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Court Rules that Unilateral Predictive Coding is Not Progressive – eDiscovery Case Law

In Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL (D. Nev. May 19, 2014), Nevada Magistrate Judge Peggy A. Leen determined that the plaintiff’s unannounced shift from the agreed upon discovery methodology, to a predictive coding methodology for privilege review was not cooperative.  Therefore, the plaintiff was ordered to produce documents that met agreed-upon search terms without conducting a privilege review first.

This declaratory relief action had been plagued by delays in discovery production, which led to the defendants filing a Motion to Compel the plaintiffs to produce discovery in a timely fashion. Following a hearing, both sides were ordered to meet and confer, and hold meaningful discussions about resolving outstanding ESI issues pursuant to discovery. The plaintiff contended that the defendant’s discovery requests, as standing, would require them to produce approximately 1.8 million documents, which would be unduly burdensome. Both parties agreed to search terms that would reduce the number of potentially responsive documents to around 565,000, which the plaintiff would manually review for privileged documents before producing discovery to the defendant.

Shortly thereafter, the plaintiff determined that manual review would be too expensive and time-consuming, and therefore after consulting with a “nationally-recognized authority on eDiscovery,” elected to apply predictive coding to the identified 565,000 documents. Plaintiff selected a software program that they began using to identify relevant documents with the intention of applying a further predictive coding layer in order to determine which documents were “more likely privileged” and which were “less likely privileged.”

However, the plaintiff did not consult with either the court or the requesting party regarding their intentions to change review methodology. As a result, the defendant objected to the use of predictive coding in this case for several reasons, including the plaintiff’s lack of transparency surrounding its predictive coding methodology and its failure to cooperate, as well as the plaintiff’s failure to adhere to the best practices for the chosen software program which were recommended to them by the authority they chose. Finally, the defendants cited a likelihood of satellite disputes revolving around discovery, should the plaintiff proceed with the current predictive coding, which would further delay production discovery that had already been “stalled for many months.”

The defendant requested that either the plaintiff be required to proceed with predictive coding according to the defendant’s suggested protocol, which would include applying the predictive methodology to all of the originally collected 1.8 million documents, or that the plaintiff produce the non-privileged keyword hits without any review, but allowing them to be subject to a clawback order—which was a second option included in the originally stipulated ESI protocol that both parties had agreed to. Although this option would shift the burden of discovery to the defendant, it was noted that the defendant was “committed to devot[ing] the resources required to review the documents as expeditiously as possible” in order to allow discovery to move forward.

Judge Leen acknowledged potential support for the general methodology of predictive coding in eDiscovery, and stated that a “transparent mutually agreed upon” protocol for such a method would likely have been approved. However, Judge Leen took issue that the plaintiff had refused to “engage in the type of cooperation and transparency that its own eDiscovery consultant has so comprehensibly and persuasively explained is needed for a predictive coding protocol to be accepted by the court or opposing counsel” and instead had “elected and then abandoned the second option—to manually review and produce responsive ESI documents. It abandoned the option it selected unilaterally, without the [defendant’s] acquiescence or the court’s approval and modification of the parties’ stipulated ESI protocol.”

Therefore, Judge Leen elected to enforce the second option described in the agreed-upon ESI protocol, and required the plaintiff to produce all 565,000 documents that matched the stipulated search terms without review, with a clawback option in place for privileged documents as well as permission to apply privilege filters to the documents at issue, and withhold those documents that returned as “most likely privileged.”

So, what do you think? Should parties need to obtain approval regarding the review methodology that they plan to use?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant – eDiscovery Case Law
 

In the criminal case of United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV) (N.D. Cal. Apr. 8, 2014), California Magistrate Judge Nandor J. Vadas ordered the Government to continue to provide access to a Relativity Database used by the parties to review documents produced by the Government, instead of discontinuing access for the defendants several weeks before trial was to begin due to budgetary issues.

