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Electronic Discovery

Government Attorneys Are More Confident about eDiscovery But Feel Less Prepared to Discuss It: eDiscovery Trends

In April 2014, we covered the seventh annual benchmarking study of eDiscovery Practices for Government Agencies conducted by Deloitte and covered the eighth annual study last December.  Apparently, Deloitte operates on an eight month year – their Ninth Annual Benchmarking Study of Electronic Discovery Practices for Government Agencies is available now.

This time, one hundred twenty four (149) professionals (up from 124 last time) across multiple government agencies participated in the survey, with attorneys comprising 60% of the respondents (down from 69% last time).  Here are some key findings in the report:

  • Use of predictive coding is on the rise again as 27% of respondents indicated having used predictive coding in any of their cases, up from 23% last year and 17% in the April 2014 results.
  • Collection from mobile devices in eDiscovery is sharply on the rise as 54% of respondents have collected data from smart phones or tablets in their eDiscovery matters, up from 26% last December. 28% of respondents have requested data from mobile sources.
  • Requesting and producing social media data is somewhat low, as only 23% of respondents have requested social media data, such as Facebook, LinkedIn or Twitter from opposing counsel and only 11% have produced social media data from those sites.
  • Individual confidence continues to rise as 85% of respondents felt as confident or more confident in their ability to manage eDiscovery in their cases as compared to a year ago. But, agency confidence is still a concern as 78% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 75% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete, and trustworthy”.
  • When it comes to discussing matters regarding eDiscovery with opposing counsel, the trend is considerably downward as only 42% of respondents felt adequately prepared to do so, down from 56% last time and less than half the percentage as it was in 2012 (when it was 87%). That’s clearly heading the wrong direction.

Once again, these are some sample findings.  For a complete list of findings, available in a condensed, two-page (this time) USA Today style infographic, click here to download.  Twice the pages as last time, but the report is still free!

So, what do you think?  Do you work for, or with, government agencies?  If so, do any of these findings surprise you?  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.

August Case Law Pop Quiz Answers!: eDiscovery Case Law

I’m out of the office for a couple of days, taking the kiddos on one more overnight family vacation before school starts next week. Yesterday, we gave you a pop quiz for the eDiscovery case law that we’ve covered recently. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. In which case was the defendant ordered to produce metadata?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

2. In which case did the court of appeals uphold a “death penalty order” against the defendant for discovery violations

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

3. In which case(s) was a request for sanctions denied by the court?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Sanctions were denied in both cases

D. Sanctions were denied in neither case

4. In which case did the court deny the request for “limitless” access to the plaintiff’s Facebook account?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

5. In which case was the defendant ordered to produce further ESI in native format or TIFF format with the associated metadata?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

6. In which case was the defendant ordered to produce employees’ personal data in an EEOC dispute?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

7. In which case was the defendants sanctioned over $200,000 for using “Crap Cleaner” software, among other violations?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

8. In which case was the plaintiff taxed over $63,000 to be paid to the prevailing defendant in the case?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

9. In which case was the plaintiff sanctioned for failing to preserve an audio recording, as part of “wilfully” engaging in spoliation of relevant evidence?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

10. In which case did the court order the deposition of an expert to evaluate issues resulting from plaintiff’s deletion of ESI?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

August Case Law Pop Quiz!: eDiscovery Case Law

I’m out of the office for a couple of days, taking the kiddos on one more overnight family vacation before school starts next week. So, here’s an opportunity to to catch up on cases we’ve covered recently with a case law pop quiz.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

1. In which case was the defendant ordered to produce metadata?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

2. In which case did the court of appeals uphold a “death penalty order” against the defendant for discovery violations

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Crews v. Avco Corp.

D. Younes, et al. v. 7-Eleven, Inc.

3. In which case(s) was a request for sanctions denied by the court?

A. Malone v. Kantner Ingredients

B. Gladue v. Saint Francis Medical Center

C. Sanctions were denied in both cases

D. Sanctions were denied in neither case

4. In which case did the court deny the request for “limitless” access to the plaintiff’s Facebook account?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

5. In which case was the defendant ordered to produce further ESI in native format or TIFF format with the associated metadata?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

6. In which case was the defendant ordered to produce employees’ personal data in an EEOC dispute?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

7. In which case was the defendants sanctioned over $200,000 for using “Crap Cleaner” software, among other violations?

A. In re Milo’s Kitchen Dog Treats Consolidated Cases

B. Clear-View Technologies, Inc., v. Rasnick et al

C. Wilson v. Conair Corp.

D. EEOC v. DolgenCorp LLC d/b/a Dollar General

8. In which case was the plaintiff taxed over $63,000 to be paid to the prevailing defendant in the case?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

9. In which case was the plaintiff sanctioned for failing to preserve an audio recording, as part of “wilfully” engaging in spoliation of relevant evidence?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

10. In which case did the court order the deposition of an expert to evaluate issues resulting from plaintiff’s deletion of ESI?

