Close
Enter your
text here

Electronic Discovery

Vacation Case Law Pop Quiz #2!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

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 to this second vacation case law pop quiz for those who don’t know and didn’t look them up.

1. Which case did the judge refer to as “Da Silva Moore Revisited”?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

2. In which case did the court grant the plaintiff’s Motion to Quash the defendant’s subpoena of text messages?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

3. In which case did the court uphold the award by the Clerk of the Court of over $57,000 in taxable costs?

A. Rio Tinto Plc v. Vale S.A.

B. Comprehensive Addiction Treatment Center, Inc. v. Leslea

C. Burdette v. Panola County

D. In Re: Lithium Ion Batteries Antitrust Litigation

4. Which case(s) cited the Da Silva Moore case?

A. Rio Tinto Plc v. Vale S.A.

B. In Re: Lithium Ion Batteries Antitrust Litigation

C. Both cited Da Silva Moore

D. Neither cited Da Silva Moore

5. In which case was the request for spoliation sanctions against the defendant for failure to preserve video footage not only denied, but the defendant was granted summary judgment in the case?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

6. In which case did the appeals court affirm the District Court’s approval of a $6,300+ bill of costs which included synchronization of deposition videos and imaging of hard drives?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

7. In which case did the court rule that the duty to preserve for the Australian defendant did not begin until the complaint was filed in US courts?

A. Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd.

B. Colosi v. Jones Lang LaSalle Americas, Inc.

C. Harrell v. Pathmark et al.

D. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

8. In which case was the defendant sanctioned for discarding a relevant computer?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

9. In which case did the court rule that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

10. In which case was the defendant sanctioned and ordered to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination?

A. Harrell v. Pathmark et al.

B. Engineered Abrasives, Inc. v. American Machine Products & Service, Inc.

C. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc.

D. Grady v. Brodersen

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.

When Collecting Emails, Make Sure You Have a Complete Outlook: eDiscovery Best Practices

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed. Today’s post takes a look back at Outlook files and the different forms they take. How many do you know?

Most discovery requests include a request for emails of parties involved in the case. Email data is often the best resource for establishing a timeline of communications in the case and Microsoft® Outlook is the most common email program used in business today. Outlook emails can be stored in several different forms, so it’s important to be able to account for each file format when collecting emails that may be responsive to the discovery request.

There are several different file types that contain Outlook emails, including:

EDB (Exchange Database): The server files for Microsoft Exchange, which is the server environment which manages Outlook emails in an organization. In the EDB file, a user account is created for each person authorized at the company to use email (usually, but not always, employees). The EDB file stores all of the information related to email messages, calendar appointments, tasks, and contacts for all authorized email users at the company. EDB files are the server-side collection of Outlook emails for an organization that uses Exchange, so they are a primary source of responsive emails for those organizations. Not all organizations that use Outlook use Exchange, but larger organizations almost always do.

OST (Outlook Offline Storage Table): Outlook can be configured to keep a local copy of a user’s items on their computer in an Outlook data file that is named an offline Outlook Data File (OST). This allows the user to work offline when a connection to the Exchange computer may not be possible or wanted. The OST file is synchronized with the Exchange computer when a connection is available. If the synchronization is not current for a particular user, their OST file could contain emails that are not on the EDB server file, so OST files may also need to be searched for responsive emails.

PST (Outlook Personal Storage Table): A PST file is another Outlook data file that stores a user’s messages and other items on their computer. It’s the most common file format for home users or small organizations that don’t use Exchange, but instead use an ISP to connect to the Internet (typically through POP3 and IMAP). In addition, Exchange users may move or archive messages to a PST file (either manually or via auto-archiving) to move them out of the primary mailbox, typically to keep their mailbox size manageable. PST files often contain emails not found in either the EDB or OST files (especially when Exchange is not used), so it’s important to search them for responsive emails as well.