The Government had voluntarily created the database to manage the vast quantities of documents being produced for discovery in this action, “because it was in its interest to do so”. An agreement had been negotiated between the parties that would allow the defendants to access the database and review discovery documents, and to employ third-party “project managers” for technical and substantive support.  Although the parties stipulated that the database has been “completed” in January of 2013, after more than 9 million documents had been uploaded, the defendants did not gain access until February of 2014.

At some point after beginning to work with the database, the defendants came to realize that not all of the documents produced in the action had been uploaded. Specifically, absent from the database were the contents of three hard drives, and 159 boxes of hard copy material amounting to nearly 1 million pages of documents. Defendants filed a motion to compel the Government to add the missing documents to the database, but, during a hearing on the motion to compel, the Government voluntarily offered to upload 2 of the 3 hard drives, and scan the hard copy materials into the database, asking that they not be ordered to do so.

Following this commitment, the Government indicated for the first time during the proceedings that “the ‘extra cost’ associated with this ‘voluntary’ commitment would draw down on the $1.8 million budget that had been allocated to Database, and ‘for this reason, we anticipate funding for the Database will end” four months from that point. Further, the Government stated that they had looked into “new – and more expensive – alternatives,” namely that they would expend resources to have the materials uploaded to the database within 2 months, and that the defendants would have 2 months to access and review the “old” documents plus the new material, at which point the database would be “transferred to a Concordance database that Defendants could maintain at their own cost.”

The defendants objected to this proposal, and Judge Vadas ordered the Government to provide more information about the effects of transferring the documents to a Concordance database. The Government declared that the cost of the transfer alone would be $118,000, and that it would take 6 to 8 weeks to complete. Further, the Government explained that due to the transfer, some user-created metadata would no longer be viewable or searchable, specifically including “(1) Database user actions (‘audit history’); (2) user searches including save search syntax; (3) image annotations; and (4) Database ‘artifacts’ such as batches, views, or layouts.” The defendants responded that they would “lose our saved searches compiled in files within the database, the very work that we have spent months and many hours putting together. These files essentially represent the virtual entirety of the defense work on the data base.”

Aside from these concerns, when asked when it first explained the possibility that the database could “wind down” before trial, the Government “could not point to a single instance where it had actually informed Defendants that this was a possibility.” Instead, the Government claimed that the “projected” two-year project duration should have been understood by the defendants to have been calculated based on the start of the project in June 2012, rather than the completion of the database as the defendants assumed.

Judge Vadas noted that if the Government had indicated that the database might be shut down prior to trial, and taken this position “when it broached the possibility of using the Database to manage discovery in this case, Defendants would have objected strenuously.” Ultimately, Judge Vadas found that since the Government had “chose to use an eDiscovery platform for this action, selected and managed the eDiscovery provider, and negotiated and agreed to Terms and Conditions for Access to the Database with the Defendants,” and that the Government had never disclosed that the database might wind down, “that winding down the Database before Defendants are ready for trial in December 2014 would prejudice Defendants' ability to prepare for trial and would offend the court's notion of fairness.” Therefore, the Government was ordered to continue to pay for the database through December 2014, and to continue providing the services agreed to in the Terms and Conditions.

So, what do you think? Should the Government have been required to continue to pay for the database, or should exporting it to a Concordance database for the defendants to use have been sufficient? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Everything You Wanted to Know about Forms of Production, Don’t Be Afraid to Ask – eDiscovery Best Practices

Last week, we discussed the upcoming Georgetown E-Discovery Training Academy, which will be held starting this Sunday and mentioned in Craig Ball’s excellent blog, Ball in Your Court.  His latest post offers a very comprehensive guide to forms of production that covers all aspects of forms of production from the different types of forms to how to request electronically stored information (ESI) from opposing counsel.

The Lawyer’s Guide to Forms of Production, described by Craig as a “public comment” and “beta” version, “explains the significance of forms of production and lays out options to guide the reader in making sensible selections. It seeks to help lawyers eschew the wasteful and outmoded practice of downgrading digital information to paper-like forms and, instead, embrace forms that function—that is, forms of production that preserve the integrity, efficiency and functionality of digital evidence.”

