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2013 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted on Thursday, Friday and yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).  Today, here are the rest of the cases related to sanctions.

We grouped those cases into common subject themes and have been reviewing them over the previous three posts.  Today is the last post in the series.  Perhaps you missed some of these cases?  Now is your chance to catch up!

SANCTIONS

Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Oh, and, apparently, having your case dismissed isn’t the worst that can happen to you for spoliation of data.  Here are the remaining 13 cases:

Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case.  In Cottle-Banks v. Cox Commc’ns, Inc., California District Judge Gonzalo P. Curiel denied the plaintiff’s motion for spolation sanctions because the plaintiff was unable to show that deleted recordings of customer calls would have likely been relevant and supportive of her claim.

Spoliation of Data Can Get You Sent Up the River.  Sometimes, eDiscovery can literally be a fishing expedition. I got a kick out of Ralph Losey’s article on E-Discovery Law Today (Fishing Expedition Discovers Laptop Cast into Indian River) where the defendant employee in a RICO case in Simon Property Group, Inc. v. Lauria threw her laptop into a river. Needless to say, given the intentional spoliation of evidence, the court imposed struck all of the defenses raised by the defendant and scheduled the case for trial on the issue of damages.

Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion.  Remember the adverse inference instructions in the Zubulake v. UBS Warburg and Apple v. Samsung cases? This case has characteristics of both of those. In Pillay v. Millard Refrigerated Servs., Inc., Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee.

Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction.  In Flagg v. City of Detroit, the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

eDiscovery Vendors Are Not Immune to eDiscovery Sanctions.  In Nuance Communications Inc. v. Abbyy Software House et al., California District Judge Jeffrey S. White refused Wednesday to dismiss Nuance Communications Inc.’s patent infringement suit against Lexmark International Inc. and Abbyy Software House, and awarded reimbursement of plaintiff’s attorneys’ fees and costs in excess of $130,000 as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later.  If you think discovery violations by the other side can cause you problems, imagine being this guy. As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

When Lawyers Get Sued, They Have Preservation Obligations Too.  In Distefano v. Law Offices of Barbara H. Katsos, PC., New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile.  In Gatto v. United Air Lines, Inc., New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright. Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

The Hammer Comes Down on Losing Plaintiff for Spoliation of Data.  Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data. You can also be ordered to pay the winning party over $200,000 in fees and costs for the case. In Taylor v. Mitre Corp., Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence.

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages.  In Christou v. Beatport, LLC, Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost. However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

JP Morgan Chase Sanctioned for a Failure to Preserve Skill Codes.  In EEOC v. JP Morgan Chase Bank, District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.

EEOC Sanctioned for Failing to Comply with Motion to Compel Production.  As noted previously in this blog, the Equal Employment Opportunity Commission (EEOC) was ordered to turn over social media information related to a class action case alleging sexual harassment and retaliation. Apparently, they were less than cooperative in complying with that order. In EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael E. Hegarty sanctioned the EEOC for failing to provide discovery of social media content.

Blind Reliance on Vendor for Discovery Results in Sanctions.  In Peerless Indus., Inc. v. Crimson AV, LLC, Illinois Magistrate Judge Susan E. Cox sanctioned the defendant for a “hands off approach” to discovery by relying on a vendor for conducting the discovery from a closely related non-party to the suit.

That’s our eDiscovery case review for 2013.  Let’s do it again next year!

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 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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted on Thursday and Friday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Friday, we looked back at cases related to production format disputes, search disputes and technology assisted review.  Today, let’s take a look back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).

