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eDiscovery

eDiscovery Trends: iDiscovery
 

Yesterday was a day that tech enthusiasts and ordinary people alike had circled on their calendar since it was confirmed as the date of Apple’s press event to unveil the iPhone5. Apple proudly boasted that it had sold 400 million iOS devices by the end of June of this year, which can in part be attributed to the smoothly operating software running on their devices. Advances in mobile high tech have made these portable computers accessible and their presence inescapable even among late adopters. What is simple and intuitive from a user standpoint, however, can prove challenging and fickle to a computer forensics expert.

Richard Lutkus of Law Technology News writes that there are many factors that must be considered when investigating an iOS device, such as “device model, generation, storage capacity, iOS version, iCloud activation status, and passcode protection status. One example of the importance of these identification questions is iCloud, which is Apple's information syncing service. The presence and status of this service may be important because information found on an iOS device could be automatically synced to one or several computers or other iOS devices.”

Lutkus points out that mobile device forensics requires skills that not all computer forensic professionals possess. For example, an important part of the preservation of a mobile device is isolation from all data networks to ensure no changes occur on the device, such as a remote wipe.  A few ways of isolating the hardware include a signal blocking “Faraday” bag, removing the SIM card, or enabling airplane mode. From there, the two methods of imaging an iOS device are logical capture and physical imaging. Lutkus explains, “Logical capture is the preservation of all active (no file fragments or other ephemera) files on a device. This method is similar to an iTunes backup in that it saves the same types of data as iTunes backups. In contrast, physical imaging captures everything that a logical capture does, but includes deleted file fragments, temporary cache files, and other ephemera. Generally, physical imaging is more desirable if it is technically possible. Though slower, this approach is widely accepted, is compatible with most forensic tools, and preserves all data on a device.”

There are other challenges in preserving the data in an iOS device, especially hardware newer than the iPhone 4S and Ipad 3, which include encryption of even unallocated space of memory when a passcode has been used. The quality of data one might expect to find after imaging and decrypting could include: “contacts, call logs, speed dials, voicemail, Bluetooth devices, screenshots, bookmarks, web clips, calendars, messages, email, attachments, internet history, internet cookies, photos, audio recordings, notes, videos, music, app list, keystroke information, GPS coordinates, wi-fi network memberships, user names and passwords, map searches, app-specific data, cell tower information, serial number, device name, device IMEI (international mobile equipment identify number), device serial number, version, and generation, etc.” This type of information can be crucial in the first 7 to 10 days after litigation hits, as we have previously covered here. These devices seem to know so much about us that companies like Apple have had to release statements to state they are not recording and storing your location in response to allegations of privacy invasion. With the number of expected sales of the iPhone5 potentially adding between a quarter and a half percent to America’s GDP, there will be millions more iPhone’s will making their ways into the hands of consumers and eventually, no doubt, into the hands of mobile forensic experts.

So, what do you think? Have mobile computing devices, such as smartphones and tablets, been material to your eDiscovery work? Have other mobile operating systems, such as Blackberry or Android, presented challenges that differ from iOS? 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: Repairing a Corrupted Outlook PST File
 

We like to believe that there will never be any problems with the data that we preserve, collect and process for eDiscovery purposes.  Sometimes, however, critical data may be difficult or impossible to use.  Perhaps key files are password protected from being opened and the only way to open them is to “crack” the password.  Or, perhaps a key file may be corrupted.  If that file is an Outlook Personal Storage Table (PST) file, that file corruption could literally make tens of thousands of documents unavailable for discovery unless the file can be repaired.

I recently had a case where 40% of the collection was contained in 2 corrupt Outlook PST files.  Had we not been able to repair those files, we would have been unable to access nearly half of the collection that needed to be reviewed for responsiveness in the case.

Fortunately, there is a repair tool for Outlook designed to repair corrupted PST files.  It’s called SCANPST.EXE.  It’s an official repair tool that is included in Office 2010 (as well as Office 2007 before it).  As a very useful utility, you might think that SCANPST would be located in the Microsoft Office 2010 Tools folder within the Microsoft Office folder in Program files.  But, you’d be wrong.  Instead, you’ll have to open Windows Explorer and navigate to the C:Program FilesMicrosoft OfficeOffice14 folder (for Office 2010, at least) to find the SCANPST.EXE utility.