It’s a 46 page Guide, with another 20 pages of attachments, and covers numerous topics, including:

  • Growing Tension between parties striving to receive productions in useful formats and producing parties seeking to “downgrade” the production format to paper-like images;
  • Options for Forms of Production including Paper, Images, Native, Near-Native (such as enterprise e-mail, databases and social networking content which can’t be produced as-is) and Hosted Production (more frequently, parties turn over access to ESI in a hosted application, typically cloud-based);
  • Federal Rules handling of forms of production, including Rule 34(b)(1)(C) of the Federal Rules of Civil Procedure which allows a requesting party to “specify the form or forms in which electronically stored information is to be produced”;
  • Learning the Language of Forms where Craig breaks down a fictional example of a typical production proposal from opposing counsel and the pitfalls of the proposed formats;
  • Load Files, what they are, different format examples, and how they are used;
  • The Case against Native Format and how each component of the case is debunked;
  • The Case against Imaged Production and at least half a dozen “needless” expenses associated with it.

Craig also covers best practices for crafting production requests that are modern and clear and “cut the crap” of “including, but not limited to” and “any and all” that “don’t add clarity” and are “lightning rods for objection”.  He addresses Bates numbers, redaction and “exemplar” production protocols (in Appendices 2 and 3).  And, many other topics as well!  It’s a very comprehensive guide that covers introductory and advanced topics alike to help lawyers develop a much better understanding of how ESI is stored, organized and should be requested.

You can download a copy of the guide in PDF format here.  It will be interesting to see what feedback Craig gets on his “beta” version.

So, what do you think? Have you dealt with forms of production disputes with opposing counsel?  If so, how did you resolve them?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

If Your Documents Are Not Logical, Discovery Won’t Be Either – eDiscovery Best Practices

Scanning may no longer be cool, but it’s still necessary.  Electronic discovery still typically includes a paper component.  When it comes to paper, how documents are identified is critical to how useful they will be.  Here’s an example.

Your client collects hard copy documents from various custodians related to the case and organizes them into folders.  In one of the folders is a one page fax cover sheet attached to a two page letter, as well as an unrelated report and four different contracts, each 15-20 pages.  The entire folder is scanned as a single document, as either a TIFF or PDF file.

Only the letter is retrieved in a search as responsive to the case.  But, because it is contained within a document containing 70 to 80 other pages, you wind up reviewing 70 to 80 unrelated pages that would not otherwise have to review.  It complicates production, as well – how do you produce partial “documents”?  Also, if the non-responsive report and contracts have duplicates in the collection, you can’t effectively de-dupe those to eliminate those from the review population because they’re combined together.

It happens more often than you think.  It also can happen – sometimes quite often – with the scanned documents that the other side produces to you.  So, how do you get the documents into a more logical and usable organization?

Logical Document Determination (or LDD) is a process that some eDiscovery providers (including – shameless plug warning! – CloudNine Discovery).  It’s a process where each image page in a scanned document set is reviewed and the “logical document breaks” (i.e., each page that starts a new document) is identified.  Then, the documents are re-assembled, based on those logical document breaks.

Once the documents are logically organized, other processes – like Optical Character Recognition (OCR) and clustering (including near duplicate identification) can then be performed at the appropriate level of documents and the smaller, more precise, unitized documents can be indexed for searching.  Instead of reviewing a 70-80 page “document” comprised of several logical documents, your search will retrieve the two page letter that is actually responsive, making your review and production processes more efficient.

LDD is typically priced on a per page basis of pages reviewed for logical document breaks – prices can vary depending on the volume of pages to be reviewed and where the work is being performed (there are providers in the US and overseas).  While it’s a manual process, it’s well worth it if your collection of imaged documents is poorly defined.