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!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue, including the most viewed post in the history of this blog.  Here are three such cases:

Is a Blended Document Review Rate of $466 Per Hour Excessive?  Remember when we raised the question as to whether it is time to ditch the per hour model for document review? One of the cases we highlighted for perceived overbilling was ruled upon last month. In the case In re Citigroup Inc. Securities Litigation, New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

Court Rejects Defendants’ Claim of Undue Burden in ERISA Case.  In the case In re Coventry Healthcare, Inc.: ERISA Litigation, Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough.  In United States ex rel. King v. Solvay, S.A., Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

SANCTIONS

Yes, once again, the topic with the largest number of case law decisions related to eDiscovery is those decisions related to sanctions.  Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Here are the first 13 cases:

Company Should Have Preserved Personal eMails, But No Sanctions (Yet).  In Puerto Rico Telephone Co. v. San Juan Cable LLC, Puerto Rico Magistrate Judge Bruce J. McGiverin found that “plaintiff has proffered sufficient evidence to establish that [the defendant] OneLink failed to preserve relevant emails within its control”, but denied the plaintiff’s request for sanctions at this time because of the “absence of bad faith” on the defendant’s part and the plaintiff’s failure to demonstrate prejudice.

The Ubiquitous Apple Samsung Case and “Patentgate”.  When something gets the “gate” suffix added to it, that’s not a good thing. It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million, then increased back up to $930 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Duty to Preserve Triggered When Litigation is “Imminent”, Not “Reasonably Foreseeable”.  In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

Leaving Your Hard Drives in a Rental House is Negligent, Court Rules.  In Net-Com Services, Inc. v. Eupen Cable USA, Inc., the plaintiff’s destruction of evidence was negligent where its principal failed to take steps to preserve evidence he had stored in a home he rented to nonaffiliated lessees.

Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions. In Anderson v. Sullivan, a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, “scrambling” of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet.  In Logtale, Ltd. v. IKOR, Inc., California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct. The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Imagine if the Zubulake Case Turned Out Like This.  You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data.  If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

Permissive Adverse Inference Instruction Upheld on Appeal.  In Mali v. Federal Insurance Co., the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

Default Judgment Sanction Upheld on Appeal.  In Stooksbury v. Ross, the Sixth Circuit upheld the entry of default judgment as a sanction against defendants that repeatedly failed to comply with discovery obligations, including producing a “document dump” of tens of thousands of pages of nonresponsive information that prejudiced the plaintiffs.

Spoliation Sanctions Can Apply to Audio Files Too.  In Hart v. Dillon Cos., Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer.  On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

Appellate Court Denies Sanctions for Routine Deletion of Text Messages.  In PTSI, Inc. v. Haley, the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

Tune in tomorrow for the remaining thirteen sanctions cases in 2013!

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 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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 2

As we noted yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and eDiscovery cost reimbursement.  Today, let’s take a look back at cases related to production format disputes, search disputes and technology assisted review.

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!

PRODUCTION FORMAT DISPUTES

Disputes regarding the form of production appear to be on the rise.  Typically, judges are instructing to provide searchable productions with metadata, but at least one judge ruled that “without Bates stamping and .tiff format, the plaintiff’s production was not reasonably usable”.  Go figure.  Here are the six cases involving production format disputes:

Court Declines to Impose Default Judgment, But Orders Searchable Production and Extends Deadlines. In Kwan Software Engineering, Inc. v. the defendant Technologies, LLC, California District Judge Susan Illston denied the plaintiff’s motion for terminating sanctions against the defendant for late, non-searchable productions, but did order the defendant to produce documents in a searchable format with metadata and extended the pretrial schedule so that the plaintiff would not be prejudiced by the late productions.

Court Denies Plaintiff’s Request for Native Production, Allows PDFs Instead. In Westdale Recap Props. v. Np/I&G Wakefield Commons, North Carolina Magistrate Judge James E. Gates upheld the plaintiff’s motion to compel the defendants to conduct supplemental searches and production, but denied the plaintiff’s motion with regard to requiring the defendant to produce ESI in native format, instead finding that “production in the form of searchable PDF’s is sufficient”.

Judge Sides with Both Parties in Form of Production Dispute. The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

Defendant Compelled by Court to Produce Metadata. In AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society, Idaho District Judge B. Lynn Winmill granted the plaintiff’s motion to compel documents, ordering the defendant to identify and produce metadata for the documents in this case.

