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Defendant Requests Terminating Sanctions for Plaintiff, but Court Opts for Lesser Sanctions: eDiscovery Case Law

In Applied Underwriters, Inc. v. American Employer Group, No. 14-00379 (E.D. Tenn., May 2, 2016), Tennessee Magistrate Judge C. Clifford Shirley, Jr., ruling on several motions, granted in part and denied in part the defendant’s motion for sanctions, agreeing that the plaintiff’s numerous discovery deficiencies warranted sanctions, but not the dismissal that the defendant requested, opting instead to require the plaintiff to pay attorney’s fees for filing the motion.

Case Background

In this case which involved numerous discovery disputes, the defendant asserted that the plaintiff failed to comply with the Court’s discovery Orders, failed to follow the procedures set forth in the parties’ discovery plan, failed to follow the directives of the Court’s Protective Order, failed to follow the requirements of the Federal Rules of Civil Procedure, and failed to confer in good faith about discovery issues, arguing that the plaintiff produced a classic “document dump” when it produced its ESI.  At a hearing regarding the case, the defendant identified eleven deficiencies with the plaintiff’s production, including:

  1. failing to search for the agreed upon terms in creating the collective universe;
  2. failing to search the computer systems of several individuals that were agreed upon;
  3. failing to review the documents before producing;
  4. producing the documents out of order, without attachments, and without proper load files;
  5. failing to apply proper Bates stamps to some of the ESI;
  6. producing all four million pages with the “Attorney Eyes Only” designation;
  7. failing to produce the ESI in the format indicated in the parties agreement pursuant to the Rule 26(f) Report;
  8. submitting the document production without extracted OCR text and load files;
  9. producing ESI duplicative of that produced in previous discovery;
  10. producing “a number of folders, sub-folders, and sub-sub level folders with file names that do not make sense”; and
  11. not providing a spreadsheet to explain which documents are relevant to which request contrary to the parties’ agreement.

Other than that, the plaintiff’s document production was perfect… :o)

The defendant requested that the Court dismiss the lawsuit, or in the alternative, stay the case until the plaintiff obeyed the Court’s Orders and fully complied with its discovery obligations, also requesting an award to compensate it for the fees and costs it incurred in responding to and overcoming the Plaintiff’s discovery misconduct and its fees and costs associated with re-taking depositions.

Judge’s Ruling

Regarding the plaintiff’s production after they asked for additional time to produce the ESI requested, Judge Shirley stated that “contrary to the parties’ agreement and the Court’s Order, the Plaintiff did not perform the additional searches per the protocols discussed, i.e., performing searches on specifically named individuals’ computers. Moreover, when the March 8 discovery was produced, it was contrary to the plan set forth in the Rule 26(f) Report, it was unorganized, it failed to identify which document request it was answering, and it was all produced “Attorney’s Eyes Only.” Accordingly, the Court finds that sanctions are appropriate.”

Shirley, you can’t be serious!

However, Judge Shirley stopped short of ordering the harsh sanction of dismissal, stating “[w]hile the Court finds that sanctions are appropriate, the Court does not find that Plaintiff’s deficiencies warrant dismissal…As discussed at the hearing, instead of dismissal, the Court finds that the Plaintiff shall pay for the reasonable attorney’s fees and costs associated with the Defendant’s Motion for Sanctions, including the other Motions and filings that relate to the Plaintiff’s discovery deficiencies.”  Judge Shirley also ordered the plaintiff to pay “for the reasonable expenses, not to include attorney’s fees, for retaking” several depositions, including the plaintiff’s Rule 30(b)(6) witness’s depositions.

So, what do you think?  Were those sanctions sufficient?  How does Judge Shirley respond when somebody tells him “surely, you can’t be serious”?  (Seriously, I want to know).  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.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: eDiscovery Case Law

In Bruner v. American Honda Motor Co., No. 1:15-00499-N (S.D.Ala. May 12, 2016), Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Case Background

In this case stemming from an accident involving a 2007 Honda Civic, the plaintiffs alleged a number of counts, including negligence, wantonness, loss of consortium, and manufacturer’s liability claims.  The parties had a dispute regarding the production of emails in response to the plaintiffs’ requests for production and whether Defendant or its counsel should issue a litigation hold in this action.  Counsel for the defendant claimed that any relevant e-mails were “no longer retained due to the passage of time in accordance with the relevant Document Retention Policy(ies)” and also contended that it had conducted thorough searches of customer complaints and related email in response to the requests for production and found no responsive e-mails, claiming that additional searches or implementation of a litigation hold would be unnecessarily burdensome.