So, what do you think? Have you ever received a collection of poorly organized image files? If so, did you use Logical Document Determination to organize them properly?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant Failure to Produce in Agreed Upon Format Leads to Dispute with Plaintiffs – eDiscovery Case Law
 

In EEOC v. SVT, LLC, 2:13-CV-245-RLM-PRC, 2014 U.S. Dist. (N.D. Ind. Apr. 10, 2014), discovery disputes arose when the plaintiffs and defendants agreed upon the file format the requested Electronically Stored Information (ESI) for discovery was to be produced in, but the defendants’ production was not in the file formats specified.

In this workplace discrimination case, the plaintiffs allege that the defendants had engaged in discriminatory hiring practices based on gender, specifically that the defendants refused to hire qualified applicants who were female, and that disproportionately more males than females were hired. The plaintiffs submitted a Request for Production that asked for documents from the defendants including “applications, screening assessments, interview guides, spreadsheets containing data about applicants and employees, and pay rate information.” Neither party disputed that this ESI constituted relevant discovery for the case.

The plaintiffs requested under the Request for Production that the ESI be furnished in specified formats. These formats included documents to be produced in “near native” TIFF format with load files, and spreadsheets and databases produced in native format. At this time, the defendants indicated compliance and agreed that the ESI would be produced in these formats.

The defendants began producing discovery responses by furnishing the plaintiffs with spreadsheets in non-native TIFF format, and with employment applications in single-page, non-unitized PDF that did not include load files. Along with these responses, the defendants claimed that that had produced all relevant data “pursuant to industry standards.” The defendants did not communicate to the plaintiffs, either during production or after serving the discovery responses, that they had any issues with the formats of production specified in the Request for Production. They simply did not follow the agreed format, with no explanation.

Upon review of the ESI, the plaintiffs filed a Motion to Compel Agreed-Upon Formats of [defendants’] Discovery Responses. The plaintiffs submitted a Declaration detailing the deficiencies of the file formats the defendants had submitted, including that the printed images (TIFF) of spreadsheets and database files were not reasonably usable “because they cannot be searched or manipulated for analysis,” and further that the PDFs produced by the defendants were in “a less usable format than the original data” because they had been “bulk-scanned,” resulting in single-page files that were not logically unitized, and had been stripped of metadata such as necessary document/page relationships.

The plaintiffs contended that the defendants could have produced the ESI in the requested formats, and that it would not have been unduly burdensome, using the Kronos and Financial Management Systems, Inc. (FMS) systems that the defendants regularly store and work with data on during the course of business. It was noted by the plaintiffs that both systems “are capable of providing users with data in many forms and come with built-in functionality to query, export, and report data from databases.”

Additionally, the plaintiffs noted that two of the defendants’ human resources representatives had testified during depositions with regard to their experiences working with Kronos, and had stated that they had the ability to generate reports in either PDF or Excel formats, and that FMS can export data to Excel. Both representatives stated that Kronos could be used to sort data, enter specific queries and generate customized reports on the information the plaintiffs sought, in these requested native formats.

However, the defendants objected, stating that their use of a third party hiring program in which Kronos stores the data from applicants online meant that they were limited to producing PDF documents without log files. The defendants stated that they were unable to access the “raw data” through the third party system, which is a cloud-based application. Further, it was noted that producing ESI in the formats requested by the plaintiffs would be unduly burdensome in a financial sense, as the plaintiffs had already spent substantial amounts to produce the discovery documents served thus far.

Magistrate Judge Paul R. Cherry noted that the defendants had not objected or sought a protective order based on their purported inability to comply with the plaintiffs’ requested ESI production format, and further that the data sought was not inaccessible, and therefore duplication costs could not be viewed as unduly burdensome. However, Judge Cherry was mindful of “the apparent inequality of resources available to the parties in this case, the excessive costs that can be incurred in producing ESI, and that such costs can become so burdensome as to pressure a party to settle in order to avoid those costs.”