Double-click this file to open Microsoft Outlook Inbox Repair Tool.  The utility will prompt for the path and name of the PST file (with a Browse button to browse to the corrupted PST file).  There is also an Options button to enable you to log activity to a new log file, append to an existing log file or choose not to write to a log file.  Before you start, you’ll need to close Outlook and all mail-enabled applications. 

Once ready, press the Start button and the application will begin checking for errors. When the process is complete, it should indicate that it found errors on the corrupted PST file, along with a count of folders and items found in the file.  The utility will also provide a check box to make a backup of the scanned file before repairing.  ALWAYS make a backup – you never know what might happen during the repair process.  Click the Repair button when ready and the utility will hopefully repair the corrupted PST file.

If SCANPST.EXE fails to repair the file, then there are some third party utilities available that may succeed where SCANPST failed.  If all else fails, you can hire a data recovery expert, but that can get very expensive.  Hopefully, you don’t have to resort to that.

By repairing the PST file, you are technically changing the file, so if the PST file is discoverable, it will probably be necessary to disclose the corruption to opposing counsel and the intent to attempt to repair the file to avoid potential spoliation claims.

So, what do you think?  Have you encountered corrupted PST files in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Social Media Is No Different than eMail for Discovery Purposes
 

In Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012), Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

In this employment discrimination case, the defendants sought discovery from the plaintiff, including “all of Robinson's email and text message communications with current and former Jones Lang employees” and, most notably “all social media content involving Robinson since July 1, 2008, including photographs, videos, and blogs, as well as Facebook, linkedIn, and MySpace content that reveals or relates to Robinson's. "emotion, feeling, or mental state," to "events that could be reasonably expected to produce a significant emotion, feeling, or mental state," or to allegations in Robinson's complaint”.

In rendering his decision, Judge Papak referenced “[t]he most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress” (E.E. O. C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010)).  In that case, Judge Papak noted that “the court recognized that social media can provide information inconsistent with a plaintiffs allegation that defendant's conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff s allegations of the severity of that distress.”

With the principles of the Simply Storage case in mind, Judge Papak ordered the plaintiff to produce:

“(I) any:

(a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff's own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to:

(a) any significant emotion, feeling, or mental state allegedly caused by defendant's conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant's conduct.”

Understanding the difficulty of establishing an appropriate level of discovery, Judge Papak stated “As Simply Storage recognized, it is impossible for the court to define the limits of discover in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production…Nevertheless, the court expects counsel to determine what information falls within the scope of this court's order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what "has and has not been produced and can challenge the production if it believes the production falls short of the requirements of this order."…Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiffs deposition or other discovery.”

So, what do you think?  Should all media be handled the same in discovery, or should there be differences?  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 Case Law: Google Awarded $1 Million from Oracle, But Denied Discovery Costs
 

As noted in SiliconBeat and ARN, Judge William Alsup ordered Oracle on Tuesday to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software.  However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

Claims Against Google Dismissed Despite Inadvertent Disclosure

As you may recall, claims against Google that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language were dismissed by Judge Alsup back on May 31.  The claims were dismissed despite a significant inadvertent disclosure of information during discovery by Google, where drafts of a privileged email were not caught by Google’s search technology since they didn’t include the words “Attorney Work Product”, nor were they yet addressed to in-house counsel.  Judge Alsup ruled late last year that the draft emails were not privileged and the Federal Circuit court upheld that ruling.  However, these rulings did not ultimately cost Google as Oracle’s claims were dismissed.  As Judge Alsup noted, “Oracle initially sought six billion dollars in damages and injunctive relief but recovered nothing after nearly two years of litigation and six weeks of trial.”  Oracle plans to appeal.

Google Seeks Recovery of Costs

As the prevailing party, Google was able to seek recovery of costs and did so, seeking nearly $4 million from Oracle.  As noted above, Judge Alsup awarded Google $1 million as reimbursement for Google’s fees for a court-appointed expert.  However, Judge Alsup rejected Google's request that Oracle also pay $2.9 million for discovery-related costs, calling the search giant's arguments "unpersuasive".

“The problem with Google's e-discovery bill of costs is that many of [the] item-line descriptions seemingly bill for 'intellectual effort' such as organizing, searching, and analyzing the discovery documents," Judge Alsup stated in the ruling. "Most egregious are attempts to bill costs for 'conferencing,' 'prepare for and participate in kickoff call,' and communications with co-workers, other vendors, and clients. These are non-taxable intellectual efforts.”