Court Rules Production Must be TIFFs with Bates Numbers. In Branhaven, LLC v. Beeftek, Inc., Maryland Magistrate Judge Susan K. Gauvey sanctioned plaintiff’s attorneys for wrongfully certifying the completeness of their eDiscovery production and also ruled that defendants “demonstrated that without Bates stamping and .tiff format”, the plaintiff’s production “was not reasonably usable and therefore was insufficient under Rule 34”.

Waste Management Wants to Throw Away the Metadata. In the case In Re: Waste Management of Texas, Inc., a Texas appeals court refused to grant Waste Management’s petition for writ of mandamus to direct the trial court to withdraw its order to produce native, electronic format with all metadata.

SEARCH DISPUTES

Disputes regarding search terms, with regard to which terms to perform and also whether search terms should be disclosed, were also on the rise this year.  Believe it or not, one plaintiff referred to Boolean searching as “unprecedented”.  Here are the five cases we covered regarding search term disputes:

Court Orders Plaintiff to Perform Some Requested Searches Despite the Plaintiff’s Claim that they’re “Unprecedented”. In Swanson v. ALZA Corp., California Magistrate Judge Kandis A. Westmore granted in part and denied in part the defendant’s request to compel the plaintiff to apply its search terms to his ESI, ordering some of the search terms to be performed, despite the plaintiff’s assertion that the “the application of Boolean searches was unprecedented”.

Without Meet and Confer Approval of its “Triangulating” Approach to Discovery, Defendant Ordered to Supplement Production. In Banas v. Volcano Corp., California District Judge William H. Orrick determined that a defendant’s approach to discovery in which identifying the relevant documents by “triangulating” the defendant’s employees wasn’t discussed with the plaintiff beforehand in a meet and confer. Despite the fact that the court did “not find that defendant’s production technique was unreasonable”, the defendant was ordered to supplement its responses since the approach wasn’t discussed and it left out multiple deponents.

Use of Model Order Doesn’t Avoid Discovery Disputes. In MediaTek, Inc. v. Freescale Semiconductor, Inc., when the parties could not agree on search terms, California Magistrate Judge Jacqueline Scott Corley ordered one party to run test searches before lodging objections and required both parties to meet and confer before approaching the court with further discovery disputes.

If Production is Small, Does that Mean ESI is Being Withheld? In American Home Assurance Co. v. Greater Omaha Packing Co., Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

Court Forces Defendant to Come to Terms with Plaintiff Search Request. In Robert Bosch LLC v. Snap-On, Inc., Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform. The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

TECHNOLOGY ASSISTED REVIEW

With technology assisted review having been approved in several cases in 2012, we started to see some results of that process last year and conclusion of the plaintiff’s efforts to recuse Judge Peck in DaSilva Moore.  We also saw the approval of a multi-modal approach in one case and asked the question whether 31,000 missed relevant documents is an acceptable outcome in another.  Here are six cases related to technology assisted review from 2013:

Plaintiffs’ Supreme Effort to Recuse Judge Peck in Da Silva Moore Denied. As we discussed back in July, attorneys representing lead plaintiff Monique Da Silva Moore and five other employees filed a petition for a writ of certiorari with the US Supreme Court arguing that New York Magistrate Judge Andrew Peck, who approved an eDiscovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding. On October 7, that petition was denied by the Supreme Court.

Judge Says “Dude, Where’s Your CAR?” Ralph Losey describes a unique case in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One). In Northstar Marine, Inc. v. Huffman, the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case?  Back in June, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process. The sticking point may be the ESI consultant in dispute.

Never Mind! Plaintiffs Not Required to Use Predictive Coding After All. Remember EORHB v. HOA Holdings, where, in a surprise ruling, both parties were instructed to use predictive coding by the judge? Well, the judge has changed his mind.

Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected. In the case In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), the Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching. Indiana District Judge Robert L. Miller, Jr. denied the request.

Is 31,000 Missed Relevant Documents an Acceptable Outcome?  It might be, if the alternative is 62,000 missed relevant documents. In January, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin. Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.

Tune in Monday for more key cases of 2013!