MSG (Outlook MSG File): MSG is a file extension for a mail message file format used by Microsoft Outlook and Exchange. Each MSG file is a self-contained unit for the message “family” (email and its attachments) and individual MSG files can be saved simply by dragging messages out of Outlook to a folder on the computer (which could then be stored on portable media, such as CDs or flash drives). As these individual emails may no longer be contained in the other Outlook file types, it’s important to determine where they are located and search them for responsiveness. MSG is also a common format for native production of individual responsive Outlook emails, though HTML is also used (as Outlook emails, by default, are already HTML formatted files).

Other Outlook file types that might contain responsive information are EML (Electronic Mail), which is the Outlook Express e-mail format and PAB (Personal Address Book), which, as the name implies, stores the user’s contact information.

Of course, Outlook emails are not just stored within EDB files on the server or these other file types on the local workstation or portable media; they can also be stored within an email archiving system or synchronized to phones and other portable devices. Regardless, it’s important to account for the different file types when collecting potentially responsive Outlook emails for discovery.

So, what do you think? Are you searching all of these file types for responsive Outlook emails? 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.

Vacation Case Law Pop Quiz #1 Answers!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

Yesterday, we gave you a pop quiz for the first set of cases. 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 did the judge state that the defendant’s “discovery misconduct calls for serious measures”?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

2. In which case did the court order the defendant to submit a further declaration supporting its claimed eDiscovery costs?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

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

A. James v. National Financial LLC

B. Ablan v. Bank of America

C. Federico et al. v. Lincoln Military Housing LLC, et al.

D. Requests for sanctions were granted in all of the above cases

4. In which case did the court decline to sanction a party for failing to produce or make available documents held by the plaintiff’s outside vendor?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

5. Which case involved allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

6. In which case did the judge issue an order titled “Order on One Millionth Discovery Dispute”?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

7. In which case did the court award attorney fees requested by the defendant to compensate for filing a motion to compel the plaintiff to produce documents?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

8. In which case was the plaintiff’s motion to compel the defendants to produce ESI again in native format denied by the court?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

9. In which case did the judge state that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

10. In which case did the appeals court reverse an award for attorney fees due to ESI requests that the lower court deemed as “clearly frivolous”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup 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.

Vacation Case Law Pop Quiz #1!: eDiscovery Case Law

I’m out of the office this week, taking the kiddos on a family vacation (can you guess where?). Instead of going dark for the week (which we almost never do), I decided to use the opportunity to give you a chance to catch up on cases we’ve covered so far this year with a couple of case law pop quizzes, sandwiched around a popular post from the past that you may have missed.

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 to this first vacation case law pop quiz for those who don’t know and didn’t look them up.

1. In which case did the judge state that the defendant’s “discovery misconduct calls for serious measures”?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

2. In which case did the court order the defendant to submit a further declaration supporting its claimed eDiscovery costs?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

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

A. James v. National Financial LLC

B. Ablan v. Bank of America

C. Federico et al. v. Lincoln Military Housing LLC, et al.

D. Requests for sanctions were granted in all of the above cases

4. In which case did the court decline to sanction a party for failing to produce or make available documents held by the plaintiff’s outside vendor?

A. Bonillas v. United Air Lines Inc.

B. James v. National Financial LLC

C. Ablan v. Bank of America

D. Federico et al. v. Lincoln Military Housing LLC, et al.

5. Which case involved allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

6. In which case did the judge issue an order titled “Order on One Millionth Discovery Dispute”?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

7. In which case did the court award attorney fees requested by the defendant to compensate for filing a motion to compel the plaintiff to produce documents?

A. Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp.

B. Newill v. Campbell Transp. Co.

C. Herron v. Fannie Mae, et al.

D. Bertoli et al. v. City of Sebastopol, et al.

8. In which case was the plaintiff’s motion to compel the defendants to produce ESI again in native format denied by the court?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

9. In which case did the judge state that “the majority of the search terms suggested by Plaintiff are too generic and are likely to produce a large number of documents that are irrelevant to this case”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup Inc.