The plaintiffs argued that further searches should be conducted to discover and identify any responsive e-mails, stating that the searches of one particular customer database could not be accurate since it references e-mails which it does not include or attach.  The plaintiffs also argued that the defendant’s retention policy is either “in violation of [Defendant’s] duty to preserve ESI, or [Defendant] is not conducting a thorough search.”  The plaintiffs filed a motion to compel the defendant “to conduct a thorough search of identified custodians with identified search terms and to issue a litigation hold in this case” as well as to direct the defendant to implement a litigation hold so that it is not continuously deleting any relevant e-mails.

Judge’s Ruling

Citing Zubulake v. UBS Warburg, Judge Nelson noted that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents”.  With regard to this case, she stated:

“The deletion of potentially relevant emails since the instigation of this action is unreasonable considering their potential importance to this litigation. Additionally, the deletion of some responsive emails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI.”

As a result, Judge Nelson concurred with the plaintiffs that a litigation hold is necessary to preserve ESI and ordered the defendant “to serve Plaintiffs with full and adequate responses” to disputed requests for production “utilizing Plaintiffs’ requested search terms” and also ordered the defendant “to implement a litigation hold on the email accounts of any designer, engineer, customer service representative, or other employee who may possess any responsive non-privileged email. Said litigation hold will remain in place at least until the close of discovery.”

So, what do you think?  Should parties be sanctioned for failing to implement a litigation hold?  Please share any comments you might have or if you’d like to know more about a particular topic.

Just a reminder that today is our webinar titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery hosted by the Organization of Legal Professionals (OLP)!  Click here for more information or click here to register! Hope you can make it!

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 Limits Scope of Search Terms Requested by Plaintiff: eDiscovery Case Law

In AVM Technologies, LLC v. Intel Corp., No. 15-00033 (D. Delaware, May 3, 2016), Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Case Background

In this patent infringement case where the plaintiff sued the defendant in connection with four of the defendant’s processors that the plaintiff alleged infringed upon its patent, a telephonic hearing was held in January 2016 to address a number of discovery issues.  One issue that they could not resolve was the plaintiff’s request for a database search by the defendant of the following terms: charge sharing, power race, contention and short circuits and their synonyms, which was opposed by the defendant.

Because the defendant indicated that circuits in its earlier products are the same as the circuits accused, the plaintiff argued it should not be limited to documents on which the defendant intended to rely, even though the plaintiff admitted its request would require a search from 1995 to the present and would include products that predate the patent-in-suit and are not accused of infringement.  The defendant indicated that it would take a “massive effort” required to complete the plaintiff’s requested search, indicating that it does not maintain a single or central document repository or index of its many different document repositories, does not have a single “standard” set of processor design documents nor a comprehensive text-searchable database for prior products.  However, the defendant did offer to search one database that “contains only the highest level documents relevant to a product”, indicating that it was transferring potentially searchable contents of this database to a search capable platform to perform the keyword searches requested and was working to complete this process shortly.

Judge’s Ruling

Judge Thynge stated that “Nothing in AVM’s arguments suggest why the production by Intel to date is inadequate, such as how or what in that production indicates that Intel has culled or selected documents that only or primarily support its position on liability.  AVM’s contention that it is only requesting that Intel conduct a text search of the locations most likely to have relevant information is unpersuasive and does not address the significant concerns identified by Intel”, indicating that the plaintiff’s request “ignores the required balancing considerations under proportionality for discovery”.  Judge Thynge also indicated that she did not “find the four identified terms narrow as suggested by AVM and likely will result in numerous irrelevant documents.”

As a result, because the defendant offered to search one database for the four terms and synonyms, Judge Thynge ordered the defendant to “perform what is reasonably necessary to enable keyword searches” of that database for the four terms “and additional, limited synonyms for these terms of up to 12 total, as agreed to by the parties. If the parties cannot agree on the synonyms, they are to advise the court.”