A. Procaps S.A. v. Patheon Inc.

B. Compass Bank v. Morris Cerullo World Evangelism

C. Willett, et al. v. Redflex Traffic Systems, Inc.

D. Fitbug Ltd. v. Fitbit, Inc.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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.

Want to Avoid eDiscovery “Gotchas”? Attend this Session at ILTA: eDiscovery Best Practices

There is less than two weeks left before ILTACON 2015, the annual conference for the International Legal Technology Association (ILTA) at Caesars Palace in Las Vegas.  eDiscovery Daily will be at the show and providing coverage before, during and after the show.  If you’re attending (or thinking of attending), here is one session that you should put on your list to check out.

The session 20 E-Discovery Warnings in 60 Minutes will be moderated by George Socha, EDRM co-founder and president of Socha Consulting and Michael Boggs, director of practice support at Holland & Hart.  George and Michael will moderate a fast-paced series of live stories from audience members, who will share examples from their own experiences of eDiscovery situations gone wrong, explain how the issue was ultimately resolved, and share their lessons learned.  As George noted in EDRM’s announcement regarding the session yesterday, “The session will offer 20 opportunities to learn from the mistakes of others – an educational and entertaining way to increase one’s own success rate.”

Several eDiscovery professionals will be presenting the eDiscovery situations gone wrong, including me.  I will be presenting two topics that are issues we have experienced with some of our clients at CloudNine and how we addressed them (hint: we’ve covered them on this blog before).  So, I hope to meet you there!

The session will take place on Tuesday, September 1, from 1:30 to 2:30 pm at the ILTACON 2015 conference at Caesars Palace in Las Vegas (currently slated for Milano Ballroom I & II).

So, what do you think?  Will you be attending ILTACON this year?  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 Plaintiff to Re-Review 95% of its Production Classified as “Highly Confidential”: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. July 20, 2015), after the plaintiff designated 95% of its forensically-produced documents (141,525 of 148,636) as “highly confidential”, Florida District Judge Jonathan Goodman ordered the plaintiff to re-review and re-designate those documents within ten days, and also assessed a $25,000 fees award against the plaintiff’s outside counsel to compensate the defendant for its efforts in reviewing the documents.

Case Background

In this case, the parties entered into a stipulated confidentiality agreement whereby they designated confidential documents as either “Confidential Information” or “Highly Confidential Information”, with the parties agreeing that only counsel could view the “Highly Confidential Information”. The parties agreed to use the “Highly Confidential Information” category only for “information that truly requires highly sensitive protection.”

The defendant challenged both the plaintiff’s method of marking highly confidential documents and the number of documents marked.  The plaintiff marked each highly confidential document with the “highly confidential” legend but did so in a way which prevented the defendant from doing a computer search for the term “highly confidential.”  The defendant alleged that its inability to perform these searches significantly prejudiced its defense of the case.

Also, 148,636 documents were produced by the plaintiff in the forensic analysis, and the plaintiff designated 141,525 of them as “highly confidential” (95.2%).   The defendant also determined that 90.9% of the plaintiffs’ entire production (141,696 of 155,759 documents) was branded by the plaintiff as “highly confidential.”  The defendant’s statistical sample review of the branded “highly confidential” documents identified documents generated by the defendant itself, as well as SPAM emails – documents that would clearly not be “highly confidential”.  As a result, the defendant filed a motion for re-designation of highly confidential documents on July 13, 2015 and also sought fee reimbursement of $34,385.69.  The plaintiff ultimately acknowledged the “apparent over-designation of documents as Highly Confidential”, noting that it was performed by a third party vendor.

Judge’s Ruling

In a previous ruling in this case, Judge Goodman began his opinion by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King; in this ruling, he began by quoting song lyrics from a song by Christine McVie.  Judge Goodman, characterizing the plaintiff’s designations as “indiscriminate”, rejected the plaintiff’s proposed alternatives for the defendant or the special master to identify the documents to be re-reviewed, stating that “Procaps’ indiscriminate designation of documents as highly confidential should not lead to the “result of improperly shifting the cost of review of confidentiality” to Patheon.”