10. In which case did the appeals court reverse an award for attorney fees due to ESI requests that the lower court deemed as “clearly frivolous”?

A. Herron v. Fannie Mae, et al.

B. Bertoli et al. v. City of Sebastopol, et al.

C. Allison v. Clos-ette Too, LLC

D. Lutzeier v. Citigroup 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.

Court Sanctions Plaintiff for Failing to Preserve Audio Recording: eDiscovery Case Law

In Compass Bank v. Morris Cerullo World Evangelism, Civil No. 13-CV-0654-BAS(WVG)(S.D. Cal. May 8, 2015), California Magistrate Judge William V. Gallo ruled that the plaintiff “wilfully engaged in the spoliation of relevant evidence”, and “has demonstrated a pattern of recalcitrant behavior during discovery in this litigation” and awarded an adverse inference jury instruction sanction against the plaintiff as well as defendant’s attorney fees and costs.

Case Background

During discovery in this case, the defendant issued two sets of document requests (in April and October 2014, respectively) which included all audio recordings relating to a letter of credit at the center of the dispute, allegedly issued on behalf of the plaintiff by its former branch manager. The plaintiff did not produce any audio recordings during discovery. Then, on February 12 of this year, the defendant took the deposition of the plaintiff’s Rule 30(b)(6) witness, during which she stated that during a phone call with the former branch manager in February of 2013, he admitted that he issued the letter of credit. She also testified that the plaintiff automatically records all of her phone calls in the regular course of business, and automatically records the calls of all its Trade Service Division officers. During her deposition, the plaintiff’s Rule 30(b)(6) witness stated, “our lines in international trade services and the letter of credit are recorded 24/7.”

The defendant immediately requested that the plaintiff produce the audio recording of the subject call. In a letter dated March 6, 2015, the plaintiff informed the defendant that it could not locate any such recording. The defendant subsequently filed a motion for sanctions, requesting either terminating or adverse inference jury instruction sanctions against the plaintiff, presenting evidence that the plaintiff had only searched one of the witness’s work phone numbers, when she actually had two phone numbers.

Judge’s Ruling

Because one of the main disputes in this case is whether the plaintiff issued the letter of credit and the audio recording seemed to verify that, Judge Gallo ruled that “the relevance of this evidence cannot reasonably be disputed”. He also ruled that the plaintiff had a duty to preserve the recording, noting that even though “the subject call occurred prior to Plaintiff filing the Complaint, Plaintiff has previously argued to this Court that it reasonably anticipated litigation regarding the letter of credit in February of 2013.”

With regard to whether the evidence was lost or destroyed with a culpable state of mind, based on the fact that “no evidence has been presented to the Court that Plaintiff initiated a litigation hold” and that “not only did Plaintiff not produce the recording of the subject call or any other calls, it utterly failed to even disclose that such calls were recorded”, Judge Gallo found that “Plaintiff wilfully failed to produce the recording in response to discovery requests, wilfully failed to conduct a diligent search in an effort to locate the recording, and wilfully withheld the recording from Defendant”. Judge Gallo also noted that the plaintiff “has a history of being recalcitrant and failing to produce relevant discovery” for failing to produce an Interview Summary of the former branch manager under the work product doctrine that ultimately proved to be clearly not protected.

As a result, Judge Gallo, while declining to award terminating sanctions, awarded a “less drastic” adverse inference jury instruction sanction against the plaintiff as well as ordered the plaintiff to reimburse defendant’s attorney fees and costs to be determined after a review the defendant’s detailed time calculations and declaration(s).

So, what do you think? Do you agree that the audio recording was lost or destroyed with a culpable state of mind? 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.

Want to Save Review Costs? Be the Master of Your Domain(s): eDiscovery Best Practices

Yesterday, we discussed how some BigLaw firms mark-up reviewer billing rates two to three times (or more) when billing their clients. But, even if that’s not the case, review is still by far the most expensive phase of eDiscovery. One way to minimize those costs is to identify documents that need little or no review and domain categorization can help in identifying those documents.