So, what do you think?  Should Google have been reimbursed more?  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: Nominate Your Favorite Blog by Tomorrow!
 

With back to back weeks of political party conventions leading up to the elections in November, nominations are in the forefront of the minds of many Americans these days (at least those not watching the Giants and Cowboys kicking off the NFL season!).  It’s an important time for our country.  While not quite on a par with the presidential nomination, ABA Journal is currently asking for nominations for the best 100 legal blawgs, er, blogs.

On their Blawg 100 Amici page, you can complete the form to identify yourself, your company or law school, your city and email address, the URL of the blog you wish to nominate and a brief (up to 500 characters) description as to why you’re a fan of the “blawg”.  You’re also asked whether you know the “blawgger” personally (and admonished to “be honest”), whether there are any specific practice areas you’d like to see represented in the “Blawg 100” and whether ABA Journal can use your name and comment in their coverage.  You can nominate more than one “blawg”.

ABA Journal notes that they discourage submissions from:

  • “Blawggers” who nominate their own “blawgs” or “blawgs” to which they have previously contributed posts.
  • Wives and husbands who nominate their spouses’ “blawgs”.
  • Employees of law firms who nominate “blawgs” written by their co-workers.
  • Public relations professionals in the employ of lawyers or law firms who nominate their clients’ “blawgs”.
  • Pairs of “blawggers” who have clearly entered into a gentlemen’s agreement to nominate each other.

Now, you’re probably expecting a pitch to nominate our blog, eDiscoveryDaily, on the page.  Certainly, if you would like to do so, we won’t stop you!  😉

However, we’ll take this opportunity to recognize several of the excellent blogs out there that cover various eDiscovery topics.  Here are some of the best (in no particular order):

If I missed any eDiscovery blogs out there, I apologize (I’m somewhat distracted, Michael Boley just picked off Romo in the Giants/Cowboys game).  For compilations of eDiscovery news and analysis, I’d also like to recognize Law Technology News, PinHawk Law Technology Daily Digest and Unfiltered Orange as excellent sources for eDiscovery information.

Our hats are off to all of those who provide eDiscovery news and analysis to the industry!  If you would like to nominate any of the blogs (including, of course, eDiscoveryDaily), click here.  Deadline is tomorrow, September 7.

So, what do you think?  Do you have a favorite eDiscovery blog or source of information?  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 Case Law: Citing Rule 26(g), Court Orders Plaintiff’s Counsel to Disclose Search Strategy
 

Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, No. CIV 11-0884 JB/WDS, 2012 U.S. Dist. (D. New Mexico, Aug 9, 2012), where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Motion to Compel

Last October, S2 Automation filed a Complaint against Micron Technology for breach of contract, conversion, misrepresentation and unjust enrichment.  After various objections to Micron’s requests for production by S2, Micron filed a Motion to Compel, indicating that S2 Automation “has utterly failed to meet its obligation to meaningfully respond to discovery in this matter” and requested, among other things that the court order S2 Automation to identify the search strategy it used to provide responsive documents to its requests for production.

A sworn declaration from one of Micron’s attorneys indicated that, during a discovery conference, it became apparent that S2′s counsel may not have worked with their client sufficiently during the discovery process and, as a result, may have failed to provide a number of responsive documents:

“During that call, we discussed the April 25 deficiency letter and Micron’s request that S2 supplement its production. Counsel for S2 stated that he had not yet reviewed the letter in detail. We then discussed the format for production of S2′s documents. Counsel stated that he was not aware that S2 had separated attachments from e-mails, that he had delegated the process of gathering documents to S2, and that he was generally unaware of the manner in which S2 had provided the documents. Counsel also stated that he was unsure what protocol S2 followed to locate responsive documents.”

S2’s Obligations under Federal Rule 26(g)

Micron asserted in its motion to compel that S2′s counsel violated their obligations under Federal Rule 26(g), stating “it is not proper for counsel to sit back and allow the client to search for documents without active direction and participation by counsel; to the contrary, counsel must be actively involved in the search to ensure that all responsive documents have been located, preserved, and produced.”  In response, S2′s attorneys denied that they had failed to supervise the discovery process, indicating that they had “met with the client on multiple occasions during the discovery process in order to organize and respond to discovery.”

