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Depositions

Judge’s Ruling on Scope Under Rule 26 Brings a Mixed Bag of Motions Granted and Denied: eDiscovery Case Law

In TMJ Grp., LLC v. IMCMV Holdings, No. 17-4677 (E.D. La. April 6, 2018), Louisiana Magistrate Judge Janis van Meerveld ruled on Motions to Compel by both parties, both of which were granted in part and denied in part.

Case Background

The plaintiff, TMJ, alleged that it had been fraudulently induced to invest in two Margaritaville restaurants (one in the Mall of America and one in New Orleans) by the defendants. An interesting aspect of the discovery motions is TMJ’s allegation that it sought and obtained financing for the investment at issue in this lawsuit from FNBC Bank and that IMCMV altered financial figures in the financial statements so that FNBC would approve the financing after initially rejecting it.

IMCMV’s Motion to Compel

The first item at issue was the defendant’s motion to compel the redacted communications between FNBC and the plaintiff, which were ordered for in-camera review, as well as several depositions given after the discovery deadline. As a result, issues arose around scope of discovery under FRCP Rule 26.

The plaintiff submitted much of their document production right before or on the discovery deadline (around 3,700 pages) and as a result, the defendant said it didn’t have all the relevant documents available for the depositions where some FNBC documents were discussed, and because it did not have sufficient time to review those documents prior to the deposition, they argue that they “had an incomplete picture of the relationship, agreements, and documents, exchanged between FNBC and TMJ.”

The defendant also sought to compel the deposition of one or more former FNBC representatives, pointing out that the FNBC representatives are listed on both parties’ witness lists. However, because they did not have all of the FNBC documents prior to the discovery deadline, they initially decided not to depose FNBC. The late production of documents caused them to revisit this decision.

The plaintiff opposed the deposition of any FNBC representatives, claiming the request is untimely, because they identified FNBC personnel in its initial disclosures and earlier document production and that the defendant had long had sufficient information to determine whether to take such depositions. The plaintiff insisted it would be prejudiced if the depositions were allowed, given that trial was imminent.

TMJ’s Motion to Compel

The plaintiff’s motion to compel sought certain financial documents, including tax returns and schedules, financial statements, and accounting ledgers for all of the defendant’s other Margaritaville restaurants, insisting the documents were relevant, because the defendant’s financial forecasts were based on comparable IMCMV owned restaurants, which influenced their decision to invest.

The defendant claimed these financials were irrelevant and disproportional as the other restaurants are not a part of this litigation. The defendant explained that this data was already produced in Excel files which was considered by their expert.

The plaintiff also demanded responses to its interrogatories regarding the reasoning behind changes to financial statements made while the investments at issue here were being negotiated, alleging that the defendant altered them to make the investment appear more attractive to the plaintiff and FNBC. The plaintiff makes note that their identical responses to the three requests aren’t “boilerplate,” but that they meaningfully explain how changes were made by stating that “in preparing financial projections, [IMCMV] takes into account planned seating capacity, estimated revenue per seat per year, the financial results of other Margaritaville-themed restaurants, the location, market competitors, and the labor market.”

The plaintiff also sought text messages between the parties, pointing out that they frequently corresponded in this manner. The defendant responded that their former chief development officer left the company, and they had not been able to access his iPhone. The defendant requested passcodes from the former CDO, but those didn’t work. Another individual who also was no longer working for IMCMV, had custody of the phone in the interim, but he had reset the phone and added a new passcode. The defendant then contacted Apple and its carrier, AT&T, who both indicated that the passcode could not be bypassed without resetting the phone.

Judge’s Ruling

Regarding IMCMV’s motions, there was no real dispute that a deposition of an FNBC representative is within the scope of discovery. Judge van Meerveld ruled that “a second deposition of Motwani [an FNBC Bank representative] is appropriate here in light of the documents produced after his deposition. The scope of the deposition shall be limited to the documents produced after Motwani’s deposition, and any other documents or issues required to give context to, provide clarification of, to contrast with, or explain discrepancies with the documents produced after Motwani’s deposition. This could, therefore, permit reference to earlier produced documents.” Accordingly, an extension of the discovery deadline was provided, and the defendant “may proceed with a deposition of one FNBC representative and, if necessary due to that representative’s inability to provide complete answers, a second FNBC representative.”