So, what do you think?  Was the court correct to limit the scope of the plaintiff’s searches?  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 Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: eDiscovery Case Law

In Moore v. Lowe’s Home Ctrs., LLC, No. 14-1459 RJB (W.D.Wash. Feb. 19, 2016), Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Case Background

In this discrimination case, the plaintiff filed a Motion to Compel Production of Improperly Withheld Documents and Responses to Discovery Regarding Destruction of Plaintiff’s and Other Witnesses’ Email.  In her Motion to Compel, the plaintiff requested (among other things) for the Court to order the production of documents withheld on the basis of privilege and work product and compel additional searches for, and production of, emails responsive to the plaintiff’s discovery requests.

With regard to the documents withheld on the basis of privilege and work product, the defendant claimed that it properly withheld communications between non-attorneys because privilege extends to corporate employees for confidential communications with corporate attorneys and for confidential communications relating to legal advice from those attorneys.

As for the additional searches requested by the plaintiff (due in part to the emails in the plaintiff’s possession that were not uncovered in the defendant’s search), the plaintiff asserted that the defendant should demonstrate that it performed a diligent search, that the defendant should conduct additional searches using terms requested by the plaintiff and that these new searches be conducted without including Plaintiff’s first or last name, on the email accounts of each witness.

In response, the defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074, that the relevant emails from 2012 were likely deleted and that a search using the 88 newly requested search terms (including annoy*, bull, click*, dad, date*, hand, rack, rod, box) in conjunction with removing Plaintiff’s name from the search would result in hundreds of thousands of irrelevant emails.

Judge’s Ruling

With regard to the documents withheld on the basis of privilege and work product, Judge Bryan ruled that “Defendant states that it anticipated litigation as of April 25, 2013…Therefore, documents created prior to that date are not work product. Similarly, investigative communications made before April 25, 2013, in relation to Plaintiff’s complaints and termination fall outside the realm of legal advice and are thus not privileged. Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.”  As a result, the defendant was ordered to “produce documents and communications dated before April 25, 2013, relating to investigations into Plaintiff’s complaints and termination.”

With regard to the additional searches requested by the plaintiff, Judge Bryan stated:

“Plaintiff’s request for email searches is overly broad and not proportional to the case…While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.”

So, what do you think?  Should the parties have been ordered to meet and confer regarding the search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.

Ralph Losey of Jackson Lewis, LLP: eDiscovery Trends

This is the eighth and final of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

 

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

What are your general observations about LTNY this year and about eDiscovery trends in general?

{Interviewed the second day of LTNY}

I have not been on the vendor floor yet, but I hope to get there.  I have been in several meetings and I was able to attend the keynote on cybersecurity today by Eric O’Neill, who was a terrific speaker.  They started out by showing the movie that was made of the big event in his life where they caught the biggest spy America has ever had.  He talked about that incident and cybersecurity and it was very good.  Of course, cybersecurity is something that I’m very interested in, but not so much as an expert in the field, but just as an observer.  My interest in cybersecurity is only as it relates to eDiscovery.  O’Neill was talking about the big picture of catching spies and industrial espionage and the Chinese stealing American secrets.  It was very good and the auditorium was filled.

Otherwise, the show seems quite alive and vibrant, with orange people and Star Wars characters here and there as a couple of examples of what the providers were doing to get attention here at the show.  I have been live “tweeting” during the show.  Of course, I’ve seen old friends pretty much everywhere I walk and everybody is here as usual.  LTNY remains the premier event.

One trend that I’ll comment on is the new rules.  I didn’t think the rules would make that much difference.  Maybe they would be somewhat helpful.  But, what I’m seeing in practice is that they’ve been very helpful.  They really seem to help lawyers to “get it”.  Proportionality is not a new message for me, but having it in the rules, I have found more helpful than I thought.  So far, so good, knock on wood – that has been a pleasant surprise.  I’m upbeat about that and the whole notion of proportionality, which we’ve really needed.  I’ve been talking about proportionality for at least five years and, finally, it really seems to have caught on now, particularly with having the rules, so I’m upbeat about that.

I’ve observed that there seems to be a drop off in sessions this year discussing predictive coding and technology assisted review (TAR).  Do you agree and, if so, why do you think that is?

