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Electronic Discovery

2014 eDiscovery Case Law Year in Review, Part 1

It’s time for our annual review of eDiscovery case law!  We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, and production formats, even disputes regarding eDiscovery fees.  So, as we did last year and the year before that and also the year before that, let’s take a look back at 2014!

Last year, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! And, believe it or not, we still didn’t cover every case that had eDiscovery impact. Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot). Perhaps you missed some of these? Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

As always, there are numerous disputes about data being produced and not being produced and whether the costs to do so are overly burdensome. Here are twelve cases related to admissibility, the duty to preserve and produce ESI and the proportionality for preserving and producing that ESI:

Split Decision between Plaintiff and Defendant Regarding Search Terms: In Federal Deposit Insurance Corp. v. Giannoulias, Illinois District Judge John F. Grady resolved several motions regarding discovery proceedings in a $114 million lawsuit. Two of the motions concerned search terms for documents and electronically stored information (ESI), in which the plaintiff opposed the defendants’ request for six additional terms to be included in retrieving discovery documents. The court ruled that four additional search terms would be added, while two would be excluded.

Court Grants Motion to Compel Defendant to Produce Documents as Requested and Chronicle Approach: In Home Instead, Inc. v. Florance, following a motion to compel discovery on behalf of the plaintiff, Nebraska Magistrate Judge Cheryl R. Zwart ordered the defendant to produce documents requested during discovery and required the defendant to produce a sworn affidavit chronicling the methods used in their search for production of the discovery documents.

Electronic Discovery Dispute Sees Court Requesting Cooperation from Both Parties to Avoid “Court-Ordered Middle Ground”: In Fort Worth Employees’ Retirement Fund v. J.P. Morgan Chase & Co., a complex discovery dispute arose during the process of this securities action lawsuit revolving around the defendants’ loan products and offerings with regards to a specific consumer class, in which the plaintiffs filed a motion to compel an expanded discovery.

Definition of “Electronic Storage” Considered in Invasion of Privacy Lawsuit: In Cheng v. Romo, the interpretation of laws enacted prior to the modern Internet age served as a deciding factor in the outcome of this invasion of privacy lawsuit, which alleged a violation of the Stored Communications Act (SCA).

Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant: In the criminal case of United States v. Shabudin, California Magistrate Judge Nandor J. Vadas ordered the Government to continue to provide access to a Relativity Database used by the parties to review documents produced by the Government, instead of discontinuing access for the defendants several weeks before trial was to begin due to budgetary issues.

Portions of Plaintiff’s Motion to Compel eDiscovery Ruled as “Overbroad” and “Moot” Reaffirmed by District Court: In Elkharwily v. Mayo Holding Co., Minnesota District Judge David S. Doty overruled the plaintiff’s objection to a magistrate judge’s order that denied in part the plaintiff’s motion to compel discovery, labeling some requests as overbroad or moot, particularly after the defendant contended it had already produced the requested discovery materials.

Court Denies Defendant’s Request to Image Plaintiff’s PCs Three Years after Termination: In Downs v. Virginia Health Systems, Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

Court Denies Plaintiff’s Fallback Request for Meet and Confer after Quashing its Subpoena: In Boston Scientific Corporation v. Lee, California Magistrate Judge Paul S. Grewal found time to preside over a case other than Apple v. Samsung and granted the motion to quash the plaintiff’s subpoena for the defendant’s laptops, refusing the plaintiff’s fallback position to meet and confer and referencing Leave it to Beaver in the process.

Court Rules to Limit Scope of Discovery, Noting that “Searching for ESI is only one discovery tool”: In United States v. Univ. of Neb. at Kearney, Nebraska Magistrate Judge Cheryl R. Zwart denied the government’s motion to compel discovery, finding that “ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks” and stating that searching for ESI “should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions”.

Defendant Ordered to Produce Archived Emails Even Though Plaintiff Failed to Produce Theirs: In Finjan, Inc. v. Blue Coat Systems, California Magistrate Judge Paul S. Grewal granted the plaintiff’s motion ordering the defendant to produce relevant emails from its eight custodians, even though the plaintiff was unable to provide its own archival emails.

