motion for sanctions and ordering the defendants to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination, which the plaintiff maintained was necessitated by Defendants’ evasive and incomplete responses and their failure to produce documents during discovery.

Case Background

The plaintiff sued the defendants, former employees of the plaintiff, claiming that the defendants were misrepresenting themselves as representatives of the plaintiff’s company and unfairly competing with EA. After the defendants failed to answer the complaint, they were found to be in default. “Extensive” discovery was conducted on the plaintiff’s damages and an evidentiary hearing was held in November 2014 on the plaintiff’s request for relief, which included monetary damages and reimbursement of attorneys’ fees and other costs, including eDiscovery costs. This opinion and order was based on the “evidence presented at that hearing and the parties’ other submissions”.

Judge’s Opinion

After some analysis, Judge Ellis awarded the plaintiff $207,257 in monetary damages and $499,088.80 in attorneys’ fees, which included PACER costs. Of most of the other costs that Judge Ellis considered, she allowed reimbursement of the $400 filing fee for initiating the action, $165 for service of the Complaint and $55 for one hour for service of summons or a subpoena and disallowed all other requested costs.

As for the eDiscovery costs, Judge Ellis stated that Section 1920 does “not expressly provide for the recovery of e-discovery costs, meaning that the only route to recovery of these costs must pass through the strictures of 28 U.S.C. § 1920(4), which allows for the recovery of ‘fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.’” She also noted that “this Court will follow those courts that have found compensable the costs ‘associated with the conversion of [electronically stored information] into a readable format, such as scanning or otherwise converting a paper version to an electronic version or converting native files to TIFF’ but not the ‘costs related to the `gathering, preserving, processing, searching, culling and extracting of [electronically stored information].’”

As the plaintiff requested compensation for several charges associated with eDiscovery, including for “OCR & TIFF Conversion,” “process[ing] native files through ESI utility to allow for capturing of metadata/indexing of material,” “load[ing] into Summation,” and “prepar[ing] search filters and sav[ing] shared set to database for review team,” Judge Ellis found that “[o]nly the first $48.24 charge is properly compensable, as it involves the conversion of documents into a readable format.” (emphasis added)

Judge Ellis next considered whether the defendants could be sanctioned for their “evasive and incomplete responses and their failure to produce documents during discovery” which led to the plaintiff’s computer forensic examination. With regard to that, Judge Ellis stated: “The Court agrees with EA that Defendants’ conduct during the discovery process warrants sanctions. Defendants’ actions during the discovery process cannot be said to have been done in good faith. They unnecessarily prolonged this case, necessitating the Court’s intervention on several occasions and multiplying the costs involved in the litigation.” As a result, Judge Ellis ordered the defendants to reimburse the plaintiff $12,800 for the cost of conducting the forensic computer examination.

So, what do you think? Was the court right to grant the motion for sanctions? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: eDiscovery Case Law

In Colosi v. Jones Lang LaSalle Americas, Inc., 14-3710 (6th Cir. Ohio 2015), the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Case Background

The plaintiff (and appellant) lost a wrongful termination suit against the defendant (and appellee), her former employer. As the prevailing party, the defendant filed a $6,369.55 bill of costs that the court clerk approved without modification. The plaintiff objected to most of the charges and moved the district court to reduce the bill to $253.50. The district court denied the motion, finding each cost reasonable, necessary to the litigation, and properly taxable under statute. The plaintiff renewed her objections on appeal to the Sixth Circuit Court of Appeals.

The plaintiff contested, as a matter of law, the recoverability of the costs associated with the synchronization of her deposition video and transcript, costs flowing from a cancelled deposition and transcription costs for the depositions of three other witnesses she deemed as unnecessary. She also challenged the district court’s decision to tax the cost of imaging her personal computer’s hard drive, arguing that “as a matter of law, ‘most electronic discovery costs such as the imaging of hard drives are not recoverable as taxable costs.’” She referenced the narrow interpretation of taxable costs in Race Tires America, Inc. v. Hoosier Racing Tire Corp to bolster her argument.