Judge Browning’s Ruling

Noting that Rule 26(g) imposes an obligation on the attorney who signs the discovery response to conduct “a reasonable inquiry into the facts and law supporting the pleading”, Judge Browning stated:

“Accordingly, it can become necessary to evaluate whether an attorney complied with his rule 26(g) obligations and to evaluate the strategy an attorney used to provide responsive discovery, with relevant circumstances including: (i) “[t]he number and complexity of the issues”; (ii) “[t]he location, nature, number and availability of potentially relevant witnesses or documents”; (iii) “[t]he extent of past working relationships between the attorney and the client, particularly in related or similar litigation”; and (iv) “[t]he time available to conduct an investigation.” 6 J. Moore, Moore’s Federal Practice, § 26.154[2][a], at 26-615 (3d ed. 2012). Consequently, the analysis in which courts must engage to evaluate whether a party’s discovery responses were adequate is often a fact-intensive inquiry that requires evaluation of the procedures the producing party adopted during discovery.”

As a result, Judge Browning ruled that S2 Automation would have to provide to Micron “its search strategy for identifying pertinent documents, including the procedures it used and how it interacted with its counsel to facilitate the production process.”

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

eDiscovery Daily will return with a new post on Tuesday after the Labor Day holiday.

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 Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

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: Charges Against Suspect Dismissed Partially Over Storage of Two Terabytes
 

Law Technology News had an interesting article regarding a DEA criminal case written by Ryan J. Foley (Two Terabytes Too Much Evidence for DEA).  Here’s the scenario.

Fugitive Miami doctor Armando Angulo was indicted in 2007 in a multimillion dollar scheme that involved selling prescription drugs to patients who were never examined or even interviewed by a physician.  He fled to his native Panama in 2004 after the Drug Enforcement Administration began its investigation of him.  While the US does have an extradition treaty with Panama, Panamanian authorities say they do not extradite their own citizens.

The case led to conviction of 26 defendants (including 19 doctors) and recovery of $7 million, but Angulo remains at large.  Information related to the case took up two terabytes of hard drive space – 5 percent of the DEA's worldwide electronic storage (which would mean the DEA only has 40 total terabytes worldwide?).  Other case information also included “several hundred boxes of paper containing 440,000 documents, plus dozens of computers, servers, and other bulky items.”

As a result, noting that “[c]ontinued storage of these materials is difficult and expensive”, Stephanie Rose, the U.S. attorney for northern Iowa, dropped the charges, calling the task "an economic and practical hardship".  U.S. District Judge Linda Reade dismissed the case with prejudice; therefore, it cannot be refiled.  However, Angulo is still wanted for separate Medicaid fraud and narcotics charges in Florida, so he’s not completely “off the hook” with regard to criminal investigations.

Does it seem unbelievable that the DEA is walking away from a case for which storage to support it could be purchased from Best Buy for less than $100?  It’s probably safe to assume that the requirements for storage of criminal evidence must meet certain requirements for security and chain of custody that makes the cost for two terabytes in the DEA server environment considerably more expensive than that.  In the LTN article, University of Iowa computer scientist Douglas Jones notes that it’s possible that the DEA’s server is small and needs replacement, but that doing so while maintaining integrity of the data may be costly and risky.

I have not worked for a government agency supporting prosecution of criminal cases, but I would imagine that records management and preservation requirements are at a completely different level than those of many organizations managing data to support their civil litigation docket.  Criminal cases can go on for years or even decades through appeals, so I would think it’s a unique challenge for these agencies.  So, it surprises me that the DEA only has 40 terabytes of storage worldwide.

So, what do you think?  Do you work for a government agency prosecuting criminal cases?  How does your organization handle records management and preservation?  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 Case Law: Apple Wins 1.05 Billion Dollar Verdict Against Samsung
 

Yes, that’s billion, with a “b”.

A jury of nine on Friday found that Samsung infringed all but one of the seven patents at issue in a high-stakes court battle between Apple Inc. and Samsung Electronics Co. The patent that they determined hadn’t infringed was a patent covering the physical design of the iPad. The jurors found all seven of Apple's patents valid—despite Samsung's attempts to have them thrown out. They also determined that Apple didn't violate any of the five patents Samsung asserted in the case.