Court Determines that Software License Agreement Does Not Eliminate Production Obligation of Video: In Pero v. Norfolk Southern Railway, Co., Tennessee Magistrate Judge C. Clifford Shirley, Jr. granted the plaintiff’s motion to compel discovery of a video declining to require the plaintiff to view the video at the defendant’s counsel’s office or obtain a license for the proprietary viewing software, ordering the defendant instead to either produce a laptop with the video loaded on it or to reimburse the plaintiff for the cost of a software license.

Image Isn’t Everything, Court Says, Denying Plaintiff’s Request for Imaging on Defendant’s Hard Drives: In Design Basics, LLC. v. Carhart Lumber Co., Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff’s motion to compel “full disk imaging of Defendant’s hard drives, including Defendant’s POS server, secretaries’ computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).

DISCOVERY ON DISCOVERY

Some cases are becoming so contentious that parties (or sometimes the courts themselves) are requesting for discovery on their opponent’s discovery process. Sometimes those requests were granted, sometimes not. Here were six cases in 2014 which involved requests for “discovery on discovery”:

‘Discovery About Discovery’ Motions Lead to Unusual Court Decision: In Ruiz-Bueno v. Scott, a discovery dispute in this wrongful death case arose, leading Ohio Magistrate Judge Terence P. Kemp to arrive at the unusual decision to direct a party to provide ‘discovery about discovery.’

Ruling on ESI Discovery Dispute Delayed as Court Requests Specific Information: In Worley v. Avanquest North America Inc., a putative class action involving PC security software, California Magistrate Judge Laurel Beeler required the defendant to produce further information related to discovery disputes before a ruling would be issued.

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery: In In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Plaintiffs Denied Motion to Depose Defendants Regarding ESI Processes Prior to Discovery Requests: In Miller v. York Risk Servs. Grp., Arizona Senior District Judge John W. Sedwick denied the plaintiffs’ Motion to Compel, requesting permission to conduct depositions in order to determine the defendant’s manner and methods used for storing and maintaining Electronically Stored Information (ESI) prior to submitting their discovery requests.

Court Denies Defendant’s Request for Deposition Regarding Plaintiff’s Discovery Search Tools: In Koninklijke Philips N.V. v. Hunt Control Sys., Inc., New Jersey Magistrate Judge James B. Clark III granted the plaintiff’s protective order to prevent the defendant from proceeding with a new deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery,” after the requested discovery documents had already been produced.

Despite 18 Missing Emails in Production, Court Denies Request for “Discovery on Discovery”: In Freedman v. Weatherford Int’l, New York Magistrate Judge James C. Francis, IV denied the plaintiff’s request to, among other things, require the defendant to produce “certain reports comparing the electronic search results from discovery in this action to the results from prior searches” – despite the fact that the plaintiff identified 18 emails that the defendant did not produce that were ultimately produced by a third party.

We’re just getting started! Tomorrow, we will cover cases related to eDiscovery cost reimbursement, fee disputes and production format disputes. Stay tuned!

So, what do you think? Did you miss any of these? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court’s “New and Simpler Approach to Discovery” Identifies Search Terms for Plaintiff to Use – eDiscovery Case Law

In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S (W.D.N.Y. Dec. 9, 2014), New York Magistrate Judge Hugh B. Scott granted in part the defendant’s motion to compel discovery responses and fashioned a “new and simpler approach” to discovery, identifying thirteen search terms/phrases for the plaintiff to use when searching its document collection.

In this breach of contract case, discovery was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant in 2012 and prompted the court to caution the plaintiff “not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests”.  Nonetheless, the plaintiff subsequently produced documents nine different times.  As a result, the defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.