Appellate Court’s Opinion

The appellate court stated that “The taxing statute allows the prevailing party to recover ‘[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.’ 28 U.S.C. § 1920(2).” It also cited Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989), as follows: “Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party. Necessity is determined as of the time of taking, and the fact that a deposition is not actually used at trial is not controlling.”

With regard to synchronization, the court stated “We discern no abuse of discretion in the award of synchronization costs. We previously construed § 1920(2) to embrace the cost of synchronizing a deposition video and transcript, provided the trial court finds the procedure reasonably necessary…It did here.” The appellate court also ruled that the plaintiff-appellant failed to “demonstrate that the district court abused its discretion in finding the other deposition-related costs necessary” and upheld those costs as well.

With regard to the imaging costs, the appellate court noted that “the statute includes no categorical bar to taxing electronic discovery costs. Rather, it authorizes courts to tax ‘the costs of making copies of any materials where the copies are necessarily obtained for use in the case.’ 28 U.S.C. § 1920(4). Thus, we first ask whether imaging a hard drive, or other physical storage device, falls within the ordinary meaning of ‘making copies.’”

Referencing the Oxford English Dictionary, the appellate court in upholding the imaging costs, rejecting the Third Circuit Court decision Race Tires as “overly restrictive”, stated:

“Imaging a hard drive falls squarely within the definition of ‘copy,’ which tellingly lists ‘image’ as a synonym. And the name ‘imaging’ describes the process itself. Imaging creates ‘an identical copy of the hard drive, including empty sectors.’…The image serves as a functional reproduction of the physical storage disk. From the image file, one can access any application file or electronic document on the hard drive with all that document’s original properties and metadata intact…If not actually made or formed in the image of the hard drive, we certainly regard it as such. Thus, a plain reading of the statute authorizes courts to tax the reasonable cost of imaging, provided the image file was necessarily obtained for use in the case.”

So, what do you think? Are courts ever going to apply a consistent interpretation of 28 U.S.C. § 1920(4)? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: eDiscovery Case Law

In Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW (D. Colo. Feb. 13, 2015), Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Case Background

On January 31, 2013, the defendants’ Motion to Dismiss on qualified immunity and for lack of subject matter jurisdiction was granted by the court. After prevailing on summary judgment, the defendants filed a Proposed Bill of Costs seeking costs totaling $58,037.01. At a telephonic hearing, the District Court Clerk awarded $57,873.61 of the requested taxable costs. On March 5, 2014, the plaintiffs filed an instant Motion seeking a review of the Clerk’s determination concerning the taxed amount of $55,649.98 for the defendants to contract with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information that was requested by the plaintiffs.

The plaintiffs contended that the Court should reduce the taxing of costs entered by the Clerk from $57,873.61 to $2,387.03 because retrieving, restoring and converting data does not constitute “copying” under 28 U.S.C. § 1920(4). The defendants disagreed, arguing that “[p]roduction costs in collecting, scanning, reviewing, and preparing documents are necessary expenditures that are made for the purpose of advancing the discovery phase of the case and as such, are taxable.”

Judge’s Opinion

Judge Arguello stated that “Federal Rule of Civil Procedure 54 provides that ‘[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.’” She also pointed out that “courts have recognized that 28 U.S.C. § 1920(4) includes e-discovery related costs”, citing three cases.

As for this case, Judge Arguello observed that “[b]ecause of the complexities and time-intensive efforts anticipated in responding to Plaintiffs’ requests for documents, the parties entered into three consecutive tolling agreements” and also that “Defendants wrote to Plaintiffs’ counsel three times describing the difficulties and complexities encountered in retrieving and restoring the ESI”. “At no time during this period did Plaintiffs initiate discussion aimed at limiting the scope of their request for information or take other measures to limit the costs of the endeavor”, she noted, indicating that based on the ESI production, “Plaintiffs filed a new Complaint including several allegations not included in the version filed in 2010”.

As a result, Judge Arguello found that the defendants’ costs related to the ESI are expenses enumerated in 28 U.S.C. § 1920(4). She found that “The ESI expenses were not merely for the convenience of the parties nor were they materials produced solely for discovery as Plaintiffs filed a new Complaint that included information gleaned from the ESI. Thus, the ESI expenses were reasonably necessary for use in the case. Indeed, Plaintiffs were aware of the monumental effort to retrieve and convert the data into a retrievable format in response to their Interrogatories and Requests for Production. The costs incurred by Defendants, the prevailing party, in responding to Plaintiffs’ requests are expenses that are shifted to Plaintiffs, the losing party. Indeed, Plaintiffs own litigation choices and aggressive course of discovery necessarily resulted in ‘heightened’ defense costs.”