Apple had been requesting $2.5 billion in damages.  While the award was much less than that, it was still larger than Samsung’s estimates and is among the largest intellectual-property awards on record.  Trial Judge Lucy Koh could also triple the damage award because the jury determined Samsung had acted willfully.

Interviewed after the trial, some of the jurors cited video testimony from Samsung executives and internal emails as key to the verdict.  Jury foreman Velvin Hogan indicated that video testimony from Samsung executives made it "absolutely" clear the infringement was done on purpose.  Another juror, Manuel Ilagan, said , "The e-mails that went back and forth from Samsung execs about the Apple features that they should incorporate into their devices was pretty damning to me."

The verdict was returned Friday afternoon after 22 hours of deliberation, despite the fact that the verdict form contained as many as 700 points the jury (including charges brought against different subsidiaries of the two companies addressing multiple patents and numerous products).

Role of Adverse Inference Sanction

As noted on this blog just a few days ago, Samsung received an adverse inference instruction from California Magistrate Judge Paul S. Grewal just prior to the start of trial as failure to turn “off” the auto-delete function in Samsung’s proprietary “mySingle” email system resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.  As a result, Judge Grewal ordered instructions to the jury to indicate that Samsung had failed to preserve evidence and that evidence could be presumed relevant and favorable to Apple.

However, after Samsung accused Apple to have also destroyed and tampered with evidence that could have benefited Samsung in the trial, Judge Lucy Koh decided to modify the “adverse inference” verdict issued for the jury to include instructions that Apple had also failed to preserve evidence.  Therefore, it appears as though the adverse inference instruction was neutralized and did not have a significant impact in the verdict; evidently, enough damning evidence was discovered that doomed Samsung in this case.

Samsung, of course, is expected to appeal.

So, what do you think?  Will this verdict impact discovery in future intellectual property 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.

eDiscovery Case Law: No Kleen Sweep for Technology Assisted Review
 

For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered.  Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America.  However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Background and Debate Regarding Search Approach

On February 21, the plaintiffs asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as "content-based advanced analytics," or CBAA) in their production of documents for discovery purposes.

In their filing, the plaintiffs claimed that “[t]he large disparity between the effectiveness of [the computer-assisted coding] methodology and Boolean keyword search methodology demonstrates that Defendants cannot establish that their proposed [keyword] search methodology is reasonable and adequate as they are required.”  Citing studies conducted between 1994 and 2011 claimed to demonstrate the superiority of computer-assisted review over keyword approaches, the plaintiffs claimed that computer-assisted coding retrieved for production “70 percent (worst case) of responsive documents rather than no more than 24 percent (best case) for Defendants’ Boolean, keyword search.”

In their response, the defendants contended that the plaintiffs "provided no legitimate reason that this Court should deviate here from reliable, recognized, and established discovery practices" in favor of their "unproven" CBAA methods. The defendants also emphasized that they have "tested, independently validated, and implemented a search term methodology that is wholly consistent with the case law around the nation and that more than satisfies the ESI production guidelines endorsed by the Seventh Circuit and the Sedona Conference." Having (according to their briefing) already produced more than one million pages of documents using their search methods, the defendants conveyed outrage that the plaintiffs would ask the court to "establish a new and radically different ESI standard for cases in this District."

Stipulation and Order

After “a substantial number of written submissions and oral presentations to the Court” regarding the search technology issue, “in order to narrow the issues, the parties have reached an agreement that will obviate the need for additional evidentiary hearings on the issue of the technology to be used to search for documents responsive to the First Requests.”  That agreement was memorialized this week in the Stipulation and Order Relating to ESI Search (link to stipulation courtesy of Law.com).  As part of that agreement, the plaintiffs have withdrawn their demand that the defendants apply CBAA to the first production request (referred to in the stipulation as the “First Request Corpus”). 

As for productions beyond the First Request Corpus, the plaintiffs also agreed not to “argue or contend” that the defendants should be required to CBAA or “predictive coding” with respect to any requests for production served on any defendant prior to October 1, 2013.  As for requests for production served after October 1, 2013, it was agreed that the parties would “meet and confer regarding the appropriate search methodology to be used for such newly collected documents”, with the ability for either party to file a motion if they can’t agree.  So, there will be no TAR-based approach in the Kleen case, at least until next October.

So, what do you think?  Does this signal a difficulty in obtaining approval for TAR-based approaches?  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.