Judge Scott, noting that “[f]our and a half years later, discovery is far from complete”, expressed frustration with “the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.”  Stating that a “lawsuit is supposed to be a search for the truth”, Judge Scott said “the Court now will fashion a new and simpler approach to discovery” and identified thirteen phrases “that inevitably refer to or hint at the Hartman LOOP Technology”.  He then ordered:

“For a period starting from January 1, 2004 through the present time, Armstrong must search ALL corporate documents, files, communications, and recordings for EACH of the above phrases. Armstrong will maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results. For each positive result, Armstrong will procure a full copy of the document in question. Armstrong also will furnish a complete and sworn description of its document retention policies, if any, from January 1, 2004 through the present time. In the specific instance of [REDACTED] reports, if for any reason a product did not have a written report for a certain stage or did not go through all five stages then someone at Armstrong with appropriate knowledge or expertise will provide a sworn statement explaining why. When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).”

Judge Scott also cautioned the defendant that “the Court will not hesitate to apply the same approach to its document production”, ordering the defendant to “either 1) file a joint sworn statement that Optimum has fulfilled ALL outstanding discovery requests from Armstrong; or 2) file a motion for a protective order to quash any outstanding discovery requests that Optimum opposes” by January 14, 2015.

So, what do you think?  Did the court go too far?  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.

What I Want for Christmas – eDiscovery Wish List

With over 1,070 posts since September 20, 2010, we’ve had a lot to say about eDiscovery over 4+ years.  However, we’ve never published a Christmas wish list of what we’d like to see happen in eDiscovery over the next year, so I thought I’d offer up some eDiscovery Christmas wishes.  Let’s see if any of those come true within the next year!

Some of these wishes might be attainable and others might be akin to wishing for “world peace”, but here they are, for better or worse.  Remember, I’m not an attorney (and I don’t play one on TV), so keep that in mind.

Consistency in Awarding Costs for eDiscovery Services: Over the past few years, we’ve seen numerous prevailing parties request recovery of costs, including eDiscovery costs.  Judges, ruling on cost reimbursement, typically reference 28 U.S.C. § 1920 (especially §1920(4), which covers “Fees for exemplification and the costs of making copies of any material where the copies are necessarily obtained for use in the case”) in their rulings as the basis of their determination for taxation or recovery of costs.

For every case, like this recent case, where recovery of costs is approved, there is another case, like this one, where the recovery costs is denied (or overturned on appeal).  Here are three other cases where the reimbursement of costs was awarded and three other cases where that reimbursement was denied (or reversed) by the courts.  It would be great to see consistency in those rulings with a tendency toward a broadened interpretation of “making copies” and “for use in the case” to hold losing parties more accountable for the costs that the prevailing party has incurred to defend itself.

Rule 37(e) Won’t Give Producing Parties Too Much Latitude in Failing to Preserve Data: We’ve covered the upcoming changes to the Federal Rules quite a bit over the past few months, including posts here, here, here, here, here, here and here, as well as our thought leader interview series earlier in the year, where we asked for their thoughts about the impending rules changes.

Much of the concern raised by our thought leaders and many others regarded proposed Rule 37(e), which is intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation.  For the advocates of the rule, it perhaps reduces the “preserve everything” mentality that has driven up eDiscovery costs for many organizations; however, others are concerned that it will take that decision out of capable judges’ hands in determining the appropriateness and severity of sanctions for parties that fail to meet their preservation obligation.  Hopefully, with the proposed rule having been amended multiple times, the final version is a happy medium that doesn’t give preserving parties too much leeway in meeting their preservation obligations.  We’ll see.

Greater Consideration of Alternate Billing Methods, Especially for eDiscovery Review: While predictive coding is all the rage, most eDiscovery projects (even ones using predictive coding) still require some manual review to be performed.  In some cases, they require a lot of manual review.  And, when law firms bill by the hour on those cases, they make a lot of money.  In some cases, this leads to abuse as we discussed last year with DLA Piper being sued by its client for $22 million for overbilling.  Or this case, where the plaintiff tried to bill contract attorneys at a blended rate of $466 per hour (our most viewed blog post ever!).

If more organizations insisted on a per document (or per page) rate instead of a per hour rate, that could make document review costs more predictable and possibly more consistent.  As Craig Ball pointed out in last year’s post on the topic, that system isn’t perfect as a one page document and a 300 page document would be treated the same.  It’s a good point.  Nonetheless, in a large enough document collection, it would presumably average out and it would give the client some cost certainty for helping estimate the cost of the litigation.  My wish is that more law firms will consider this approach and more organizations will insist on it.