Instead, noting that “Procaps cannot avoid its discovery obligations by shifting blame to the third party it hired for the project” and observing that “Procaps’ attorneys presumably performed the final review, and one or more of its attorneys realized, or should have realized, that a 95% highly confidential, AEO (attorney’s eyes only) designation rate is problematic and questionable (or “absurd”) on its face”, Judge Goodman ordered the plaintiff to re-review and re-designate those documents within ten days.  He also awarded the defendant $25,000 of the $34,385.69 fees requested.

So, what do you think?  Was the court correct in ordering the plaintiff to re-review the documents in such a short period of time?  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 Has a “Beef” with Plaintiff’s Proportionality Argument: eDiscovery Case Law

In Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ (D. Kan. June 26, 2015), Kansas Magistrate Judge Teresa J. James granted the defendants’ motion to compel production of documents, overruling the plaintiffs’ objections to the discovery request in finding that “Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome”.

Case Background

In this breach of contract case, the defendant requested in June 2014, among other production requests, “any and all Documents related to Your hedging and/or risk management strategies and/or policies for all cattle purchased pursuant to the Agreement”.   Subsequently, in April 2015, the defendant deposed a former employee of the plaintiff and learned for the first time of the existence of specific documents that the plaintiff had not produced relating to hedging and/or risk management activities of both cattle and grain pursuant to the Agreement.  After requesting those documents, the plaintiff’s lead counsel sent a letter declining to produce the requested documents as irrelevant.  She offered to schedule a time for the parties to meet and confer about the issue, but she had left the country the day before and fact discovery closed the following day, forcing the defendant to file its motion to compel.

The plaintiff argued that the defendants’ motion to compel should be denied because:

  1. Defendants failed to comply with the “meet and confer” (or was it “meat and confer”?) obligation imposed by Kan. R. 37.2;
  2. Plaintiff had already produced relevant information responsive to the request;
  3. Defendants’ motion was not proportional; and
  4. the Court should defer ruling on the motion until the presiding district judge rules on Plaintiff’s motion for partial summary judgment on risk management claims.

Judge’s Ruling

Noting that the “Defendants had a limited amount of time in which to file their motion to compel”, Judge James found that “Defendants have complied with their Fed. R. Civ. P. 37(1)(1) and D. Kan. R. 37.2 obligations to confer. Defendants acted in a timely fashion and contacted the only Plaintiff’s attorney available before their deadline. In addition, on May 4, 2015, Defendants’ counsel attempted to discuss the issue with Plaintiff’s counsel after she had returned to the country, but she declined to do so.”

Judge James also stated that, “When the discovery sought appears relevant, the party resisting discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”  Finding that “the relevancy of the documents is apparent on its face”, Judge James ruled that the documents were within the bounds of the production request.

Finally, with regard to the plaintiff’s proportionality argument, Judge James stated:

“The Court finds that Plaintiff has not satisfied its burden to show that producing the requested documents would be unduly burdensome. Although Plaintiff articulates the issue as one of proportionality, the only factor Plaintiff mentions is the cost of the discovery. Plaintiff does not set forth what the relative cost of production would be as compared to the amount in controversy. The Court notes that both parties seek damages/setoff in excess of $2,000,000. Plaintiff’s unsupported estimate of $4,000 to $5,000 per custodian in discovery costs does not lead the Court to find that ordering the requested discovery violates proportionality, particularly given the history, scope, and nature of this case.”

Judge James did, however, reject the defendants’ request for sanctions in the form of an award of their reasonable expenses incurred in making the motion.

So, what do you think?  Does the plaintiff have a valid “beef” with the verdict?  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.

Rules Amendments Are Not Just Being Approved WITHIN DC, But Also FOR DC As Well: eDiscovery Trends

We’ve been covering the progress of adoption of changes to the Federal Rules and the associated debate regarding the rules – especially Rule 37(e) – for over two years (with posts here, here, here, here, here, here, here and here).  Unless Congress introduces legislation to affect the timing or content of the rules, the rules will become effective on December 1 of this year.  But, did you know that there are new rules amendments for the District of Columbia, as well?

According to DCBar.org, on August 5, the Superior Court of the District of Columbia issued Rule Promulgation Order 15-02 amending Superior Court Rules of Civil Procedure 16, 26, 33, 34, 36, 37, and 45.

The amendments, which take effect October 12, 2015, establish processes and procedures for electronic discovery, including the manner for requesting and producing electronically stored information, and for requesting and submitting certain discovery requests in an electronic format.  They also incorporate some stylistic changes based on guidelines established by the Style Subcommittee of the federal Standing Committee on the Rules of Practice and Procedure.

Including the one-page rule promulgation order, the amended rules (extensively edited with amendments to the rules in red and strikethrough of rule text that has been removed) is contained within this 38 page PDF file.  Happy reading!