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 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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 1

It’s time for our annual review of eDiscovery case law!  We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, production formats and search parameters, among other things.  So, as we did last year and also the year before, let’s take a look back at 2013!

Last year, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  As always, there are numerous disputes about data being produced and not being produced.  Here are ten cases related to admissibility and the duty to preserve and produce ESI:

Court Rules Defendant Doesn’t Have Controls of PCs of Former Members, Denies Plaintiff’s Motion to Compel.  To require a party to produce evidence in discovery, the party must have “possession, custody, or control” of the evidence. In Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Nemaha Brown Watershed Joint District No. 7, the defendant did not have control over the personal computers of its former members, employees, or staff; it did not have the legal right to obtain information from them “on demand.” Therefore, the court rejected the plaintiff’s motion to compel and refused to order the forensic examination of the personal computers of current or former members, employees, or staff.

Court Rejects Defendant’s “Ultra-Broad” Request, Denies Motion to Compel Production.  In NOLA Spice Designs, LLC v. Haydel Enters., Inc., Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info.  In Salvato v. Miley, a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant.  In Moore v. Miller, Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

Court Rules that Stored Communications Act Applies to Former Employee Emails.  In Lazette v. Kulmatycki, the Stored Communications Act (SCA) applied when a supervisor reviewed his former employee’s Gmails through her company-issued smartphone; it covered emails the former employee had not yet opened, but not emails she had read but not yet deleted.

Google Compelled to Produce Search Terms in Apple v. Samsung.  In Apple v. Samsung, California Magistrate Judge Paul S. Grewal granted Apple’s motion to compel third party Google to produce the search terms and custodians used to respond to discovery requests and ordered the parties to “meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.”

Plaintiff Granted Access to Defendant’s Database.  In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

Yet Another Request for Facebook Data Denied.  In Potts v. Dollar Tree Stores, Inc., Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

Stored Communications Act Limits Production of Google Emails.  In Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., California Magistrate Judge Paul S. Grewal granted much of the defendant’s motion to quash subpoena of Google for electronic communications sent or received by certain Gmail accounts allegedly used by employees of the defendant because most of the request violated the terms of the Stored Communications Act.

Another Social Media Request Denied as a “Carte Blanche” Request.  In Keller v. National Farmers Union Property & Casualty Co., the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests. While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

EDISCOVERY COST REIMBURSEMENT

As usual, eDiscovery cost reimbursement was a “mixed bag” as the cases where the prevailing party was awarded reimbursement of eDiscovery costs and the cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted) was about even.  Here are six cases, including one where the losing plaintiff was ordered to pay $2.8 million for predictive coding of one million documents(!):

Cost-Shifting Inappropriate when Data is Kept in an Accessible Format.  In Novick v. AXA Network, New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

Apple Wins Case, But Loses its Bid to Have Most of its Costs Covered.  In Ancora Technologies, Inc. v. Apple, Inc., California District Judge Yvonne Gonzalez Rogers granted in part and denied in part Ancora’s Motion for Review of Clerks’ Order on the Bill of Costs of prevailing party Apple, reducing the awarded amount from $111,158.23 down to $20,875.48, including disallowing over $71,000 in storage and hosting costs.

Another Case where Reimbursement of eDiscovery Costs are Denied.  In The Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., when deciding which costs are taxable, the Fourth Circuit chose to follow the Third Circuit’s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., which read 28 U.S.C. § 1920(4) narrowly. Specifically, the court approved taxation of file conversion and transferring files onto CDs as “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case” but no other tasks related to electronically stored information (ESI).

In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to Plaintiff.  In United States ex rel. Becker v. Tools & Metals, Inc., a qui tam False Claims Act litigation, the plaintiffs sought, and the court awarded, costs for, among other things, uploading ESI, creating a Relativity index, and processing data over the objection that expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client.” The court also approved electronic hosting costs, rejecting a defendant’s claim that “reasonableness is determined based on the number of documents used in the litigation.” However, the court refused to award costs for project management and for extracting data from hard drives where the plaintiff could have used better means to conduct a “targeted extraction of information.”