Therefore, it was ordered that the parties meet and confer in person to work toward resolution of the file format issues revolving around discovery in this case. Further, since the plaintiffs had stated familiarity with the systems used by the defendants, and understood how the requested discovery could be obtained “easily,” Judge Cherry ordered that the plaintiffs provide “written” communication from the [defendants’] internal forensic computer expert…setting forth the remaining specific deficiencies with [plaintiffs’]…ESI production and proposing a specific and detailed explanation for obtaining and delivering the information in a cost-efficient manner for [plaintiffs].”

So, what do you think? Given the agreement, should the judge have granted the motion to compel? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Plaintiff Ordered to Produce Facebook Photos and Messages as Discovery in Personal Injury Lawsuit – eDiscovery Case Law
 

In Forman v. Henkin, 2014 NY Slip Op 30679 (NY Sup. Ct. Mar 19, 2014), a Motion to Compel was granted in part for a defendant who requested authorization to obtain records of the plaintiff’s private postings to Facebook.

In this New York personal injury litigation, the plaintiff had been injured after falling off a horse owned by the defendant. During deposition, the plaintiff testified that she had posted photos of herself engaged in various activities on Facebook prior to the accident, and that she could no longer engage in those activities due to her injuries. Additionally, the plaintiff alleged that she had suffered brain injuries from the fall, which have impaired her ability to read and write, leaving her unable to compose text messages and emails. The plaintiff also claimed that her memory had been impaired, and so she could not remember whether she had posted any photos on Facebook after the injury.

At some point after the accident, but prior to the litigation, the plaintiff had deactivated her Facebook account. The defendant filed a “motion to compel disclosure or for penalties due to the plaintiff’s nondisclosure” requesting access to the plaintiff’s photos, status messages, and instant messages on the Facebook account. No time frame was specified for the defendant’s request.

Judge Lucy Billings noted that any photos of the plaintiff prior to her injury would be of little probative value, because “[i]f she did post such photographs on Facebook, they only will corroborate her testimony. If she did not post such photographs, their absence will not show that she did not engage in various activities before her injury that she no longer engages in.” However, it was stated that photos of the plaintiff after the accident would be of probative value. Specifically, “Photographs of plaintiff engaging in various activities after her injury, particularly any activities she claims she no longer is able to engage in due to her fall from defendant’s horse…”

In addition to photos, the defendant requested writings by the plaintiff from both pre-injury and post-injury time frames, to assess “the impact of plaintiff’s injury on her ability to reason, find words, write, and communicate effectively.” Judge Billings agreed that the defendant was entitled to request the plaintiff’s writings, both after the accident and for a limited time period leading up to the accident for the purposes of comparison. In addition, the defendant was permitted to obtain a psychological and a physical examination of the plaintiff to assess her communication abilities. However, it was noted that the plaintiff’s writing outside of private Facebook messages, along with a single examination, “may not fully reveal the frequency, speed, and volume of her writing,” and therefore the defendant was entitled to obtain Facebook records showing “each time plaintiff posted a private message and the number of characters or words in the text of each private messages,” for a time period from the date of the accident to the deactivation of her Facebook account.

The plaintiff was ordered to produce within 20 days all photos of herself engaged in the activities she intends to introduce at trial that were posted to Facebook, as well as all photos posted to Facebook after her injury that do not contain nudity or romantic encounters, and to provide the defendant with authorization to obtain records from Facebook as stated.

So, what do you think? Should private Facebook accounts be subjected to discovery requests, even after accounts have been deactivated? Are Facebook records presented without the actual text of the messages or postings sufficient to introduce as evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Contentious Discovery Dispute Process Leads to Ruling on “Reasonably Usable Format” for ESI – eDiscovery Case Law
 

In Castillon v. Corrections Corporation of America, Inc., No. 1:12-cv-00559-EJL (D. Idaho Feb. 7, 2014), Idaho District Judge Edward J. Lodge found a discovery dispute over the form of production of electronically stored information (ESI) in favor of the defendants, who had already produced the requested data in what was ruled a “reasonably usable format.”