In regard to the plaintiff’s motions, Judge van Meerwald agreed that “the financial documents for the other Margaritaville restaurants are not relevant or proportional to the needs of this case. TMJ already has the key performance indicators extracted from those financials for the purpose of creating the business cases and pro formas for the proposed investment. The relevance of the financial statements of the other restaurants is too tangential to justify the burden of production.” As to these documents, the motion to compel was denied.

As to the plaintiff’s demand that certain financial documents be produced in Excel rather than PDF format, the court found the burden to the defendant “too great to justify IMCMV undertaking that endeavor here. However, the Court has ordered the parties to work together to provide the documents in their native format. If this is unsuccessful, the parties may contact the chambers of the undersigned to set up a telephone conference to discuss.”

So, what do you think? Did the judge interpret the idea of scope under Rule 26 correctly?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Potential Topics for Your 30(b)(6) Witnesses: eDiscovery Best Practices

I was talking to a client the other day about having to prepare their 30(b)(6) witness for a case, so I thought I’d revisit this topic…

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6).

Rule 30(b)(6) enables a party to serve a deposition notice on the organization involved in the litigation rather than an individual. That notice identifies the topics to be covered in the deposition, and the organization being deposed must designate one or more people qualified to answer questions on the identified topics. While those designated to testify may not necessarily have day-to-day responsibility related to the identified topics, they must be educated enough in those issues to sufficiently address them during the testimony.

Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

Legal Hold: Perhaps the most common area of focus in a 30(b)(6) deposition is the legal hold process as the deposing party will want to find out if there is a possibility of spoliation of data, which could result in sanctions against your organization.  Issues to address include:

  • General description of the legal hold process including all details of that policy and specific steps that were taken in this case to implement the hold.
  • Timing of issuing the legal hold and to whom it was issued.
  • Substance of the legal hold communication (if the communication is not considered privileged).
  • Process for tracking and follow-up with the legal hold sources to ensure understanding and compliance with the hold process.
  • Whether there are any auto-delete processes in place in the organization and, if so, what steps were taken to disable them and when were those steps taken?

Collection: Logically, the next eDiscovery step discussed in the 30(b)(6) deposition is the process for collecting preserved data:

  • Method of collecting ESI for review, including whether the method preserved all relevant metadata intact.
  • Chain of custody tracking from origination to destination.
  • How the collection process was managed and conducted – i.e., was there custodian self-collection being performed and, if so, how tightly was that process managed by counsel.

Searching and Culling: Once the ESI is collected, the methods for conducting searches and culling the collection down for review must be discussed:

  • Methods used to cull the ESI prior to review (including de-duping, date range exclusion and other mechanisms, as well as the search criteria for inclusion or exclusion in review and how the search criteria was developed (including potential use of subject matter experts to flush out search terms).
  • Process for testing and refining the search terms used as well any testing or sampling conducted on ESI not retrieved.

Review: The 30(b)(6) witness(es) should be prepared to fully describe the review process, including:

  • Methods to conduct review of the ESI including review application(s) used and workflow associated with the review process.
  • Use of technology to assist with the review, such as clustering, predictive coding and near-duplicate identification.
  • Methodology for determining privileged ESI (this methodology may be important if the producing party may request to “claw back” any inadvertently produced privileged ESI – this order makes it easier to do that).
  • Personnel employed to conduct ESI review, including their qualifications, experience, and training.

Production: Information regarding the production process, including:

  • Methodology for organizing and verifying the production, including confirmation of file counts and spot QC checks of produced files for content.
  • The total volume of ESI collected, reviewed, and produced.