Court Says Scanning Documents to TIFF and Loading into Database is Taxable.  In Amana Society, Inc. v. Excel Engineering, Inc., Iowa District Judge Linda R. Reade found that “scanning [to TIFF format] for Summation purposes qualifies as ‘making copies of materials’ and that these costs are recoverable”.

Must Losing Plaintiff Pay Defendant $2.8 Million for Predictive Coding of One Million Documents? Court Says Yes.  In Gabriel Technologies Corp. v. Qualcomm Inc., District Judge Anthony J. Battaglia awarded the defendant over $12.4 million in attorneys’ fees to be paid by the losing plaintiff in the case. The amount included over $2.8 million for “computer-assisted, algorithm-driven document review” and nearly $392,000 for contract attorneys to review documents identified by the algorithm as responsive.

We’re just getting started!  Tomorrow, we will cover cases related to production format disputes, search disputes and technology assisted review.  Stay tuned!

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 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.

Split Decision between Plaintiff and Defendant Regarding Search Terms – eDiscovery Case Law
 

In Federal Deposit Insurance Corp. v. Giannoulias, No. 12 C 1665, 2013 U.S. Dist. (N.D. III Oct. 23, 2013), Illinois District Judge John F. Grady resolved several motions regarding discovery proceedings in a $114 million lawsuit. Two of the motions concerned search terms for documents and electronically stored information (ESI), in which the plaintiff opposed the defendants’ request for six additional terms to be included in retrieving discovery documents. The court ruled that four additional search terms would be added, while two would be excluded.

This discovery dispute arose in a lawsuit filed by the Federal Deposit Insurance Corp. (FDIC) as a receiver for Broadway Bank, which alleges that several former officers and directors of the now-closed bank had “negligently approved” 20 commercial real estate loans, resulting in losses to the FDIC of $114 million. During the first phase of discovery, the defendants had served 242 requests for production, and in response the plaintiff produced 500,000 pages of documents that pertained to the loans in question.

The dispute occurred during the second phase of discovery concerning the ESI, which in this case consists of mostly emails. The plaintiff and defendant had cooperatively generated a list of around 250 unique search terms, which the plaintiff applied to the ESI and produced approximately 150,000 hits. The defendant then requested that six further search terms be included. Combined, the six terms produced around 16,800 additional hits.

The plaintiff disagreed with the addition of the search terms and both parties failed to reach an agreement regarding what, specifically, should be done with the data resulting from the finalized ESI search terms. A proposal from the defendants requested that the plaintiff be required to review the filtered ESI to determine which materials were responsive to the defendants’ request, and also that the plaintiff organize and label the production of filtered results.

However, the plaintiff contended that the proposed ESI Protocol would be “unduly burdensome,” and instead proposed to provide a database in Relativity to contain all documents generated by the finalized search terms. The defendants would then be allowed to search and review the database, identify the documents of interest, and subject the chosen documents to a review by the plaintiff for privilege before being furnished with any non-privileged documents.

Judge Grady’s ruling split the additional six search terms in question, allowing four specific and relevant terms to be added to the discovery, and disallowing two general terms: “capitalized” and “capitalization.” This decision was based on the nature of the plaintiff’s business, and the view that “the connection between the terms ‘capitalized’ and ‘capitalization’ and the complaint’s core negligence allegations is tenuous, and the likelihood of entirely irrelevant hits appears high.”

With regards to responsiveness review and organization of document production, the court ruled that while the plaintiff must filter the discovery documents according to the agreed-upon search terms by conducting “a diligent search, which involves developing a reasonably comprehensive search strategy,” the plaintiff is not obligated to “examine every scrap of paper in its potentially voluminous files” to comply with discovery obligations. Further, the court ruled in favor of the plaintiff toward organizing and categorizing relevant ESI according to the numerous discovery requests by the defendants, agreeing that such a process would “impose a substantial burden” on the plaintiff.