Therefore, Judge Arguello denied the plaintiffs’ motion and upheld the award by the Clerk of the Court of $57,873.61 in taxable costs.

It’s not exactly a pot o’ gold, but it’s nothing to sneeze at either. 🙂 Happy St. Patrick’s Day!

So, what do you think? Is recovery of eDiscovery costs under 28 U.S.C. § 1920(4) too open to interpretation? 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. eDiscoveryDaily is made available by CloudNine 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.

Alon Israely, Esq., CISSP of BIA: eDiscovery Trends

This is the third of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely. Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA. Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and corporations on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security. Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

I didn’t get to spend as much time on the floor and in the sessions as I would like because, for me, LTNY has become mostly meetings. On the one hand, that doesn’t help me answer your question as completely as I could but, on the other hand, it’s good for ALM because it shows that there’s business being conducted. A big difference between this year and last year (which may be reflective of our activity at BIA, but others have said it as well), is that there has been more substantive discussions and deal-making than in the past. And, I think that’s what you ultimately want from an industry conference.

Also, and I’m not sure if this is because of attrition or consolidation within the industry, but there seems to be more differentiation among the exhibitors at this year’s show. It used to be that I would walk around LegalTech with outside investors who are often people not from the industry and they would comment that “it seems like everybody does the same thing”. Now, I think you’re starting to see real differentiation, not just the perception of differentiation, with exhibitors truly offering solutions in niche and specialized areas.

As for whether ALM should consider moving the show, absolutely! It seems as though the last few years that has been one of the conversation topics among many vendors as they’re setting up before LegalTech as they ask “why is this happening again” with the snow and what-not. We’ve certainly had some logistics problems the past couple of years.

I do think there is something nice about having the show early in the year with people having just returned from the holidays, getting back into business near the beginning of Q1. It is a good time as we’re not yet too distracted with other business, but I think that it would probably be smart for ALM to explore moving LTNY to maybe the beginning of spring. Even a one-month move to the beginning of March could help. I would definitely keep the show in New York and not move the location; although, I would think that they could consider different venues besides the Hilton without affecting attendance. While some exhibitors might say keep it at this time of year to coordinate with their release schedules, I would say that’s a legacy software answer. Being in the SaaS world, we have updates every few weeks, or sooner, so I think with the new Silicon Valley approach to building software, it shouldn’t be as big a deal to match a self- created release schedule. Marketing creates that schedule more than anything else.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I think that they’re going to pass Congress. I’ve been focusing on the changes related to preservation as it seems that most noteworthy cases, especially those involving Judge (Shira) Scheindlin, involve a preservation mistake somewhere. For us at BIA, we feel the Rules changes are quite a validation of what we’re doing with respect to requiring counsel to meet early to discuss discovery issues, and to force the issue of preservation to the forefront. Up until these changes, only savvy and progressive counsel were focused on how legal hold and preservation was being handled and making sure, for example, that there wasn’t some question eight months down the road about some particular batch of emails. The fact that it is now codified and that’s part of the pre-trial “checklist” is very important in creating efficiencies in discovery in general and it’s great for BIA, frankly, because we build preservation software. It validates needing an automated system in your organization which will help you comply.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I hate to sound pessimistic, and obviously I’m generalizing from my experience, but it feels like attorneys are less interested in learning about eDiscovery and more interested in being able to rely on some sort of solution, whether that solution is software or a service provider, to solve their problems. It’s a little bit of a new “stick your head in the sand” attitude. Before, they ignored it; now, they just want to “find the right wrench”. It’s not always just one wrench and it’s not that easy. It is important to be able to say “we use this software and that software and this vendor and here’s our process” and rely on that, but the second step is to understand why you are relying on that software and that vendor. I think some lawyers will just say “great, I’ll buy this software or hire this vendor and I’m done” and check that check box that they now have complied with eDiscovery but it’s important to do both – to purchase the right software or hire the right vendor AND to understand why that was done.