Depending on the specifics of the case and discovery efforts, there may be further topics to be addressed to ensure that the producing party has met its preservation and discovery obligations.

So, what do you think?  Have you had to prepare 30(b)(6) witnesses for deposition?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Calling First 30(b)(6) Witness a “Waste of Time”, Court Orders a Second Deposition: eDiscovery Case Law

In Rembert v. Cheverko et. al., No. 12-9196 (S.D.N.Y., Oct. 9, 2015), New York District Judge Katherine B. Forrest granted the plaintiff’s motion “in its entirety” to compel the defendants to provide a properly prepared 30(b)(6) witness to testify regarding the defendants’ preservation and production of emails, to provide copies of document retention/preservation notices issued and to reimburse plaintiff’s costs and fees associated with having to conduct an additional deposition.

Case Background

In this civil suit filed by an inmate in the Westchester County Department of Corrections system over failure to properly treat a fractured arm, the plaintiff sought documents including any email communications between prison staff about the plaintiff.  The defendants failed to respond to that request for over three months, at which time they simply stated that they were not in possession of any such communications.  At a conference two days later, when pressed, defendants’ counsel conceded that defendants had not performed any search for emails and committed to expeditiously search for electronic documents for their witnesses, but still failed to provide any additional emails, despite the fact that five defendants’ witnesses confirmed that they used email to communicate about their patients and that responsive documents about the plaintiff should exist.

The plaintiff issued a motion to compel, to which defense counsel responded by calling the allegations regarding email collection “reckless and, frankly, scurrilous.”  Nonetheless, counsel for defendants ultimately made a small production of several emails to plaintiff’s counsel just before a court conference in July, which the plaintiff’s counsel determined to be incomplete.  The Court then outlined several possible ways of proceeding to resolve this email issue including a 30(b)(6) deposition.  The defendant’s motion to strike the 30(b)(6) deposition was denied and the deposition proceeded on September 25.

Judge’s Ruling

With regard to the 30(b)(6) deposition that was conducted, Judge Forrest noted “it is clear from the transcript that the witness was not prepared to deal with even the most basic topics set forth in the notice. It was a pure waste of time.”  Continuing, she stated:

“The designated witness, Peter Gavin, the Director of Health Information, testified that he had met with defense counsel once, for “an hour, I think.”…This is in contrast to defense counsel’s representation in his response to this motion that he prepared Mr. Gavin over the course of two days….Someone’s recollection is incorrect. Mr. Gavin did not know the version of the email platform used, whether Correct Care maintains the emails on its own server or works with a third party to do that, whether the storage is cloud-based, whether there are any size constraints on the amount of email data that a user can retain, what deletion practices were employed automatically, periodically or specifically, he was unfamiliar with ways of archiving emails other than his own personal practice, whether emails and documents were stored on the hard drive of a user’s computer or on a network server, whether emails sent or received through cell-phones would go through a web-mail client, whether Correct Care backs-up email, etc.”

As a result, Judge Forrest granted the plaintiff’s motion, stating that “[a] properly prepared 30(b)(6) witness shall be made available not later than October 23, 2015. Counsel shall confer on the appropriate location to take the deposition. As plaintiff should not have to have made this motion given the Court’s prior rulings and warnings, defendants shall pay the costs plaintiff has incurred in bringing this motion including: reasonable attorney’s fees for attending the useless deposition of Mr. Gavin and bringing this motion, and court reporter fees for the deposition of Mr. Gavin. Such costs shall be paid to the Patterson Belknap firm within 30 days of this Order. Defendant shall also provide plaintiff and the Court with copies of any document retention/preservation notices issued in connection with this case and the recipients of such hold notice. Such production shall occur not later than October 16, 2015.”