So, what do you think?  Is the plaintiff meeting discovery obligations without a full responsiveness review? Should all of the requested search terms have been added? 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 Orders Plaintiff to Perform Some Requested Searches Despite the Plaintiff’s Claim that they’re “Unprecedented” – eDiscovery Case Law
 

In Swanson v. ALZA Corp., No.: CV 12-04579-PJH (KAW), 2013 U.S. Dist. (N.D. Cal. Oct. 7, 2013), California Magistrate Judge Kandis A. Westmore granted in part and denied in part the defendant's request to compel the plaintiff to apply its search terms to his ESI, ordering some of the search terms to be performed, despite the plaintiff’s assertion that the “the application of Boolean searches was unprecedented”.

In this patent dispute, the plaintiff produced nearly 750,000 pages of documents to the defendant on a rolling basis between June and August 9, 2013, of which more than 600,000 pages were from ESI sources. During that period, the parties met and conferred regarding possible additional search terms designed to capture further documents responsive to the defendant's requests, but were unable to agree.  On July 17, the defendant filed a motion to compel demanding that its new terms be utilized to search the plaintiff's ESI, to which the plaintiff objected.

Part of the dispute was in agreeing on the number of terms that the defendant was requesting: the plaintiff characterized the defendant's request as proposing 89 additional terms, whereas the defendant characterized its request as only equating to 25 additional search "terms," which were distinct searches containing multiple terms and Boolean operators.  After the court ordered the parties to provide supplemental information to assist in the resolution of the underlying dispute on August 27, the defendant, believing documents were missing from the production based on the plaintiff’s sample searches, asked for access to the plaintiff’s database to run its own searches, or for the plaintiff to run a narrowed list of 11 “terms”.  At the hearing, the plaintiff's counsel explained that his firm ran two sample ESI searches, which took 34 hours and 51 minutes, and 23 hours and 58 minutes, respectively.

Judge Westmore “was not persuaded by Plaintiff's argument that running modified searches would place such an undue burden as to relieve Plaintiff of his obligation to produce responsive documents” and did not agree with the plaintiff’s contention that “the application of Boolean searches was unprecedented”, stating “[t]his is actually not the case, and given the availability of technology, Boolean searches will undoubtedly become the standard, if, for no other reason, to limit ESI documents to those most likely to be relevant to pending litigation.”

Ultimately, Judge Westmore ruled for the plaintiff to deduplicate the results of its two sample searches and to perform three of the other requested searches, stating that “[w]hile Defendant has not shown that it should be entitled to have all 11 searches performed, the Court is persuaded that it would not be unduly burdensome for Plaintiff to perform the searches below in light of Plaintiff's unwillingness to produce its ESI database”.

So, what do you think?  Was this a fair compromise?   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.

Without Meet and Confer Approval of its “Triangulating” Approach to Discovery, Defendant Ordered to Supplement Production – eDiscovery Case Law
 

In Banas v. Volcano Corp., No. 12-cv-01535-WHO (N.D. Cal. Oct. 4, 2013), California District Judge William H. Orrick determined that a defendant’s approach to discovery in which identifying the relevant documents by "triangulating" the defendant's employees wasn’t discussed with the plaintiff beforehand in a meet and confer.  Despite the fact that the court did “not find that defendant's production technique was unreasonable”, the defendant was ordered to supplement its responses since the approach wasn’t discussed and it left out multiple deponents.

In what was described as a “tentative” ruling, the facts were laid out as such:

  • In order to address the massive discovery required in this case, the defendant decided to identify the relevant documents by "triangulating" the defendant's employees. Rather than search every employee's emails, the defendant selected a subset of employees who would likely have received documents from, or sent them to, other employees who might have had involvement in this matter, so that the result would "most likely" capture all the relevant documents. In discovery, the defendant produced more than 225,000 documents. There was no agreement or even discussion between the parties about defendant's triangulation approach before the documents were produced.
  • Because of the volume of discovery in this case, documents were produced on a rolling basis. The last group of documents was produced shortly before the close of fact discovery.
  • Plaintiffs took the depositions of some 18 current or former employees of defendant. At least some of those witnesses were not within the subset of employees whose emails were searched directly by defendant.
  • The plaintiff had a hard drive that contained various documents he received while employed by the defendant. The plaintiffs compared the documents on his hard drive with the documents produced by the defendant regarding one employee they deposed and found that the defendant had produced a small fraction of the documents held by the plaintiff involving that deponent (the parties disputed his importance to the litigation).