I read that too, but it seems like I’ve seen several sessions that are discussing TAR.  I’ve noticed at least four, maybe five sessions that are covering it.  I noticed that FTI was sponsoring sessions related to TAR and Kroll was as well.  So, I’m not sure that I agree with that 100%.  I think that the industry’s near obsession with it in some of the prior shows is maybe not a fair benchmark in terms of how much attention it is getting.  Since it’s my area of special expertise, I would probably always want to see it get more attention, but I realize that there are a number of other concerns.  One possible reason for less coverage, if that is the case, is that TAR is less controversial than it once was.  Judges have all accepted it – nobody has said “no, it’s too risky”.  So, I think a lot of the initial “newsworthiness” of it is gone.

As I stated in my talk today, the reality is that the use of TAR requires training via the old fashioned legal apprenticeship tradition.  I teach people how to do it by their shadowing me, just like when I first learned how to try a case when I carried the briefcase of the trial lawyer.  And, after a while, somebody carried my briefcase.  Predictive coding is the same way.  People are carrying my briefcase now and learning how to do it, and pretty soon, they’ll do it on their own.  It only takes a couple of matters watching how I do it for somebody to pick it up.  After that, they might contact me if they run into something unusual and troublesome.  Otherwise, I think it’s just getting a lot simpler – the software is getting better and it’s easier to do.  You don’t need to be a rocket scientist.

My big thing is to expose the misuse of the secret control set that was making it way too complicated.  No one has stood up in defense of the secret control set, so I think I’m succeeding in getting rid of one of the last obstacles to adopting predictive coding – this nonsense about reviewing and coding 10,000 random documents before you even start looking for the evidence.  That was crazy.  I’ve shown, and others have too, that it’s just not necessary.  It overcomplicates matters and, if anything, it allows for a greater potential for error, not less as was its intent.  We’ve cleaned up predictive coding, gotten rid of some mistaken approaches, the software is getting better and people are getting more knowledgeable, so there’s just no longer the need to have every other session be about predictive coding.

One trend that I’ve observed is an increased focus on automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

It is the trend and it will be the trend for the next 20 or 30 years.  We’re just seeing the very beginning of it.  The first way it has impacted the legal profession is through document review and the things that I’m doing.  I love artificial intelligence because I need the help of artificial intelligence to boost my own limited intelligence.  I can only remember so many things at once, I make mistakes, I’m only human.  So, I believe that AI is going to augment the lawyers that are able to use it and they are going to be able to do much, much more than before.  I can do the work of one hundred linear reviewers with no problem, by using a software AI enhancement.

It’s not going to put lawyers out of work, but it is going to reduce the volume of menial tasks in the law.  For mental tasks that a lawyer can do that require just simple logic, a computer can do those tasks better than a human can do them.  Simple rules-based applications, reviewing documents – there are many things that lawyers do that a computer can do better.  But, there are also many, many things that only a human can do.  We’re nowhere near actually replacing lawyers and I don’t think we ever will.

Just like all of the great technology doesn’t replace doctors in the medical profession – it just makes them better, makes them able to do miraculous things.  The same thing will happen in the law.  There will be lawyers, but they will be able to do what, by today’s standards, would look miraculous.  How did that lawyer know how that judge was going to rule so exactly?  That’s one of the areas we’re getting into with AI – predicting not just the coding of documents, but predicting how judges will rule.  Right now, that’s an art form, but that’s the next big step in big data.  They are already starting to do that in the patent world where they already have a pretty good idea how certain judges will rule on certain things.  So, that’s the next application of AI that is coming down the road.

I think the continued advancement of AI and automation will be good for lawyers who adapt.  For the lawyers that get technology and spend the time to learn it, the future looks good.  For those who don’t and want to keep holding on to the “buggy whip”, they will find that the cars pass them by.

It seems like acquisition and investment in the eDiscovery market is accelerating, with several acquisitions and VC investments in providers in just the past few months.  Do you feel that we are beginning to see true consolidation in the market?