So, what do you think?  Have you ever been involved in a case where a second 30(b)(6) witness had to be produced?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: eDiscovery Case Law

In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., No. 103-050 (S.D. Ga., Sept. 10, 2015), Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

Case Background

In its Third Set of Interrogatories to Defendants, the plaintiff requested that the defendant “[i]dentify every person who has knowledge regarding your document retention policies and procedures and your efforts to preserve and produce documents and information relevant to this litigation, and describe the subject matter of his or her knowledge.”  In response, the defendant identified three individuals, including one whom they described as having “general information” “regarding [the defendant’s] efforts to produce documents and information relevant to this litigation”.

At his deposition, that deponent expressed a lack of knowledge regarding the defendant’s document retention policies, so the plaintiff filed a Motion for Sanctions, arguing that the court should sanction the defendant’s identification of that deponent because he had no particularized information regarding the defendant’s efforts to produce documents “and certainly possesses no information that is different than any other of the dozens of other EHP employees whose computer was reviewed by EHP’s IT department in connection with this litigation.”  In response, the defendant pointed out that it had never identified that deponent as specifically knowledgeable about document retention policies, but that it did identify him has having knowledge regarding the document production (regarding which he adequately testified about during his deposition).

Judge’s Ruling

Judge Hall remarked initially that “At first blush, Whitesell’s motion for sanctions appears well-grounded. From Whitesell’s perspective, Mr. Edwards’s deposition seemed needless and unproductive.”  However, “upon a more contemplative look at the issue”, Judge Hall stated that he “cannot reach the conclusion that EHP violated its certification of discovery responses under the circumstances.”

Noting that the “interrogatory generally asks for persons with knowledge about efforts to produce documents and information relevant to the litigation, but then Whitesell complains that the witness does not have particularized knowledge of all areas pertinent to that subject matter”, Judge Hall stated that “the Court is unimpressed by Whitesell’s effort to confer on the matter…The duty-to-confer is not an empty formality.”

As a result, Judge Hall denied that motion stating that “the Court’s decision on this matter is influenced by the fact that there is now a mechanism in place, the monthly discovery hearings, to address the perceived gaps and failings in discovery almost immediately as they arise.”

So, what do you think?  Should more courts hold monthly discovery hearings to minimize disputes?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Orders Deposition of Expert to Evaluate Issues Resulting from Plaintiff’s Deletion of ESI: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Apr. 24, 2015), Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Case Background

Although the plaintiff filed suit in this antitrust case in December 2012, it did not implement a formal litigation hold until after February 27, 2014, when this Court ordered one to be implemented in response to the defendant’s motion. Beyond not implementing a formal hold, the plaintiff’s counsel acknowledged that its document and electronically stored information (“ESI”) search efforts were inadequate. Its US lawyers never traveled to Colombia (where the plaintiff is based) to meet with its information technology team (or other executives) to discuss how relevant or responsive ESI would be located, and it did not retain an ESI retrieval consultant to help implement a litigation hold or to search for relevant ESI and documents. In addition, some critical executives and employees conducted their own searches for ESI and documents without ever seeing the defendant’s document request or without receiving a list of search terms from its counsel.

The plaintiff ultimately agreed to a forensic analysis by an outside vendor specializing in ESI retrieval and the Court appointed a neutral computer forensic expert to analyze the plaintiff’s ESI and later appointed a Special Master to assist the Court with ESI issues. Completed in May 2014,the report, which was “thousands of pages long” from the forensic expert, showed that “nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted” and “[i]t appears that approximately 5,700 of these files contain an ESI search term in their title, which indicates that they could have been subject to production in the forensic analysis if they had not been deleted.”

The defendant filed a motion to conduct the deposition of the neutral third-party expert to explain the report and the plaintiff filed an opposing response.

Judge’s Ruling

You’ve got to love an opinion that begins by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King. Judge Goodman began his analysis by referencing Federal Rule of Evidence 706, noting that it “governs court-appointed expert witnesses” and that “Subsection 706(b)(2) provides that such witnesses ‘may be deposed by any party.’” With regard to the plaintiff’s objection that such depositions are not very common, he stated that “regardless of whether depositions of court-appointed neutral experts on computer forensic issues are very common, used occasionally or are actually rare and atypical, they are certainly permissible. As noted, Federal Rule Evidence 706(b)(2) expressly provides for them. Moreover, there are published opinions discussing these types of depositions without critical comment. Perhaps more importantly, district courts have ‘broad discretion over the management of pre-trial activities, including discovery and scheduling.’”