So, what do you think?  Do you practice law in DC?  If so, are you happy about the rules changes?  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.

What’s Better than the Discovery Channel? The eDiscovery Channel!: eDiscovery Trends

Sometimes, I look for blog post ideas in different places, including performing searches for eDiscovery topics on Twitter, which yielded this gem.

If you’ve been a long time follower of this blog (or even not that long), you’re familiar with the thought leader interview series we conduct every year at LegalTech New York (LTNY).  Now, you can listen to podcasts from a couple of eDiscovery thought leaders from the comfort of your own computer!

The site ESI Bytes is a terrific resource for podcasts where top experts share their opinions and tips.  In their latest podcast, Craig Ball and Tom O’Connor about their new eDiscovery podcast series, the eDiscovery Channel.  Craig and Tom discuss various eDiscovery topics with the “sheriff”, the Honorable John Facciola, former United States Magistrate Judge for the United States District Court for the District of Columbia and Karl Schieneman, Founder and President of Review Less.

On this podcast, the topics they discussed included the recent Lola v. Skadden Arps appellate court ruling where the Second Circuit court ruled that the plaintiff’s lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions can proceed and whether review attorneys are actually performing legal work.  In that vein, they also discussed the quality of manual review and the plight of the attorney reviewer today.  In addition, they also took a look at the case we covered on Monday, United States v. Louisiana, where the defendant originally submitted a 2,941 page privilege log.  Good stuff, from a knowledgeable panel!

Tom previously partnered with the late Browning Marean to co-host the podcast series called the e-Discovery Zone, so you may have enjoyed some of his podcasts in the past.  eDiscovery Channel appears to have been in existence for at least a year, with posts going back as far as last year’s ILTA show at least.  I hope that they will post regularly and get others involved as well, it could be a very unique and beneficial resource to hear unique perspectives directly from well-respected eDiscovery thought leaders!  And, you don’t have to be Naked and Afraid to enjoy it!

So, what do you think?  Are you familiar with ESI Bytes or the eDiscovery Channel?  If not, you should check them out!  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.

Here are a Few Common Myths About Technology Assisted Review: eDiscovery Best Practices

A couple of years ago, after my annual LegalTech New York interviews with various eDiscovery thought leaders (a list of which can be found here, with links to each interview), I wrote a post about some of the perceived myths that exist regarding Technology Assisted Review (TAR) and what it means to the review process.  After a recent discussion with a client where their misperceptions regarding TAR were evident, it seemed appropriate to revisit this topic and debunk a few myths that others may believe as well.

  1. TAR is New Technology

Actually, with all due respect to each of the various vendors that have their own custom algorithm for TAR, the technology for TAR as a whole is not new technology.  Ever heard of artificial intelligence?  TAR, in fact, applies artificial intelligence to the review process.  With all of the acronyms we use to describe TAR, here’s one more for consideration: “Artificial Intelligence for Review” or “AIR”.  May not catch on, but I like it. (much to my disappointment, it didn’t)…

Maybe attorneys would be more receptive to it if they understood as artificial intelligence?  As Laura Zubulake pointed out in my interview with her, “For years, algorithms have been used in government, law enforcement, and Wall Street.  It is not a new concept.”  With that in mind, Ralph Losey predicts that “The future is artificial intelligence leveraging your human intelligence and teaching a computer what you know about a particular case and then letting the computer do what it does best – which is read at 1 million miles per hour and be totally consistent.”

  1. TAR is Just Technology

Treating TAR as just the algorithm that “reviews” the documents is shortsighted.  TAR is a process that includes the algorithm.  Without a sound approach for identifying appropriate example documents for the collection, ensuring educated and knowledgeable reviewers to appropriately code those documents and testing and evaluating the results to confirm success, the algorithm alone would simply be another case of “garbage in, garbage out” and doomed to fail.  In a post from last week, we referenced Tom O’Connor’s recent post where he quoted Maura Grossman, probably the most recognized TAR expert, who stated that “TAR is a process, not a product.”  True that.

  1. TAR and Keyword Searching are Mutually Exclusive

I’ve talked to some people that think that TAR and key word searching are mutually exclusive, i.e., that you wouldn’t perform key word searching on a case where you plan to use TAR.  Not necessarily.  Ralph Losey continues to advocate a “multimodal” approach, noting it as: “more than one kind of search – using TAR, but also using keyword search, concept search, similarity search, all kinds of other methods that we have developed over the years to help train the machine.  The main goal is to train the machine.”

