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If You’re Going to Attend Just One Session at LegalTech Next Week, Make it This Session – eDiscovery Best Practices

In just a few days, there will be big happenings in the New York area!  No, I’m not talking about the big game, I’m talking about the biggest legal technology event of the year, LegalTech New York (LTNY).  If you’re going to be attending the conference this year (and, if not, why not?), here is a session that is a “must attend” for anyone who wants to know leading judges’ perspectives on eDiscovery rules changes and best practices.

On Day 2 of the conference, Wednesday, February 5 at 9:00am, eDiscovery industry expert Craig Ball will lead a discussion with five renowned judges who have had significant impact on how lawyers manage legal technology.  The Day Two Keynote General Session Presentation – Judges Panel: Changing Rules and Best Practices in e-Discovery will include Craig and the following judges:

  • Honorable Lee H. Rosenthal, United States District Judge, Southern District of Texas
  • Honorable Shira A. Scheindlin, United States District Judge, Southern District of New York
  • Honorable John M. Facciola, United States Magistrate Judge, District of Columbia
  • Honorable James C. Francis, United States Magistrate Judge, Southern District of New York
  • Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York

Most of these judges were discussed in Lisa Holton’s article (E-Discovery: A Front-Row Seat) as “trailblazing” judges in The American Lawyer (we covered it here) and we’ve covered a number of their decisions and opinions over the history of this blog.

As the summary of the session notes, when it comes to legal technology, few names are more synonymous with the industry than these panelists.  Craig will lead the discussion, as the judges share their views on today’s legal landscape with an eye towards what the future holds.  These eDiscovery pioneers will share their experiences and viewpoints to help attendees best prepare for the law and practice of tomorrow.

Craig referenced the session in his own excellent blog, Ball in Your Court, here. As Craig notes, “The judges will be discussing some of what you might expect, e.g., proposed Rules amendments, predictive coding, Rule 502 and expectations of lawyer technical competence.  We will also be exploring a few fresh issues, like the impact all those little screens are having on everyone in and out of court.”   Craig also indicated that there was “still time to add topics and questions of interest to you” – if there is a topic you would like him to cover, you can post a comment to his blog post here or email him at craig@ball.net.

Because this session is a Keynote General Session, it’s open to all attendees, so, if you’re at the show next week, this session is a must see.  Don’t miss it!

LTNY starts next Tuesday and eDiscovery Daily will be covering the show for the fourth straight year.  We will also be conducted our thought leader interview series at the show again for the fourth straight year as well!  After the show, we will publish the schedule for posting the interviews.  Stay tuned!

So, what do you think?  Are you attending LTNY this year?  Do you plan to attend this session?  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 Grants Motion to Compel Defendant to Produce Documents as Requested and Chronicle Approach – eDiscovery Case Law
 

In Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 U.S. Dist. (D. Neb. Nov. 8, 2013), following a motion to compel discovery on behalf of the plaintiff, Nebraska Magistrate Judge Cheryl R. Zwart ordered the defendant to produce documents requested during discovery and required the defendant to produce a sworn affidavit chronicling the methods used in their search for production of the discovery documents.

During this dispute over a franchise agreement, the parties were ordered to meet for a discussion of the discovery matter but failed to resolve any issues.  The plaintiff alleged the documents were not produced due to the defendant’s destruction, deleting, selling, shredding, or otherwise discarding of the documents.  The plaintiff also alleged that their attempts at searching electronically for documents fell short of a good faith effort and was therefore inadequate.  According to testimony by both David and Michelle Florance, the defendants, there was not a thorough search of email accounts for responsive documents.  This “broad” search did not include reviewing client paper files, employee files, caregiver logs, or client care plans or service contracts. 

Additionally, the defendants were unable to explain what efforts their employees used to find information.  Furthermore, their electronic search merely consisted of looking for the words “Home Instead”, and they subsequently deleted any documents found.  The defendants did not retain a copy or forward the document to counsel.  Judge Zwart agreed with the plaintiff and felt they were entitled to a sworn affidavit, “not only to determine the extent of the defendants’ search for production of responsive discovery”, but to also assess the defendant’s culpability in failing to preserve evidence used in litigation.

As to the manner of production, the plaintiff alleged the defendants provided “one large PDF that contains no metadata, no indication of parent-document relationship, on no indication as to the beginning and end of each document.”  The motion requested Judge Zwart to compel the defendants to produce their discovery responses in compliance with the Federal Rules.

According to the parties’ Rule 26(f) report, any document maintained in electronic form during a party’s normal course of business will also be produced in electronic form as “searchable TIFF images with load files to allow images to be loaded into a document production database.”  Those documents not produced in electronic form in a party’s ordinary course of business and not scanned into electronic form prior to the date of production are allowed to be produced in the manner in which they are maintained.  In addition, Rule 34(b)(2)(e) of the FRCP states that a party “must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.”

The defendant’s deposition testimony showed that while the defendants located electronic documents, they did not produce them in an electronic format as required under their agreement with the Plaintiff or the federal rules.  They also failed to organize and label any documents that may have existed in their usual course of business, a requirement under the Federal Rules.  Judge Zwart agreed with the plaintiff, stating that the defendants “failed to organize and label [the documents] as required under the Federal Rules,” and granted the plaintiff’s motion to compel.

So, what do you think?  Should the motion to compel 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.

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.

Six eDiscovery Predictions for 2014, Part One – eDiscovery Trends

It’s that time of year, where people make predictions for the coming year for all sorts of things, including electronic discovery trends for the coming year.  Though I have to say, I’ve seen fewer predictions this year than in past years.  Nonetheless, I feel compelled to offer some of my own predictions.  If they turn out right, you heard it here first!