Judge Goodman also rejected the plaintiff’s objection about the purported tardiness of the motion, noting that the forensic analysis took more than a year and was not completed until the first week of April 2015. He stated that “the deposition would undoubtedly be of great help to the Court. If I were to deny the motion, as Procaps urges, then I would be undermining my own ability to grapple with the myriad, thorny issues which will surely arise in the next several weeks or months.

Therefore, the Undersigned hopes to be able to ‘get by with a little help from my [ESI neutral expert] friends’ and is ‘gonna try [to comprehensively and correctly assess the to-be-submitted ESI issues] with a little help from my friends.’ Granting Patheon’s motion will enable the Undersigned to accomplish that goal; denying it would render that specific goal unattainable (and make the ESI spoliation/sanctions/trial evidence/bad faith/significance of missing evidence/prejudice evaluation more difficult).”

As a result, Judge Goodman ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master and laid out the procedures for the deposition in his order.

So, what do you think? Was the judge right in ordering the deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

This isn’t the first time we’ve covered this case, click here for a previous ruling we covered back in May 2014.

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

eDiscovery Case Law: Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege
 

In Jacob v. Duane Reade, Inc., 11 Civ. 0160 (JMO) (THK), Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner.  According to Defendants' counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

The Plaintiffs in this matter are Assistant Store Managers pursuing a collective action for overtime wages, under the Fair Labor Standards Act ("FLSA"), against the Defendant, Duane Reade.  The email that was inadvertently produced (on November 8, 2011 and subsequently used in deposition) related to a meeting among several individuals within Human Resources, including an in-house attorney at Duane Reade (assumed to be Julie Ko). The defendants discovered the inadvertent production on January 17 of this year when Duane Reade’s HR Manager (an attendee at the meeting) was noticed for deposition.  The defendants argued that the email was inadvertently produced because it was neither from nor to an attorney, and only included advice received at a meeting from an in-house attorney, identified in the email only by the first name “Julie.”

With regard to whether the email was privileged, the court examined the email and found that the first half, where Ko received information from business managers and, in her role as legal counsel, gave legal advice on the requirements of the FLSA, was privileged.  However, the second half of the email, consisting of proposals that came out of the meeting, to get the Store Managers and Assistant Store Managers to view and treat the ASM's as managers, contained no legal advice and, therefore, was not privileged.

As to whether the Defendant’s waived attorney-client privilege when inadvertently producing the email, the Court referenced a summary of the law in this subject provided by Judge Shira Scheindlin, as follows:

“Although the federal courts have differed as to the legal consequences of a party's inadvertent disclosure of privileged information, the general consensus in this district is that the disclosing party may demonstrate, in appropriate circumstances, that such production does not constitute a waiver of the privilege or work-product immunity and that it is entitled to the return of the mistakenly produced documents. In determining whether an inadvertent disclosure waives privilege, courts in the Second Circuit have adopted a middle of the road approach. Under this flexible test, courts are called on to balance the following factors: (1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) "the scope of the discovery;" (4) the extent of the disclosure; and (5) an over[arching] issue of fairness.”

The Court ruled that the production of the email was inadvertent and that Duane Reade had employed reasonable precautions to prevent inadvertent disclosures (such as drafting lists of attorney names, employing search filters and quality control reviews). However, given the over two month time frame for the Defendants to request return of the email, the Court determined that the privilege was waived because the Defendants did not act “promptly to rectify the disclosure of the privileged email.”