Even though the types of electronically stored information (ESI) continue to be more diverse, with social media and other sources of ESI becoming more prominent, email is still generally the biggest component of most ESI collections and each participant in an email communication belongs to a domain associated with the email server that manages their email.

Several review platforms, including (shameless plug warning!) our CloudNine™ platform (see example above using the ever so ubiquitous Enron data set), support domain categorization by providing a list of domains associated with the ESI collection being reviewed, with a count for each domain that appears in emails in the collection. Domain categorization provides several benefits when reviewing your collection by identifying groups of documents, such as:

  • Non-Responsive ESI: Let’s face it, even if we cull the collection based on search terms, certain non-responsive documents will get through. For example, if custodians have received fantasy football emails from ESPN.com or weekly business newsletters from Fortune.com and those slip through the search criteria, that can add costs to review clearly non-responsive ESI. Instead, with domain categorization, domains in the list that are obviously non-responsive to the case can be quickly identified and all messages associated with those domains (and their attachments) can be “group-tagged” as non-responsive.
  • Potentially Privileged ESI: If there are any emails associated with outside counsel’s domain, they could obviously represent attorney work product or attorney-client privileged communications (or both). Domain categorization is a quick way to “group-tag” them as potentially privileged, so that they can be reviewed for privilege and dealt with quickly and effectively.
  • Issue Identification: Messages associated with certain parties might be related to specific issues (e.g., an alleged design flaw of a specific subcontractor’s product), so domain categorization can isolate those messages more quickly and get them prioritized for review.

In essence, domain categorization enables you to put groups of documents into “buckets” to either eliminate them from review entirely or to classify them for a specific workflow for review, saving time and cost during the review process. Time is money!

So, what do you think? Does your review platform provide a mechanism for domain categorization? If so, do you use it to help manage the review process and control costs? 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.

This Firm Marked Up Reviewer Billings Over 500 Percent and that’s Not the Worst Part: eDiscovery Trends

Remember when we asked the question whether a blended document review rate of $466 per hour is excessive? Many of you weighed in on that one and that post is still our most viewed of all time. Marking up the billing rate for reviewers over 500 percent may or may not also be unacceptable, depending on who you talk to. But, everyone agrees that billing more hours than you actually worked is a bad thing.

According to a new article by Gina Passarella in The Legal Intelligencer (Are Contract Attorney Markups Of Any Concern to Clients?), a former Drinker Biddle & Reath contract attorney received a two-year suspension last week for overbilling a client on document review. The attorney worked for the firm from 2011 through 2012, where he was paid $40 an hour and charged out to a client at $245 an hour.

If you’re whipping out your calculator, I’ll save you the trouble – that’s a 513 percent markup (rounded up).

But, that’s not why he was suspended. It turns out that the attorney logged more time into the firm’s time accounting system than he was logged into the firm’s eDiscovery system and had overbilled for the 12 months he was at the firm. Drinker Biddle terminated the attorney within days of discovering the discrepancy.

But, according to Passarella’s article, “the legal community’s reaction focused not so much on the behavior as on the lawyer’s billing rate… Some have described a 513 percent markup as ‘stratospheric’ while others have said a firm’s internal profitability is none of the client’s business as long as the client feels it is getting the perceived value from the business transaction.”

Drinker Biddle chairman Andrew C. Kassner defended the markup, citing overhead costs and said that the firm works hard to ensure value for the client and provided a lower-cost option to the client by using a contract lawyer rather than an associate.

Unlike Mark Antony (the Roman emperor, not the singer), I don’t come to bury Drinker Biddle in this article, many law firms mark review up considerably. And, as Passarella notes, “Drinker Biddle was certainly an early adopter of the value proposition espoused by the Association of Corporate Counsel and others, becoming one of the first law firms to create a chief value officer position in 2010 and forming an associate training program post-recession that didn’t charge clients for the first four months of a first-year’s time.”