Most Attorneys Will Finally “Get It” Regarding eDiscovery: OK, that IS like asking for world peace, isn’t it?  Maybe not.  Last year, the American Bar Association (ABA) approved an important new resolution under the duty of competence (Model Rule 1.1) that requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.  And, this year, our most populated state (California), released a Formal Opinion that is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information, requiring “at a minimum, a basic understanding of, and facility with, issues relating to e-discovery”.  Hopefully, more states will follow.

Ethical obligations, along with numerous resources to educate attorneys, such as this blog and plenty of others (including the ones we’re thankful for here), will maybe eventually make a difference.  CloudNine understands that educated clients are the best clients, so that’s one of the reasons we publish eDiscovery Daily every day.  Hopefully, it won’t take retirement of the “old guard” (as some of our thought leaders have suggested) to get there.

Santa, that isn’t too much to ask, is it?  🙂

On a personal note, I’ve already gotten what I wished for.  A beautiful wife (who already got my favorite watch fixed and got me Houston Rockets tickets!) and great kids are a Christmas dream come true!

So, what do you think?  What do you want for your eDiscovery Christmas?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily is taking a break for the holidays and will return on Monday, January 5.

Happy Holidays from CloudNine Discovery!

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.

Image Isn’t Everything, Court Says, Denying Plaintiff’s Request for Imaging on Defendant’s Hard Drives – eDiscovery Case Law

In Design Basics, LLC. v. Carhart Lumber Co., 8:13CV125 (D. Neb. Nov. 24, 2014), Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff’s motion to compel “full disk imaging of Defendant’s hard drives, including Defendant’s POS server, secretaries’ computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).

In this design misappropriation case, the plaintiff filed the motion to compel, arguing “that it is entitled to a full forensic image of the defendant’s server, and every computer or computer data storage device or location used by the company and any of its employees”.  The plaintiff’s counsel stated that he litigates design misappropriation cases nationwide, and he always (except perhaps in a rare case) is granted the right to image a defendant company’s entire computer system. Judge Zwart noted that, after being afforded an opportunity to brief the issue and submit further evidence, the plaintiff’s counsel cited no cases supporting this argument.

The defendant filed a motion for protective order seeking relief from that request and arguing that it had determined that the secretaries’ computers did not contain relevant information.

In issuing her ruling denying the plaintiff’s motion to compel and granting the defendant’s motion for protective order, Judge Zwart stated:

“Plaintiff’s demand for all of the defendant’s computer data is consistent with the position of its expert, but it is not consistent with the balancing required under Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure.  Based on the arguments of counsel held today and the evidence of record, Defendant’s counsel has provided both electronic and paper copies of all blue prints, has performed Plaintiff’s requested search on the emails copied from the 11 computers, and has already invested many hours reviewing thousands of documents for privilege. Defense counsel offered to produce the nonprivileged emails to Plaintiff’s counsel for his review, and has provided dates for taking the deposition of Defendant’s president. Plaintiff’s counsel has neither reviewed the emails nor deposed anyone. This case is more than 18 months old.

In the end, the plaintiff failed to show good cause why additional computer data must be collected from the defendant. Taking into consideration the factors listed in Fed. R. Civ. P. 26(b)(2)(C), the court is convinced that allowing imaging of every computer or data storage device or location owned or used by the defendant, including all secretaries’ computers, is not reasonable and proportional to the issues raised in this litigation.”

So, what do you think?  Was the plaintiff overreaching in its request?  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.

Plaintiff Ordered to Make its Production Conform to Rule 34 – eDiscovery Case Law

In Venture Corp. Ltd. v. Barrett, 5:13-cv-03384-PSG (N.D. Cal. Oct. 16, 2014), California Magistrate Judge Paul S. Grewal ordered the plaintiffs to “(1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and (2) produce load files for its production containing searchable text and metadata” in order to conform to Rule 34 of the Federal Rules of Procedure and meet their obligation.