Certainly, vendors may be part of the problem – depending upon how they educate. At BIA, we promote TotalDiscovery as a way of not having to worry about your preservation issues, not having data “fall through the cracks” and that you’ll have defensible processes. We do that but, at the same time, we also try to educate our clients too. We don’t just say “use the software and you’re good to go”, we try to make sure that they understand why the software benefits them. That’s a better way to sell and attorneys feel better about their decision to purchase software when they fully understand why it benefits them.

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

As I already mentioned, BIA has TotalDiscovery, our SaaS-based preservation software and we are about to release what we call “real-time processing”, which effectively allows for you to go from defensible data collections to searching that collected data in minutes. So, you can perform a remote collection and, within a few minutes of performing that collection, already start to perform eDiscovery caliber searches on that data. We call it the “time machine”. In the past, you would send someone out to collect data, they would bring it back and put it into processing software, then they would take the processed data and they’d search it and provide the results to the attorneys and it would be a three or four week process.

Instead, our remote collection tool lets you collect “on the fly” from anywhere in the world without the logistics of IT, third-party experts and specialized equipment and this will add the next step to that, which is, after collecting the data in a forensically sound manner, almost immediately TotalDiscovery will allow you to start searching it. This is not a local tool – we’re not dropping agents onto someone’s machine to index the entire laptop, we’re collecting the data and, using the power of the cloud and new technology to validate and index that data at super high speeds so that users (corporate legal departments and law firms) can quickly perform searches, view the documents and the hit highlights, as well as tag and export documents and data as needed. It changes the way that the corporate user handles ECA (early case assessment). They get defensible collection and true eDiscovery processing in one automated workflow. We announced that new release here at LegalTech, we’ll be releasing it in the next few weeks and we’re very excited about it.

Thanks, Alon, 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!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine 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.

James D. Zinn, Managing Director of Huron Consulting Group: eDiscovery Trends

This is the second of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is James D. Zinn. James is Managing Director of Huron Consulting Group. James is responsible for leading Huron Legal’s technology vision and strategy globally. He directs the practice’s software engineering, information technology, and product management teams. James is responsible for driving innovation by identifying and incubating emerging technologies and technology-driven solutions with relevance to Huron Legal. He has more than twenty years of experience developing and delivering services and solutions to clients.

{Editor’s Note: Because of travel issues, James did not make it to LTNY this year, but we were able to re-schedule the interview for after the show.}

What are your general observations about LTNY this year and about emerging trends in general for 2015? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

While I didn’t make it to the show, from what I’ve heard from my colleagues, all of the themes from last year seem to be continuing to mature, including information governance and the convergence of IG and discovery. Also, the focus on security certainly took a step forward this year and the use of predictive coding and other analytical technologies has become a perennial topic and has continued to move forward. So, what I saw was a continued maturing and growth of last year’s themes, which I think will continue throughout 2015.

As for the possibility of moving LTNY to a different time of year, I think that’s a big change. Certainly, New York is much nicer in the fall than in the winter, so I’d love to see a change from that perspective. Realistically, I think that there is a lot of inertia behind the current scheduling, so it would be a big change and disruption to the industry to try and move it.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I don’t think there will be any roadblocks. I think the proposed changes to the Federal rules are useful and I think we’re already starting to see the impact as our clients have started to act consistent with the proposed changes. So, I don’t really see any challenge with them being adopted and incorporated into current practices; in fact, I think that adoption has already begun.

Some of this could be due to the pending rules changes and some could be due to the maturing of organizations and the industry in general. We have seen the increased use of technology to try to wrestle down the volumes of information. We’re seeing more targeted collection, more targeted use of analytics earlier in the process to reduce data volumes, even before the more traditional review stages begin. We are seeing an increasing number of projects where the data volumes are getting culled much more quickly than they have in the past. The days of collecting large volumes and dumping those large volumes indiscriminately into the discovery process and then sorting it all out are evolving into much more careful efforts. As a result, we see the downstream benefits already starting to appear where there’s less need for brute forcing your way through a corpus of documents.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think that there has been a continued progress in that area. Our client attorneys that we see on a regular basis are absolutely more knowledgeable about eDiscovery, aware of the issues associated with it and how to address those issues more efficiently. From our view, there’s a clear maturing of that knowledge in the industry.