However, Passarella’s article does quote three individuals who questioned the current billing model: 1) a former general counsel who, while he was in-house, “decoupled” the use of contract attorneys from outside counsel, 2) a former BigLaw attorney who became disenchanted with the large-firm business model and created his own firm which focuses on providing better value to clients, and 3) an Altman Weil consultant who questioned the $245 value for document review, noting that “if it were really important they wouldn’t be using a $40-an-hour lawyer”. Perhaps we should revisit the discussion as to whether it’s time to ditch the per hour model for document review?

As for the overbilling, Kassner said the firm paid back the client all that it was charged for the overbilled time as well as for any time the attorney charged on the matter.

So, what do you think? Is it time to ditch the per hour model for document review? Or, is marking up reviewer billing two to three times (or more) an acceptable practice? 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.

Want a Definition of “Possession, Custody, or Control” of ESI? Look to The Sedona Conference: eDiscovery Best Practices

Hard to believe that we’re just now getting around to covering it, but The Sedona Conference® released a new commentary back in April. This guide strives to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45.

Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery of “documents, electronically stored information, and tangible things” in the responding party’s “possession, custody, or control.” Similarly, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control. However, nowhere does the Rules provide any definition of the phrase “possession, custody, or control”, requiring parties to look to case law for a definition. Unfortunately, the case law has proved to be unclear and inconsistent in providing such a definition. In addition, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

The public comment version of The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was released in April to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production. A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The guide begins with a one-page Abstract that briefly describes the issue and the goal of the commentary, followed by a one-page list of the actual principles. They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to trump conflicting state or federal privacy or other statutory obligations.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, shortcomings of the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles. There is also an Appendix with a lengthy spreadsheet of cases where “possession, custody, or control” was at issue.

As usual, the Commentary is free and can be downloaded here. As this is the public comment version, you can submit comments to info@sedonaconference.org, or fax(!) them to 602-258-2499.

So, what do you think? Will these new principles lead to a consistent application of “possession, custody, or control” within the courts? 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’s a New Job Title that May Catch On – Chief Data Scientist: eDiscovery Trends

With big data becoming bigger than ever, the ability for organizations to apply effective data analytics within information governance and electronic discovery disciplines has become more important than ever. With that in mind, one law firm has created a new role that might catch on with other firms and corporations – the role of Chief Data Scientist.

The article from Legaltech News (Drinker Biddle Names Borden Chief Data Scientist, by Chris DiMarco) notes that Drinker Biddle & Reath has named Bennett Borden the firm’s first chief data scientist (CDS). As the author notes, in this role, Borden will oversee the implementation of technologies and services that apply use of data analytics and other cutting edge tools to the practice of law and will be tasked with developing the firm’s data analytics strategy. The move positions Drinker Biddle as one of the first firms – possibly in the world – to carve out a leadership position overseeing data analytics, with the impetus for the new role coming from the firm’s longstanding views on the importance of governing information.

Borden, who is also co-founder of the Information Governance Initiative (IGI), was quoted in the article, stating, “Our perspective is that information governance is a coordinating discipline around all the different facets of the creation use and disposition of information. And so data analytics is one more part of a large IG framework.”

Borden’s selection as the firm’s chief data scientist comes on the heels of him receiving a Master of Science degree in business analytics from New York University.

“Because of where analytics is going, especially in the business arena, I was interested in getting additional training,” Borden said. “My entire career has focused on using advanced analytics on large volumes of information to find something of value. Much of my work has focused on using advanced data analytics across many of our practices, not only for discovery, but also for compliance and investigations.”

According to Borden, he is among the first to hold the title of CDS at a major firm. Will this start a trend? Maybe so. Congrats, Bennett!

So, what do you think? Do you think other firms and organizations will create a Chief Data Scientist position? Please share any comments you might have or if you’d like to know more about a particular topic.

Image © exploringdatascience.com

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.