Yes, I think it’s more than just beginning – I think it’s well underway.  And, I think that’s a good thing.  Why?  Because there are so many operations that are not solid, that, in a more sophisticated market, wouldn’t survive.  But, because many legal markets around the country are not sophisticated about eDiscovery, they are able to sell services to people who just don’t know any better and I don’t think these people are helping the legal profession.  So, consolidation is good.  I’m not saying that “new blood” isn’t good too, if those providers are really good at what they do.  But, I think that’s a natural result of the marketplace itself becoming more sophisticated.

However, I do think the entire industry is vulnerable someday to extreme consolidation if Google and IBM decide to take an interest in it.  I’ve long predicted that, at the end of the day, there will be three or four players.  Aside from Google and IBM, who that will be, I don’t know.  Maybe Google and IBM will never go into it.  But, I believe Google will go into it and I think IBM will do so too.  While I don’t have any inside knowledge to that effect, I think they’re probably researching it.  I think they would be silly not to research it, but I don’t think they have a big staff devoted to it.

I read about this a lot because I’m curious about IBM in particular and I think that IBM is focusing all of its resources right now on medicine and doctors.  They do have a booth here and they do have some eDiscovery focus, particularly on preservation and the left side of the EDRM model.  What they don’t have yet is “Watson, the review lawyer”.  In fact, I have said this in my Twitter account that if there ever is a “Watson, the review lawyer”, I challenge him.  They can beat Jeopardy, but when it comes to things as sophisticated as legal analysis, I don’t think they’re there yet. Several of our existing e-Discovery vendor software is better. Anybody could beat a regular human, but when it comes to beating an “automated human”, I don’t think IBM is there yet. I bet IBM will have to buy out another e-discovery vendor to enhance their Watson algorithms.  I hope I’m still practicing when they are ready, because I’d like to take them on.  Maybe I’ll get beaten, but it would be fun to try and I think I can win, unless they happen to buy the vendor I use. Regardless, I think it’s clear that technology is going to keep getting better and better, but so will the tech savvy lawyers who use the technology to augment their human abilities of search and legal analysis. The key is the combination of Man and Machine, which is what I call the “hybrid” approach.

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

I am looking into the feasibility of having an eDiscovery “hackathon”.  If you’ve heard of a regular “hackathon”, you get the idea.  This would be a 24 hour event where the technology providers who think they are the best in document review come together and compete.  It would be a fair and open content, run by scientists, where everybody has the same chance.  Scientists will compute the scores and determine who obtained the best recall and best precision to determine a winner.  It would be a way for us to generate interest the same way that cybersecurity does, using a live event to allow people to watch how high-tech lawyers do it.  I think you would be amazed how much information can be found in 24 hours, if you’re using the technology right.  It will be a proving ground for those vendors who think they have good software.  Basically, I’m saying “show me”, “put up or shut up”.

The reality is, my presentation today was on TREC and I showed up with Kroll Ontrack – the only other vendor to show up was Catalyst, nobody else showed up.  So, I’m going to make it easier and say “it’s 24 hours, compete!”  Anybody can say that they’re great, but show me – I want to see it to believe it.  Everybody loves competition – it’s fun.  My concern is all the other vendors will be too risk adverse to compete against us. They are just empty suits.

For me, it’s exciting to do document review.  I enjoy document review and if you don’t enjoy document review, you’re doing something wrong.  You’re not really harnessing the power of artificial intelligence.  Because working with a robot at your side that’s helping you find evidence can be a lot of fun.  It’s somewhat like an Easter egg hunt – it’s fun to look for things when you have the help of AI to do the heavy lifting for you.   Review a million documents?  No problem if you have a good AI robot at your side.

So, I’m thinking of ways to show the world what eDiscovery can do and, within our community, to see who are among us is really the best.  I have won before, so I think I can do it again, but you never know. There are many other great search attorneys out there. If we do pull it off with a hackathon, or something like that, there may not be one clear winner, but there may be a few that do better than others. It’s never been done before and I like to do things that have never been done before. But it will not happen unless other vendors step up to the plate and have the confidence to dare to compete. Time will tell…

Thanks, Ralph, 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.

Predictive Coding is Officially Approved in First English Case: eDiscovery Case Law

Last month, in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch), citing the landmark DaSilva Moore case (among other authorities), Master Matthews approved the use of predictive coding, due to the “enormous” expense of manually searching through the three million electronic documents associated with the case.  This is the believed to be the first time an English court has approved the use of predictive coding.