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

At Huron Legal, we’re continuing to try to support these trends by offering technology everywhere where it can improve the process and make the process as cost-efficient as possible. We’ve continued, much as the industry has, to try to advance and mature those solutions. I mentioned predictive coding earlier and that has been a recurring theme for years and I think predictive coding technology has slowly continued to get better and easier and, as a result, become more adopted within the industry. We’re also seeing a lot more interest in security and with the increase in security breaches and those breaches becoming more publicized, there has been a lot more interest from our clients in understanding how we’re protecting their data, as well as what steps they can also take to protect their data. So, we have a lot of exciting things going on in that area as well.

Also, a little outside the eDiscovery realm but closely related, is cost management. We recently acquired a technology company called Sky Analytics, which focuses on helping lawyers, predominantly corporate law departments, to analyze and understand their external spend (of which discovery is a large component). It helps them to evaluate the efficiency of the services that are being provided by their outside counsel. This fits in well with our efforts to support organizations in managing their legal costs by using analytics and technology to provide meaningful, real-time insight. We’ve made some big strides in this area in the past few months and it will continue to be a significant focus for Huron Legal.

Thanks, James, 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!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine 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.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: eDiscovery Case Law

In Bertoli et al. v. City of Sebastopol, et al., No.A132916 (Ct. App. Ca. Jan. 20, 2015), the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Case Summary

The plaintiff, after being hit by a car while walking in a crosswalk, was rendered permanently physically and mentally disabled. Her attorney served PRA requests seeking electronically stored information (ESI) on the defendant in anticipation of her personal injury lawsuit. There was an initial request for collision reports, about which the defendant maintained it provided several records and offered for the plaintiff’s attorney to indicate which additional collision reports he wanted.

When the plaintiff served an additional 62 ESI requests, including requests to search private computers that the plaintiff believed could contain responsive documents, the defendant objected to the 62 separate requests as “overly extensive, overly broad and, in some cases, unlimited in time.” The defendant made suggestions to narrow the requests, and the plaintiff offered to pay for a third-party eDiscovery vendor to assist with the searches, but the disputes continued. Once the personal injury lawsuit was filed, the defendant set a deadline for the plaintiff’s attorney to complete his review. Ultimately, the parties could not reach an agreement on the ESI requests and the plaintiff filed a Petition for Writ of Mandate under the Public Records Act for relief.

In June 2011, the trial court – having “carefully weighed the competing interests at stake” – denied the petition. In its order, it noted that the defendant had shown a “remarkable degree of openness and cooperation” in its response to the plaintiff’s PRA requests and characterized the relief sought in the Petition as an “unprecedented fishing expedition” which would “constitute an alarming invasion of property rights, an extravagant use of limited city resources, and an unwanted green light for immoderate discovery.” Pursuant to the Public Records Act, the trial court deemed the petition “clearly frivolous” and ordered for the plaintiff to pay the defendant’s requested attorneys’ fees, which had risen from the initial request of $42,280 to $82,380. The plaintiff appealed the trial court’s finding of clear frivolousness in August 2011 and appealed the amount of fees awarded in March 2012.

The appellate court’s analysis agreed with the trial court’s finding that the plaintiff’s requests constituted an undue burden, but stated that “the mere fact that the Petition was impermissibly overbroad and therefore properly rejected by the trial court does not necessarily mean that it was entirely without merit. Rather, as stated above, it is an open issue whether and to what extent public records may be obtained from private computers under the PRA. Further, there was evidence that several current employees had responsive documents that were not disclosed and that certain city council members, at least, used their home computers for City-related business. Thus, despite the overbreadth of the Petition, it was not, on that basis, clearly frivolous.” As a result, the appellate court reversed the order for attorneys fees and costs.

So, what do you think? Should the unduly burdensome requests be enough to justify reimbursement of attorneys fees or was the appellate court decision correct? 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. eDiscoveryDaily is made available by CloudNine 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.