Because of the discrepancy between the documents produced by the defendant and those contained in the plaintiff's hard drive, the plaintiff requested that the defendant search the electronic files of the witnesses whom plaintiffs deposed to ensure that the production is complete.  Though Judge Orrick did “not find that defendant's production technique was unreasonable”, he found that the plaintiff’s request was reasonable and “[u]nless there was an agreement concerning the ‘triangulation’ approach”, ordered the defendant to “perform this supplementary search and to produce any non-duplicative items”.

So, what do you think?  Could this dispute have been avoided by a meet and confer?   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 Declines to Impose Default Judgment, But Orders Searchable Production and Extends Deadlines – eDiscovery Case Law
 

In Kwan Software Engineering, Inc. v. the defendant Technologies, LLC, No. C 12-03762 SI (N.D. Cal. Oct. 1, 2013), California District Judge Susan Illston denied the plaintiff’s motion for terminating sanctions against the defendant for late, non-searchable productions, but did order the defendant to produce documents in a searchable format with metadata and extended the pretrial schedule so that the plaintiff would not be prejudiced by the late productions.

After being court-ordered to produce documents by August 20, 2013, the defendant produced the majority of the documents (over 200,000 pages) after the deadline on September 13 and September 25.  As a result, the plaintiff filed a motion for terminating sanctions against the defendant pursuant to Federal Rule of Civil Procedure 37(b), based on the defendant's untimely production of documents. In the alternative, the plaintiff sought the following sanctions:

(1)   that within three business days, the defendant must produce all documents responsive to the plaintiff's requests in searchable electronic format with metadata included;

(2)   that the plaintiff's non-expert and expert discovery cut-offs be unilaterally extended to December 15, 2013;

(3)   that the defendant be precluded from using any documents produced after August 20, 2013, for any purpose; and

(4)   that the defendant be required to pay monetary sanctions in the amount of $2,880 to reimburse the plaintiff for the costs of its motion.

The plaintiff also requested that the Court leave the trial date unaltered.

Noting that a terminating sanction should only be imposed in “extreme circumstances”, Judge Illston described the factors to be considered, as follows:

(1)   the public's interest in expeditious resolution of litigation;

(2)   the court's need to manage its docket;

(3)   the risk of prejudice to the other party;

(4)   the public policy favoring the disposition of cases on their merits; and

(5)   the availability of less drastic sanctions.

After consideration of the above factors, Judge Illston declined to impose a terminating sanction, noting that a “sanction less drastic than default is available to remedy any potential prejudice” to the plaintiff.  She did order the defendant to produce the documents in a searchable format with metadata and amend the pretrial schedule for both parties for non-expert and expert discovery cut-offs and deadlines to designate expert witnesses.  In its response, the defendant stated that “it can produce the documents in a searchable format with metadata in a week”.

So, what do you think?  Should the request for terminating sanctions have been granted?   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.

Requesting Discovery in the Modern Age – eDiscovery Best Practices
 

Leave it to Craig Ball to break down requests for production of electronically stored information (ESI) in a simple and straightforward manner.

In his new article on Law Technology News (Modern E-Discovery Requests), he describes six “challenges” to “help litigators lose the boilerplate and write requests as sleek and modern as ESI itself”.

The article describes the challenges, and Craig provides some excellent examples to illustrate best practices.  Here are the challenges:

CHALLENGE 1: The definition of "document" must give way to an alternate term like "information."  Let’s face it, much of the information requested in discovery today doesn’t fit the traditional “document” format (e.g., videos, Facebook posts, texts, “tweets”, etc.).  As Craig notes, it’s not necessary to attempt to list them all and possibly miss one – the term “information” is sufficient.  Craig provides a simple example sentence here that conveys a concise, but effective way to request “information” in the request.