Judge Grewal’s rulings have been frequently referenced on this blog, most notably the Apple v. Samsung case (here’s a reference to some of the posts we had related to this case).  So, you have to love his opening to this ruling:

“Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

After Defendant James P. Barrett served initial document requests and Plaintiffs Venture Corporation Ltd. and Venture Design Services, Inc. responded, the parties met and conferred about how the Ventures would produce documents. So far, so good. But despite their best efforts, the parties could not agree. Barrett wanted the documents organized and labeled to identify the requests to which they were responsive. The Ventures demurred at such an obligation. What followed was a production of approximately 41,000 pages, even though there was nothing close to a meeting of the minds. Because this production did not square with the requirements of either Rule 34(b)(2)(E)(i) or (ii), the Ventures shall try again, as explained below.”

In this patent dispute, the parties had a dispute regarding the plaintiff’s production, after which the plaintiff “proceeded to produce, on flash drive and by email, approximately 41,000 pages. The drive and email contained no custodial index, no table, no information at all—just folders of the files themselves.”

Judge Grewal stated, “Even in the days of paper measured by the carton and large, cold-storage warehouses, the document dump was recognized for what it was: at best inefficient and at worst a tactic to work over the requesting party. Rule 34 aims to prevent such a scenario with two specific and separate requirements…Rule 34(b)(2)(E)(i) is plain: if documents are not organized and labeled to correspond to the categories in the request, they must be produced as they are kept in the usual course of business. The Ventures did not do this.”

As a result, Judge Grewal ordered the plaintiffs to “(1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and (2) produce load files for its production containing searchable text and metadata”.  The defendant had also requested sanctions in the form of attorney’s fees and costs, but that request was denied by Judge Grewal.

So, what do you think?  Was Judge Grewal correct to require the plaintiffs to label its production?  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.

“The Sheriff” is Retiring – eDiscovery Trends

Over a year ago, we covered an article in The American Lawyer by Lisa Holton about five eDiscovery trailblazing judges.  In a few days, one of those judges, John Facciola, U.S. Magistrate Judge, U.S. District Court for the District of Columbia, is retiring.

Judge Facciola’s key eDiscovery opinions include: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President (which forced preservation of digital media in government); United States v. O’Keefe (which set guidelines for keyword challenges); and Equity Analytics v. Lundin (which set guidelines for challenges or defenses of search methodology).

One of my favorite case rulings is one that we covered of his – Taydon v. Greyhound Lines, Inc. – where he laid down the law to the parties regarding the cooperation he expects moving forward on eDiscovery issues:

“III. High Noon

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation…First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.”

Judge Facciola has been an instrumental participant in the Sedona Conference, including the Cooperation Proclamation mentioned above (to download a copy of the Sedona Conference Cooperation Proclamation, click here).  He was also one of the “stars” in the documentary The Decade of Discovery, with several quotes (wearing his trademark bow-tie, of course!).

Here are some other recent articles regarding Judge Facciola worth checking out!

So, what do you think?  Do you have any stories or references to other articles about Judge Facciola that you’d like to share with our readers?  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 Challenges Continue for Government Attorneys – eDiscovery Trends

In April, we covered a benchmarking study of eDiscovery Practices for Government Agencies conducted by Deloitte – their seventh annual such study.  You don’t have to wait a whole year for an update – their Eighth Annual Benchmarking Study of Electronic Discovery Practices for Government Agencies is available now.

This time, one hundred twenty four (124) professionals across 52 government agencies participated in the survey, with attorneys comprising 69% of the respondents (the next highest group was IT professionals with 10%).  Here are some key findings in the report:

  • Internal systems and processes outweigh all other concerns when it comes to handling, processing, reviewing or producing electronically stored information (ESI), with 43% of respondents identifying it as the number one concern, up 17% from last year and more than twice the runner-up, Budgetary issues/constraints, with 21%.
  • Individual confidence is on the upswing as 79% of respondents felt as confident or more confident in their ability to manage eDiscovery in their cases as last year.  But, agency confidence is still a concern as 72% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 74% 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”.
  • Use of predictive coding is on the rise as 23% of respondents indicated having used predictive coding in any of their cases, up from 17% last year and 6% in 2012.
  • Collection from mobile devices in eDiscovery is becoming more common as 26% of respondents have collected data from smart phones or tablets in their eDiscovery matters.