In this case, the parties, through several rounds of correspondence, “agreed on the (automated) method to be employed”, which “involves ‘predictive coding’”, and “also the scope of the keywords to be employed”.  Citing DaSilva Moore, Master Matthews referenced several comments in Judge Peck’s decision nearly four years earlier, including:

“The decision to allow computer-assisted review in this case was relatively easy – the parties agreed to its use (although disagreed about how best to implement such review). The Court recognises that computer-assisted review is not a magic, Staples-easy-Button, solution appropriate for all cases. The technology exists and should be used where appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the court needs to examine…The goal is for the review method to result in higher recall and higher precision than another review method, at cost proportionate to the ‘value’ of the case… Computer-assisted review appears to be better than the available alternatives, and thus should be used in appropriate cases.”

Master Matthews also referenced Irish Bank Resolution Corporation Ltd v Quinn, where the Irish High Court also endorsed the use of predictive coding.  In that case, the process was proposed by the plaintiffs and approved by the court over the objections by the defendants.

In approving the use of predictive coding in this case, Master Matthews provided these factors in favor of the decision {emphasis added}:

“(1)          Experience in other jurisdictions, whilst so far limited, has been that predictive coding software can be useful in appropriate cases.

(2)           There is no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than, say, manual review alone or keyword searches and manual review combined, and indeed there is some evidence (referred to in the US and Irish cases to which I referred above) to the contrary,

(3)           Moreover, there will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds, of lower-grade fee-earners, each seeking independently to apply the relevant criteria in relation to individual documents.

(4)           There is nothing in the CPR or Practice Directions to prohibit the use of such software.

(5)           The number of electronic documents which must be considered for relevance and possible disclosure in the present case is huge, over 3 million.

(6)           The cost of manually searching these documents would be enormous, amounting to several million pounds at least, hr my judgment, therefore, a full manual review of each document would be “unreasonable” within paragraph 25 of Practice Direction B to Part 31, at least where a suitable automated alternative exists at lower cost.

(7)           The costs of using predictive coding software would depend on various factors, including importantly whether the number of documents is reduced by keyword searches, but the estimates given in this case vary between £181,988 plus monthly hosting costs of £15,717, to £469,049 plus monthly hosting costs of £20,820. This is obviously far less expensive than the full manual alternative, though of course there may be additional costs if manual reviews still need to be carried out when the software has done its best.

(8)           The ‘value’ of the claims made in this litigation is in the tens of millions of pounds. In my judgment the estimated costs of using the software are proportionate.

(9)           The trial in the present case is not until June 2017, so there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.

(10)         The parties have agreed on the use of the software, and also how to use it, subject only to the approval of the Court.”

In approving the use of predictive coding in this case, Master Matthews also stated that “There were no factors of any weight pointing in the opposite direction.”  And, saving us the trouble of checking to see if there were any previous English cases that approved predictive coding, he noted that “a search of the BAILII online database for ‘predictive coding software’ returned no hits at all, and for ‘predictive coding’ and ‘computer-assisted review’ only the Irish case referred to above.”

In his blog, eDisclosure Information Project, Chris Dale (whose thought leader interview on this blog was published last Friday), posted his reaction to the decision and referenced several other blogs and publications with their coverage of the decision as well.

So, what do you think?  Will this case become the “DaSilva Moore” for English courts?  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.

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: eDiscovery Case Law

In Gardner et. al. v. Continental Casualty Company, No. 13-1918 (D. Conn., Jan. 13, 2016), Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Case Background

In this class action for violations of Connecticut’s Unfair Trade Practices Act, the parties agreed (after some negotiation) to a list of search terms from the e-mail of twenty-three custodians, which resulted in a return of approximately 38,000 documents.  However, after the defendant reviewed these documents for relevancy and privilege, it produced only 2,214 pages, of which 274 pages consisted of copies of the complaints, with exhibits, filed in the lawsuit.

The plaintiffs filed a Motion to Compel, arguing that the defendant “cherry-picked” the produced documents and called the production “incomplete and inadequate”, citing to four documents where they contended that the defendant redacted or omitted “highly relevant” materials.  The defendant countered that it had provided the plaintiffs with extensive discovery over twenty-two months, including 16,800 pages of documents and indicated that it “spent significant resources reviewing the 38,000 documents identified as the result of the search term process,” and provided their own justification for the redactions in the four documents mentioned by the plaintiffs.