Prediction 1: Predictive coding technologies will become more integrated into the discovery process, for more than just review.

Two or three years ago, predictive coding (a.k.a., technology assisted review or computer assisted review) was a promising technology that had yet to be officially accepted in the courts.  Then, in 2012, cases such as Da Silva Moore v. Publicis Groupe & MSL Group, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al and In re Actos (Pioglitazone) Products Liability Litigation, predictive coding was approved (and there was at least two other cases where it was contemplated).  So, it’s beginning to be used, though most attorneys still don’t fully understand how it works or understand that it’s not a “turn-key” software solution, it includes a managed process that uses the software.

It’s not going out on a limb to say that this year predictive coding technologies will be more widely used; however, I think those technologies will branch out beyond review to other phases of the eDiscovery life cycle, including Information Governance.  Predictive coding is not new technology, it’s basically artificial intelligence applied to the review process, so it’s logical that same technology can be applied to other areas of the discovery life cycle as well.

Prediction 2: The proposed amendments will be adopted, but it will be a struggle.

Changes to Federal Rules for eDiscovery have been drafted and have been approved for public comment.  However, several people have raised concerns about some of the new rules.  Judge Shira Scheindlin has criticized proposed Rule 37(e), intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation, for creating “perverse incentives” and encouraging “sloppy behavior.”

U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, predicted that some proposed restrictions – such as reducing the number of depositions, interrogatories and requests for admission for each case – “would do nothing about the high-stakes, highly complex or highly contentious cases in which discovery costs are a problem.”  Senator Coons and Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund Inc., also expressed concerns that those limits would likely restrict plaintiffs in smaller cases in which discovery costs are not a problem.

Needless to say, not everybody is a fan of all of the new proposed rules, especially Rule 37(e).  But, the proposed rules have gotten this far and there are a number of lobbyists pushing for adoption.  So, I think they’ll be adopted, but not without some controversy and struggle.

Prediction 3: The eDiscovery industry will continue to consolidate and many remaining providers will need to continue to reinvent themselves.

Every year, I see several predictions that more eDiscovery vendors will fail and/or there will be more consolidation in the industry.  And, every year there is consolidation.  Here’s the latest updated list of mergers, acquisitions and investments since 2001, courtesy of Rob Robinson.  But, every year there also new players in the market, so the number of providers never seems to change dramatically.  Last year, by my count, there were 225 exhibitors at Legal Tech New York (LTNY), with many, if not most of them in the eDiscovery space.  This year, the partial list stands at 212.  Not a tremendous drop off, if any.

Nonetheless, there will be more pressure on eDiscovery providers than ever before to provide services at reasonable prices, yet turn a profit.  I’ve seen bold predictions, like this one from Albert Barsocchini at NightOwl Discovery in which he predicted the possible end of eDiscovery processing fees.  I’m not sure that I agree that they’re going away entirely, but I do see further commoditization of several eDiscovery services.  The providers that offer truly unique software offerings and/or expert services to complement any commodity-based services that they offer will be the ones best equipped to meet market demands, profitably.

On Monday, I predict I’ll have three more predictions to cover.  Hey, at least that’s one prediction that should come true!

So, what do you think?  Do you have any eDiscovery predictions for 2014?  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.

Does Size Matter? – 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!  Apparently, my catchy title worked as, with over 1,150 lifetime views, here is the third most viewed post all time, originally published in March 2011.  Enjoy!

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I admit it, with a title like “Does Size Matter?”, I’m looking for a few extra page views.  😉

I frequently get asked how big does an ESI collection need to be to benefit from eDiscovery technology.  In a recent case with one of my clients, the client had a fairly small collection – only about 4 GB.  But, when a judge ruled that they had to start conducting depositions in a week, they needed to review that data in a weekend.  Without the ability to cull the data and using OnDemand® to manage the linear review, they would not have been able to make that deadline.  So, they clearly benefited from the use of eDiscovery technology in that case.

But, if you’re not facing a tight deadline, how large does your collection need to be for the use of eDiscovery technology to provide benefits?

I recently conducted a webinar regarding the benefits of First Pass Review – aka Early Case Assessment, or a more accurate term (as George Socha points out regularly), Early Data Assessment.  One of the topics discussed in that webinar was the cost of review for each gigabyte (GB).  Extrapolated from an analysis conducted by Anne Kershaw a few years ago (and published in the Gartner report E-Discovery: Project Planning and Budgeting 2008-2011), here is a breakdown:

Estimated Cost to Review All Documents in a GB:

  • Pages per GB:                      75,000
  • Pages per Document:        4
  • Documents Per GB:            18,750
  • Review Rate:                        50 documents per hour
  • Total Review Hours:            375
  • Reviewer Billing Rate:        $50 per hour

Total Cost to Review Each GB:      $18,750

Notes: The number of pages per GB can vary widely.  Page per GB estimates tend to range from 50,000 to 100,000 pages per GB, so 75,000 pages (18,750 documents) seems an appropriate average.  50 documents reviewed per hour is considered to be a fast review rate and $50 per hour is considered to be a bargain price.  eDiscovery Daily provided an earlier estimate of $16,650 per GB based on assumptions of 20,000 documents per GB and 60 documents reviewed per hour – the assumptions may change somewhat, but, either way, the cost for attorney review of each GB could be expected to range from at least $16,000 to $18,000, possibly more.

Advanced culling and searching can enable you to cull out 70-80% of most collections as clearly non-responsive without having to conduct attorney review on those files.  If you have merely a 2 GB collection and assume the lowest review cost above of $16,000 per GB, the use of advanced culling and searching to cull out 70% of the collection can save $22,400 in attorney review costs.  Is that worth it?

So, what do you think?  Do you use eDiscovery technology for only the really large cases or ALL cases?   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.