CHALLENGE 2: In practice, the catchalls "any and all" and "including, but not limited to" rarely serve to broaden the scope of a request, but they're lightning rods for objection.  Again, Craig provides examples verbiage that addresses the “any and all” coverage in the preface to obviate the need to cover it in each individual request.

CHALLENGE 3: When you define a term and either fail to use it or use an undefined variant, your request broadcasts your reliance on forms—it's easy to show you haven't customized your request to the case.  In other words, make sure that each request is customized and not boilerplate with regard to definition of terms.

CHALLENGE 4: Many requests fail to specify the forms sought for ESI production. Specifying "native format" isn't much better.  Specify forms of production sensibly and precisely. Don't assume that "native format" is clear or sufficient; instead, specify the formats sought for common file types.  Craig provides an excellent chart of the most common file types by file extension.

CHALLENGE 5: A well-crafted request should designate the medium of ESI production as well as the forms of production.  In other words, provide language that addresses the appropriate media for the size of production.  Again, Craig provides example wording that covers appropriate media for different sizes of productions.

CHALLENGE 6: Every electronic file has a complement of descriptive information called system metadata residing in the file table of the system or device storing the file. Different file types have different metadata… Develop a comprehensive production protocol tailored to the case and serve same with discovery. Short of that, specify the particular items of metadata and header fields you seek.  Once again, Craig provides an excellent example list of general fields to request, as well as those specific to email messages.

The examples that Craig provides are excellent illustrations of best practices for production requests and well worth checking out.  To view Craig’s article, click here.

So, what do you think?  How do you structure your production 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.

Crispin v. Christian Audigier Inc. – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Until recently, this post was the most viewed of all time; with nearly 1,300 lifetime views, it is still the second most viewed post all time, originally published way back in December 2010.  Enjoy!

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Discoverability of social media content has been a big topic this year, with several cases addressing the issue, including this one, previously discussed on eDiscovery Daily.  The holiday week look back at cases concludes with Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010), which addresses whether ‘private’ data on social networks is discoverable.

This copyright infringement claim brought by artist Buckley Crispin against defendant and designer Christian Audigier, alleges that Audigier used artwork outside the scope of the original oral license between the parties and also sub-licensed the artwork to other companies and individuals (named as co-defendants) without Crispin’s consent.  The defendants served subpoenas on social media providers Facebook, MySpace, and Media Temple, directing them to turn over all communications between Crispin and Audigier, as well as any communications referencing the co-defendants.

Crispin sought to quash the subpoenas, arguing that they sought private electronic communications protected under the Stored Communications Act of 1986 (SCA), prohibiting Electronic Communication Services (ECS) and Remote Computing Services (RCS) providers from turning over those communications, but the motion was denied because Magistrate Judge John E. McDermott determined that Facebook, MySpace, and Media Temple did not qualify for protection from disclosure under the SCA.  Crispin moved for reconsideration with the U.S. District Court for the Central District of California.

District Court Judge Margaret Morrow’s decision partially reversed and partially vacated Judge McDermott’s order, finding that the SCA’s protections (and associated discovery preclusions) include at least some of the content hosted on social networking sites, including the private messaging features of social networking sites protected as private email.  She also concluded that because Facebook, MySpace, and Media Temple all provide private messaging or email services as well as electronic storage, they all qualify as both ECS and RCS providers, with appropriate SCA protections.

However, regarding Facebook wall postings and MySpace comments, Judge Morrow determined that there was insufficient evidence to determine whether these wall postings and comments constitute private communications as the user’s privacy settings for them were less clear and ordered a new evidentiary hearing regarding the portions of the subpoenas that sought those communications.

This opinion sets a precedent that, in future cases, courts may allow protection to social networking and web hosting providers from discovery based on SCA protections as ECS and RCS providers and may consider social media ESI protected, based on the provider’s privacy controls and the individual user’s privacy settings.

So, what do you think?  Is this the most significant eDiscovery case of 2010?  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.