This civil rights action displayed a demonstrated lack of cooperation between opposing counsel from the outset of the discovery phase. Following the first discovery disputes, it was noted that counsel had “refused to interact with each other reasonably and civilly. Many of the motions and briefs filed by both parties are full of hyperbole and contain unfounded accusations against opposing counsel.” While a discovery mediation had been somewhat successful in that both parties resolved many of the issues and filed a Stipulation as to certain discovery disputes, contention returned after just over one month, when the plaintiffs filed a Motion to Compel regarding information that was allegedly covered in the production produced by the defendants thus far.

Specifically, the plaintiffs sought to compel “all documents and communications including copies of the unit log books, shift logs, and other activity logs for all staff and contractors” employed by the defendants, as well as “all documents and communications including all records containing the terms of compensation and bonuses for any CCA employee with any supervisory authority” within a stipulated time period of January 1, 2009, to December 31, 2012. This discovery was categorized under Requests for Production Nos. 10 and 12, respectively.

The plaintiffs claimed that the information provided by the defendants regarding compensation and bonuses contained data for only one of the three named employees in supervisory capacities that they had requested, and further that the time frame of the information provided was insufficient. Additionally, the plaintiffs took issue with the format in which the documents were provided—specifically, searchable PDFs. The plaintiffs argued that “this is not a reasonably usable format and request that this information be re-produced in machine readable format and also request data covering a longer period of time.”

With regard to the first point of information concerning three specific supervisory employees, Judge Lodge ruled that the two employees for which data was not provided were outside the scope of discovery for this case. Specifically: “They do not work at ICC. They are not prison wardens. Therefore, Plaintiffs’ Motion to Compel improperly seeks information that Plaintiffs did not include in their discovery request. Plaintiffs’ Motion is therefore frivolous.”

Regarding the form of production for the documentation requested, the defendants pointed out that they had produced the data from their timekeeping database in searchable PDF format, which is the format that their system natively exports data. The defendants outlined the scenario that would allow them to produce ESI in the .csv (comma separated values) format requested by the plaintiffs as unduly burdensome and duplicative, as it would “require CCA to write a script that would then enable [the system] to export the time detail information Plaintiffs seek,” a process that would be “lengthy and daunting” and require “a team of between three and four people […] to expend three to four days creating the script, testing it, and confirming the accuracy of the data it produces.”

Judge Lodge ruled that because the defendants had already produced the requested data, they would not be required to produce it again in a different form. Further, it was noted that searchable PDF format is considered a reasonably usable form because “as the name implies, it can be easily searched.” The plaintiffs’ Motion to Compel was denied, though it was stipulated that if the plaintiffs agreed in writing to pay the defendants’ expenses in creating the script required to produce data in the requested format, they could approach the defendants with such a request.

So, what do you think? Should the term “reasonably usable form” cover any searchable format of ESI? Which party should be responsible for the costs of producing ESI in a specified format agreed on during discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Finds Rule for Arranging and Labeling Documents Does Not Apply to ESI – eDiscovery Case Law
 

In Anderson Living Trust v. WPX Energy Prod., No. CIV 12-0040 JB/LFG (D.N.M. Mar. 6, 2014), New Mexico District Judge James O. Browning granted the defendants’ Motion to Reconsider an earlier discovery ruling that would have required the defendants to arrange and label the discovery documents they had already produced, on the grounds that under Rule 34, this production was not considered electronically stored information.

At issue in this hearing was whether “a party must, under Rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or whether compliance with rule 34(b)(2)(E)(ii)—production of ESI in the form that the requesting party requests, or in another reasonably usable form—is sufficient.” This question was applied to the production of approximately 20,000 pages of hard copy documents, which the defendants had scanned and produced in the format requested by the plaintiffs.