The plaintiffs responded that they did not accept the defendant’s “just trust us” approach to relevancy, that “the entire exercise of agreeing on search terms was to avoid a prolonged and detailed debate over what ESI documents are `responsive’ to the discovery requests”, that ESI production based on search term hits only “is a common discovery practice ordered by courts,” and that documents provided by LTCG (the defendant’s third-party claims administrator) were far more comprehensive and informative than those provided by the defendant, confirming that the defendant’s “ESI production is woefully deficient.”

Judge’s Ruling

In considering the plaintiff’s motion, Judge Margolis stated that the “position taken by plaintiffs is simply untenable – defendant is not obligated to turn over all 38,000 documents, after a review eliminates some on the basis of privilege…As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different. The Court shares, however, plaintiffs’ legitimate concern that LTCG produced different, and obviously relevant, documents that were not provided by defendant itself.”

To attempt to have the parties resolve the dispute themselves, Judge Margolis ordered that “counsel shall confer further regarding variations of two approaches discussed in the Strauch Ruling — ‘sampling and iterative refinement’ or ‘quick peek protocol’ – of the 38,000 documents ‘hit’ by the agreed upon search terms, and shall notify the Magistrate Judge, in writing, about their progress, or lack thereof, on or before February 12, 2016.”  As for the four redacted documents in dispute, Judge Margolis ordered the defendant to forward unredacted versions “for her in camera review, to determine if defendant’s redactions were appropriate or overbroad with respect to those four documents”.

So, what do you think?  Was that a reasonable resolution to the dispute or should the court have ruled one way or the other?  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.

2015 eDiscovery Case Law Year in Review, Part 3

As we noted yesterday and Tuesday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Today, let’s take a look back at cases related to cooperation issues, social media and mobile phone discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: In Herron v. Fannie Mae, et al., DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “[c]ontrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

Court’s “New and Simpler Approach to Discovery” Identifies Search Terms for Plaintiff to Use: In Armstrong Pump, Inc. v. Hartman, New York Magistrate Judge Hugh B. Scott granted in part the defendant’s motion to compel discovery responses and fashioned a “new and simpler approach” to discovery, identifying thirteen search terms/phrases for the plaintiff to use when searching its document collection.

Court Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: In You v. Japan, California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Court Orders Defendant to Supplement Data Used for Statistical Sampling: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant. As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).

SOCIAL MEDIA

Requests for social media data in litigation continue, so here are three cases related to requests for social media data:

Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: In Burdette v. Panola County, Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: In the case In Newill v. Campbell Transp. Co., Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

TECHNOLOGY ASSISTED REVIEW

Believe it or not, we only covered one technology assisted review case last year, at least officially.  Though, we did at least cover it twice.  Here is the case:

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: In Rio Tinto Plc v. Vale S.A., New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”  Later on, Judge Peck assigned a well-respected industry thought leader as special master to the case.

SPOLIATION / SANCTIONS

I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 72 cases we covered this past year, 39 percent of them (28 total cases) related to sanctions and spoliation issues.  Sometimes requests for sanctions are granted, sometimes they’re not.  Here are the first ten cases:

Appeals Court Upholds Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

Court Grants Defendants’ Motion to Exclude Plaintiff’s Use of Spoliation Evidence: In West v. Talton, Georgia District Judge C. Ashley Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation, reserving its ruling on the remaining issues in the Motion in Limine.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: In NuVasive, Inc. v. Madsen Med., Inc., California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: In Flanders v. Dzugan et. al., despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Court Denies Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: In Watkins v. Infosys, Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Court Rules that State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., New York Magistrate Judge Randolph F. Treece denied the plaintiff’s request for sanctions, stating that “that neither the individual Defendants nor their Attorney had a duty to preserve” the emails of the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”).

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation. Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: In Charvat et. al. v. Valente et. al., Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Tomorrow, we will cover the remaining cases relating to sanctions and spoliation.  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  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.

Date Searching for Emails and Loose Files Can Be Tricky: eDiscovery Best Practices

I recently had a client that was searching for emails and loose files based on a relevant date range.  However, because of the way the data was collected and the way the search was performed, identifying the correct set of responsive emails and loose files within the relevant date range proved to be challenging.  Let’s take a look at the challenges this client faced.