So, what do you think?  Was waiver of privilege fair for this document?  Or should the Defendants have been able to claw it back?  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.

eDiscovery Best Practices: Preparing Your 30(b)(6) Witnesses
 

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6). This rule enables a party to serve a deposition notice on the entity involved in the litigation rather than an individual. The notice identifies the topics to be covered in the deposition, and the entity being deposed must designate one or more people qualified to answer questions on the identified topics.

While those designated to testify may not necessarily have day-to-day responsibility related to the identified topics, they must be educated enough in those issues to sufficiently address them during the testimony. Serving a deposition notice on the entity under Federal Rule 30(b)(6) saves the deposing party from having to identify specific individual(s) to depose while still enabling the topics to be fully explored in a single deposition.

Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

Legal Hold Process: Perhaps the most common area of focus in a 30(b)(6) deposition is the legal hold process as spoliation of data can occur when the legal hold process is unsound and data spoliation is the most common cause of sanctions resulting from the eDiscovery process.  Issues to address include:

  • General description of the legal hold process including all details of that policy and specific steps that were taken in this case to effectuate a hold.
  • Timing of issuing the legal hold and to whom it was issued.
  • Substance of the legal hold communication (if the communication is not considered privileged).
  • Process for selecting sources for legal hold, identification of sources that were eliminated from legal hold, and a description of the rationale behind those decisions.
  • Tracking and follow-up with the legal hold sources to ensure understanding and compliance with the hold process.
  • Whether there are any processes in place in the company to automatically delete data and, if so, what steps were taken to disable them and when were those steps taken?

Collection Process: Logically, the next eDiscovery step discussed in the 30(b)(6) deposition is the process for collecting preserved data:

  • Method of collecting ESI for review, including whether the method preserved all relevant metadata intact.
  • Chain of custody tracking from origination to destination.

Searching and Culling: Once the ESI is collected, the methods for conducting searches and culling the collection down for review must be discussed:

  • Method used to cull the ESI prior to review, including the tools used, the search criteria for inclusion in review and how the search criteria was developed (including potential use of subject matter experts to flush out search terms).
  • Process for testing and refining search terms used.

Review Process: The 30(b)(6) witness(es) should be prepared to fully describe the review process, including:

  • Methods to conduct review of the ESI including review application(s) used and workflow associated with the review process.
  • Use of technology to assist with the review, such as clustering, predictive coding, duplicate and near-duplicate identification.
  • To the extent the process can be described, methodology for identifying and documenting privileged ESI on the privilege log (this methodology may be important if the producing party may request to “claw back” any inadvertently produced privileged ESI).
  • Personnel employed to conduct ESI review, including their qualifications, experience, and training.

Production Process: Information regarding the production process, including:

  • Methodology for organizing and verifying the production, including confirmation of file counts and spot QC checks of produced files for content.
  • The total volume of ESI collected, reviewed, and produced.

Depending on the specifics of the case and discovery efforts, there may be further topics to be addressed to ensure that the producing party has met its preservation and discovery obligations.

So, what do you think?  Have you had to prepare 30(b)(6) witnesses for deposition?  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.

eDiscovery Trends: John Simek
 

This is the third of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is John Simek. John is the Vice President of Sensei Enterprises, a computer forensics firm in Fairfax, Va, where he has worked since 1997. He is an EnCase Certified Examiner and is a nationally known testifying expert in computer forensic issues. Together with his wife, Sharon Nelson, John has become a frequent speaker on eDiscovery topics and digital forensic issues. We have also interviewed Sharon, who serves as Sensei’s President, for this series, and her interview will appear this coming Wednesday.

You have been a forensic examiner for a long time. How has the business changed over that time? How much does the rate of change in computer technology make your job difficult? Has social media and mobile technology changed the nature of your work and the evidence in play?

Certainly the technology changes present a challenge for any forensic examiner. We are constantly investing in training and tools to deal with the changing landscape. Social media investigations and mobile devices are explosive forms of evidence for many of our cases. The constant changes in smartphones means we must have dozens of tools to extract data from iPads, Androids, BlackBerrys, iPhones, tablets and other mobile devices. Access to social media data varies as well. Some is readily available in the public areas, some may reside on the actual computer used to access the social media sites and some data may be held by the providers themselves, where the user has no clue it is being collected.