  1. TAR Eliminates Manual Review

Many people (including the New York Times) think of TAR as the death of manual review, with all attorney reviewers being replaced by machines.  Actually, manual review is a part of the TAR process in several aspects, including: 1) Subject matter knowledgeable reviewers are necessary to perform review to create a training set of documents for the technology, 2) After the process is performed, both sets (the included and excluded documents) are sampled and the samples are reviewed to determine the effectiveness of the process, and 3) The resulting responsive set is generally reviewed to confirm responsiveness and also to determine whether the documents are privileged.  Without manual review to train the technology and verify the results, the process would fail.

  1. TAR Has to Be Perfect to Be Useful

Detractors of TAR note that TAR can miss plenty of responsive documents and is nowhere near 100% accurate.  In one recent case, the producing party estimated as many as 31,000 relevant documents may have been missed by the TAR process.  However, they also estimated that a much more costly manual review would have missed as many as 62,000 relevant documents.

Craig Ball’s analogy about the two hikers that encounter the angry grizzly bear is appropriate – the one hiker doesn’t have to outrun the bear, just the other hiker.  Craig notes: “That is how I look at technology assisted review.  It does not have to be vastly superior to human review; it only has to outrun human review.  It just has to be as good or better while being faster and cheaper.”

So, what do you think?  Do you agree that these are myths?  Can you think of any others?  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.

If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law

In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.

Case Background

In this enforcement action for declaratory and injunctive relief under the National Voter Registration Act of 1993 filed by the plaintiff in 2011, the defendant submitted a 2,941 page privilege log on February 6, 2015 in response to the plaintiff’s second Requests for Production which listed email communications and their attachments, that the plaintiff claimed were protected from production by the attorney client privilege, the work product doctrine, and the joint defense/common interest privilege.

On February 23, the plaintiff informed the defendant that its privilege log did “not contain a sufficient amount of information for [the U.S.] or the Court to be able to make an independent privilege determination as to the applicability and validity of the asserted privilege”, complaining about the privilege log’s failure to include: (1) job titles of the listed recipients, including whether any recipient was acting in the capacity of an attorney; (2) descriptions for most of the listed email’s attachments; and (3) sufficiently detailed descriptions of the communications referenced.  Then, on April 17, the defendant gave the plaintiff an updated privilege log, which deleted “over 1500” communications and documents and also included brief descriptions of the email attachments listed in the log, reducing the overall privilege log to (a mere) 2,302 pages of entries.  Still, the plaintiff filed a Motion to Compel a Proper Privilege Log.

On May 22, Judge Bourgeois denied the motion to the extent that it sought an order compelling the defendant to produce an entirely revised Privilege Log, noting that the plaintiff “only provides 13 examples of ‘insufficient descriptions’ that apparently account for ‘hundreds if not thousands’ of the privilege log’s entries” and rejected the plaintiff’s “sweeping argument” to order the defendant to revise every entry of its privilege log.  Judge Bourgeois did rule that the plaintiff “may file a renewed Motion to Compel by Friday, May 29, 2015, citing up to 40 specific entries in DHH’s privilege log, which are exemplary of the entries it challenges as insufficient.”  The plaintiff did that, and the defendant then submitted for in-camera review the documents described in the 40 privilege log entries.

Judge’s Ruling

With regard to the defendant’s privilege log, Judge Bourgeois noted that the “challenged entries are not described with sufficient detail for either the Court or the United States to evaluate the applicability of the attorney client privilege or work product doctrine”, that, in several instances, “the privilege log includes some, but not all of the senders or recipients of a communication” and that it also “fails to sufficiently explain the role of each identified recipient and sender with respect to communications with in-house counsel”.

With the “benefit of being able to review (in-camera) the documents described in the 40 entries at issue”, Judge Bourgeois concluded that “many of these documents do not fall within the scope of the attorney client privilege or work product doctrine” and was “convinced that the overwhelming majority (if not all) of the withheld 40 documents, do not concern the legal advice of counsel as it relates to this litigation or counsel’s strategy for trial.”

As a result, Judge Bourgeois found that “DHH acted unreasonably in preparing the privilege log and asserting its claims of privilege”, but was “reluctant to find a complete waiver of privilege as to all of the documents described” in the log.  Instead, Judge Bourgeois ordered the defendant to reassess its claims of privilege and notify the plaintiff by August 17 of previously contested items for which it withdraws its claims of privilege and produce those documents OR provide the plaintiff with a supplemental privilege log containing sufficient information to allow the plaintiff to assess the defendant’s claims of privilege.

So, what do you think?  Was that the correct call?  Or should the court have waived privilege for all of the documents contained within the privilege log?  Please share any comments you might have or if you’d like to know more about a particular topic.

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