Previously in the course of discovery for this case, both parties had reached an agreement concerning discovery for the defendants to convert particular hard copy documents “in the order they were maintained within each file” to “fully searchable PDF files.” However, once production was completed according to the plaintiffs’ specifications, the plaintiffs filed a motion to compel the defendants to arrange and label the scanned document in order to “designate which of the Plaintiffs’ numbered requests these documents are responsive to.” The plaintiffs maintained that they could not manage the “tens of thousands of pages of documents” produced by the defendants “[w]ithout knowing which documents correspond with specific requests and whether the Defendants have, in fact, produced any documents responsive to some requests…”.

The defendants voluntarily provided the plaintiffs with an index of their production in response to the motion to compel, and argued that requiring them to “parse through the verbiage of each request and narrow down precisely which file was produced in response to which request would take a significant amount of time” and would therefore be unduly burdensome.

Initially, Judge Browning was inclined to side with the plaintiffs, but after hearing the defendants’ Motion to Reconsider, it was concluded that under Rule 34, scanned hard copy documents would not be considered ESI, and therefore the requirement that “documents be produced either in the usual course of business or labeled to correspond to categories in the request” does not apply. Therefore, the defendants had met their discovery obligations.

Judge Browning stated in part: “From the evidence available to the Court, it appears that the Plaintiffs did more than merely ‘stipulate’ to the form of production – it appears the Defendants were the one making most of the concessions: they agreed to the Plaintiffs’ request to scan hard copy documents into ESI for the Plaintiffs’ convenience, and they assented to the Plaintiffs’ request to convert the information into PDF form, rather than the cheaper and more familiar [from the Defendants’ perspective] TIFF form.”

Therefore, the defendants’ Motion to Reconsider was granted, with the conclusion that the “defendants’ production of discovery in PDF format – consisting of items stored as ESI before the litigation, as well as approximately 20,000 pages of documents that existed in hard copy form before being rendered into ESI for production – is adequate, and no further production or labeling is required.”

So, what do you think? Should electronically stored information be defined solely as documents that already existed in electronic format prior to litigation? Should it be reasonably logical to assume that documents produced as discovery be arranged and labeled to correspond with responsive requests? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments – eDiscovery Case Law
 

In Skepnek v. Roper & Twardowsky, LLC, 11-4102-KHV (D. Kan. Jan. 27, 2014), Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.

The defendants opposed the motion to enforce, first by claiming that the plaintiffs had failed to meet and confer with them regarding the production of the Electronically Stored Information (ESI). While federal rules state that a party filing a motion has a duty to confer with opposing counsel, the local rules for this district expand upon that duty, specifically stating that “a ‘reasonable effort’ to confer means more than mailing or faxing a letter to the opposing party” and that the parties must in good faith “converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.”

Judge O’Hara noted that the opposing parties had exchanged correspondence and held a telephone conference in attempt to resolve this discovery dispute without the court’s intervention, and ruled that the plaintiffs had made a reasonable effort to confer with regard to producing email attachments.

The defendants also objected that the plaintiffs had waived their right to object to the form of production, which was at issue in that it resulted in emails being produced with the attachments missing. The defendants had been ordered to produce “all internal communications among defendants…that pertain to Requests for Production Nos. 6, 7, 10, and 11,” as well as “all electronic communications between Angela Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed by defendants in their motion.” These emails had been produced in PDF format, which did not result in the attachments being produced.

The plaintiffs suggested that if the ESI had been produced in native format, the attachments would have been included in production. Here, the defendants countered that they have always produced documents in PDF format, including emails, and that it would be “duplicative and burdensome to comply with plaintiffs’ request.” Further, the defendants had claimed that their “e-mail server search was not capable of producing the attachments to the e-mails,” but offered to produce specific attachments requested by the plaintiffs.

Judge O’Hara noted that producing attachments that have not previously been produced is not duplicative, and questioned why the defendants would be able to “produce specific attachments upon request,” when they claimed it was “impossible” to include all of the attachments. Additionally, the defendants did not offer evidence that producing the attachments would be burdensome, and the plaintiffs had not requested re-production of all documents. Instead, they “point[ed] out that one way defendants could [produce the missing attachments] is by producing the e-mails in their native format.”