There have been several cases of law firms and EDD providers suing each other of late. Why is there this seeming rise in conflict and how does it affect relationships in the industry?

I’ve only seen two such cases and they get ugly really quick. I think the primary reason is lack of transparency and adequate communication. The client should always know what the anticipated costs and effort will be. Should scope change then a new estimate needs to be communicated. I think all too often the EDD providers launch out of the gate and the costs spiral out of control. Obviously, if you are one of those providers that ended up in court over fees or even inadequate or improper processing of ESI, your reputation will be forever spoiled.

There are a lot of certifications a forensic examiner can obtain. What is the value of certification? How should buyers of EDD services evaluate their forensic examiners?

Certifications are a good starting point, although I think they have lost their value over the last several years. Perhaps the tests are getting easier, but I’m seeing folks with forensic certifications that shouldn’t be trusted with a mouse in their hand. Don’t just look to forensic certifications either. Other technology (network, operating system, database, etc.) certifications are also valuable. Check CVs. Do they speak, write and have previous experiences testifying? One of the best methods of evaluation is referrals. Did they do a quality job? Were they on time? Did the costs fall within budget?

You’ve done a lot of work in family law cases. In cases where emotions are running high, how do you counsel clients? Is there a way to talk to people about proportionality when they are angry?

You’ve hit the nail on the head. There is very little logic in family law cases, especially when emotions are running high. I’ve lost count of the number of times we’ve told clients NOT to spend their money on continuing or even starting a forensic analysis. Some listen and some don’t. The exception is where there are issues pertaining to the welfare of any children. We had one case where dad was into BDSM and exhibiting similar behavior towards the children. Mom had no job and was extremely brutalized from the abuse over the years. We completed that case pro bono as it was the right thing to do. Dad lost custody and ordered supervised visitation only.

There has been a lot of hype about EDD services for small firms. In your experience, is this becoming a reality? Can small and solo firms compete with large firms for more EDD cases?

Electronic evidence plays a part in more and more cases. There is a crying need for better tools and methods to review ESI in the smaller cases. Thankfully, some vendors are listening. Products like Digital Warroom and Nextpoint’s products are very affordable for the smaller cases and don’t require a large investment by the solo or small firm attorney. These are hosted solutions, which means you are using the cloud. Large firms are also using hosted solutions, but may use other vendor products depending on the type of data (e.g. foreign language) and/or volume.

You testify in a lot of cases as an expert witness. What are the reasons your services might be needed in this area? What are common reasons that forensic evidence is being challenged, and how can legal teams avoid being challenged?

The good news is that less than 10% of our cases end up going to trial. As we say in the forensic world, “The truth is the truth.” Once we have had a chance to analyze the evidence and report the findings, there are rarely any challenges. That’s what a forensic exam is all about- being repeatable. The opposing party’s examiner better find the same results. The challenge may come from the interpretation of the results. This is where experience and knowledge of the expert comes into play. Many of the forensic examiners today have never used a computer without a graphical interface. Remember the Casey Anthony case? I cringed when I heard the prosecution testimony about the activity surrounding the Internet searches. It failed the smell test in my mind, which ended up being true since the expert later admitted there was a problem with the software that was used.

Would you recommend a similar career path to young technologists? What do you like about being a forensic examiner?

Some universities are now offering degrees in Digital Forensics or some similar name. I’m not sure I would go the route of computer forensics as a baseline. I’m seeing more activity in what I would call digital investigations. This includes network forensics and dealing with cases such as data breaches. We are doing more and more of these types of exams. It’s sort of like following the data trail. Probably the single best thing about being a forensic examiner is getting to the truth. Since we also do criminal defense work, there are many times that we’ve had to call the attorney and tell them that their client needs a new story.

Thanks, John, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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