Background

The files were collected by client personnel with the emails placed into PST files and loose files from local and network stores all put into folders based on custodian.  The data was then uploaded and processed using CloudNine’s Discovery Client software for automated data processing and placed into the CloudNine Review platform.

Issue #1

Before they retained us for this project, the client placed copies of loose files into the custodian folders via “drag and drop”.  If you have been reading our blog for a long time, you may recall that when you “drag and drop” files to copy them to a new location, the created date will reflect the date the file was copied, not the date the original file was created (click here for our earlier post on whether a file can be modified before it is created).

As a result, using created date to accurately reflect whether a file was created within the relevant date range was not possible, so, since it was too late to redo the collection, we had to turn to modified date to identify potentially responsive loose files based on date/time stamp within the relevant date range.

Issue #2

With the data processed and loaded, the client proceeded to perform a search to identify documents to be reviewed for responsiveness to the case that included the agreed-upon responsive terms for which either the sent date or the modified date was from 1/1/2014 to present.  Make sense?  In theory, yes.  However, the result set included numerous emails that were sent before 1/1/2014.  Why?

One of the first steps that Discovery Client (and most other eDiscovery processing applications) performs is “flattening” of the data, which includes extracting individual files out of archive files.  Archive files include ZIP and RAR compressed files, but another file type that is considered to be an archive file is Outlook PST.  Processing applications extract individual messages from the PST, usually as individual MSG (individual Outlook message) or HTML files.  So, if a PST contains 10,000 messages (not including attachments), the processing software creates 10,000 new individual MSG or HTML files.  And, each of those newly created files has a created date and modified date equal to the date that individual file was created.

See the problem?  All of the emails were included in the result set, regardless of when they were sent, because the modified date was within the relevant date range.  Our client assumed the modified date would be blank for the emails.

Solution

To resolve this issue, we helped the client restructure the search by grouping the terms within CloudNine so that the sent date range parameter was applied to emails only and the modified date range parameter was applied to loose files only.  This gave the client the proper result with only emails sent or loose files modified within the relevant date range.  The lesson learned here is to use the appropriate metadata fields for searching specific types of files as others can yield erroneous results.

So, what do you think?  Have you ever experienced search issues when searching across emails and loose files at once?  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 Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: eDiscovery Case Law

In You v. Japan, No. C 15-03257 WHA (N.D. Cal. Sept. 16, 2015), California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Case Background

In this putative personal injury class action involving claims against numerous defendants for allegedly contributing to sexual violence against them when they were kept as “comfort women” for members of the Japanese military during World War II, one defendant, a newspaper business, sought permission to preserve documents by alternative means to the Court’s required procedures.

This defendant had already retained an electronic, searchable database of all of its articles back to 1992 and was also retaining the versions of articles that are placed in a proprietary application used for laying out each edition of the newspaper for 90 days. However, the defendant contended that retention for longer than that could slow down the system or cause it to crash, indicating that installing a new storage system would cost $18 million and could take up to eight months.  As a result, the defendant filed an administrative motion for miscellaneous relief, seeking permission to employ an alternative method of preserving the documents as used in the proprietary application, namely by preserving articles only if they contain one of four relevant search terms.

The plaintiffs opposed this request, arguing that the defendant’s proposed solution could lead to the destruction of evidence of its state of mind in selecting and editing its articles, since the version of articles in the proprietary application are the only versions that reflect a particular intermediary stage of bringing those articles to publication.  They also contended that the proposed search terms are insufficient because the defendant had also used the term “voluntary corps (teishintai)” in articles about comfort women.

Judge’s Ruling

Judge Alsup, observing that the plaintiffs “do not, however, argue that articles with that term would not have otherwise been preserved under the proposed search terms, nor have they identified any other search terms that should be included”, found “that Sankei’s proposal, if amended to include the term “voluntary corps (teishintai),” is sufficiently broad to preserve the versions of articles in the proprietary application that may be related to the issues in this case.”  As a result, he granted the defendant’s motion.

So, what do you think?  Is limiting preservation to documents responsive to a small set of search terms a good idea?  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.