Stating that the defendants “do not have the leisure of picking and choosing what responsive documents to produce,” Judge O’Hara ordered the defendants to produce all relevant communications, including attachments. No sanctions were imposed, since “both parties are at fault to some degree for failing to adequately confer early on regarding the production of ESI,” but the defendants’ request to have the plaintiffs pay for their production time was denied.

So, what do you think? Should a phone conference constitute a reasonable effort to confer with regard to the production format of ESI? Is PDF ever an appropriate format to produce email communications when attachments are relevant to the litigation at issue? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Ruling on ESI Discovery Dispute Delayed as Court Requests Specific Information – eDiscovery Case Law
 

In Worley v. Avanquest North America Inc., No. C 12-04391 WHO (LB), 2013 U.S. Dist. (N.D. Cal. Dec. 13, 2013), a putative class action involving PC security software, California Magistrate Judge Laurel Beeler required the defendant to produce further information related to discovery disputes before a ruling would be issued.

Various discovery disputes arose in this case after the parties failed to agree on a discovery period. The applicable statute of limitations for this lawsuit was five years, and the defendant offered to preserve as evidence Electronically Stored Information (ESI) created during that five-year period. However, the plaintiffs requested an additional ten years added to the discovery period, as this would preserve “all relevant and discoverable information from the time the original versions of the software were developed to the present.”

According to the legal standard set by Rule 26, subsection (b)(1), parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…” and relevant information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Therefore, Judge Beeler sided with the plaintiffs regarding an extended discovery period, stating that relevant information “such as documents relating to the software’s design and purpose, could have pre-dated the statutory period.”

However, the defendant stated that adding ten years to the discovery period would result in an unduly burdensome obligation for preservation, and would be disproportionate to the litigation. This is also addressed in subsection (b)(2)(C) under Rule 26, which states that “the court must limit the frequency or extent of discovery otherwise allowed by these rules…” if it is determined that the discovery would be “unreasonably cumulative or duplicative,” or that “the burden or expense of the proposed discovery outweighs its likely benefit” to the case.

Judge Beeler noted that the argument could not be addressed without further information, specifically that the parties had identified neither potential custodians, nor the amount of information the defendant actually had in its possession, since the defendant’s company acquired the software at issue in 2005. These details would be required in order for the defendant’s technical expert “to specify the burdens associated with preserving relevant information (particularly of electronically-stored information).”

Therefore, the defendant was ordered to identify custodians who would be likely to hold relevant information with regard to the plaintiff’s discovery requests, and further to “consult a person with expertise (such as an IT employee) and specify any undue burden associated with preservation, and produce non-burdensome, relevant information” before a ruling would be given. If the technical expert identified any issues that would make production of documents unduly burdensome, both parties were to “comply with the court’s discovery procedures and submit a joint discovery letter that provides details about the problems and puts their dispute in context.” Meanwhile, Judge Beeler ordered the defendant to produce the agreed documents covered by the five-year statute of limitations, noting that further “discovery can be iterative.”

The final discovery dispute concerned the defendant’s request for the plaintiffs to produce mirror image copies of hard drives belonging to the plaintiffs and their experts, in order to test the software at issue. The plaintiffs argued against this, as the hard drives contained both personal and privileged information, including financial data, family photos, and private communications. They instead proposed allowing the defendant to choose a forensic expert, who would image the hard drives and provide the defendant with specifically requested data, including “recreate[d] computing environments.”

Judge Beeler deemed the proposal “not workable,” and permitted the imaging of the drives with the allowance that the plaintiffs could use a protective order to protect any private information, and would be able to review and remove any privileged information prior to remanding the images to the defendant.

So, what do you think? Should discovery periods be limited to the statute of limitations applicable to a given case? Are protective orders sufficient to protect private information when personal-use computers are involved in litigation? Please share any comments you might have or if you’d like to know more about a particular topic.

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