These are some sample findings.  For a complete list of findings, once again available in a condensed, one-page USA Today style infographic, click here to download.  The report is 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Determines that Software License Agreement Does Not Eliminate Production Obligation of Video – eDiscovery Case Law

In Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, (E.D. Tenn. Dec. 1, 2014), Tennessee Magistrate Judge C. Clifford Shirley, Jr. granted the plaintiff’s motion to compel discovery of a video declining to require the plaintiff to view the video at the defendant’s counsel’s office or obtain a license for the proprietary viewing software, ordering the defendant instead to either produce a laptop with the video loaded on it or to reimburse the plaintiff for the cost of a software license.

Case Background

The plaintiff, an employee of the defendant, alleged that he was injured during an effort to remove a tree that was blocking railroad tracks. There was a video of the incident, captured with a RailView camera on the locomotive, and the plaintiff filed a motion to compel production of the video after the defendant refused to produce the video recording captured by the RailView camera, because of perceived licensing issues with the software used to view RailView recordings. As a result, the plaintiff filed a motion to compel production of the video and the defendant moved for a protective order.

The defendant stated “that it merely owns a license to use the software and providing a copy of the license to Plaintiff for Plaintiff’s counsel to use in viewing the video would exceed the scope of Defendant’s own license”. Instead, the defendant offered “to permit Plaintiff’s counsel to view the RailView recording at Defendant’s counsel’s office” or suggested “that Plaintiff can pay $500 to obtain its own license to use the RailView software to view the recording”.

Judge’s Ruling

Judge Shirley, in his ruling, referenced Fed. R. Civ. P. 34, which “instructs that if a requesting party does not specify a form for producing electronically stored information, then the responding party ‘must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.’” He also referenced the Comments to the 2006 Amendments which state: “Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information.” Finally, he referenced relevant case law where other railroad entities objected to production of similar video recordings, singling out Donahoo v. CSX Transportation, Inc., 4:12-CV-104-JHM-HBB, Doc. 46 (E.D. Ky. July 10, 2014), and Swoope v. CSX Transportation, Inc., 4:13-CV-307-HLM, Doc. 54 (N.D. Ga. Aug. 13, 2014) as particularly persuasive.

Finding “that the Defendant’s arguments against producing the recording are not well-taken”, Judge Shirley noted that “Police cruiser cameras, store cameras, and surveillance cameras often use unique operating software, which is almost always embedded with additional information — date, location, usage of lights or other tools — but the existence and use of this software cannot insolate against production. As noted by the court in Swoope, the Defendant certainly envisioned the recordings produced by RailView being used in litigation or other claims against it. It cannot use its choice to enter into a software agreement as a shield against producing a relevant piece of discovery, nor can it use the agreement as a basis for attaching burdensome conditions to the production of the recording.”

As a result, Judge Shirley granted the motion to compel production of the video, ordering the defendant “to either (1) provide the Plaintiff with a laptop computer loaded with the video recording and the software for viewing the recording, which would be used only for that litigation and returned after the litigation, or (2) request that the Plaintiff procure a software license and the Defendant would then reimburse Plaintiff for the costs of that license, within thirty (30) days of its procurement.”

So, what do you think? Should the defendants have been compelled to produce the video or was their proposed approach acceptable? 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.

EDRM Updates Statistical Sampling Applied to Electronic Discovery Guide – eDiscovery Trends

Over two years ago, we covered EDRM’s initial announcement of a new guide called Statistical Sampling Applied to Electronic Discovery.  Now, they have announced an updated version of the guide.

The release of EDRM’s Statistical Sampling Applied to Electronic Discovery, Release 2, announced last week and published on the EDRM website, is open for public comment until January 9, 2015, after which any input received will be reviewed and considered for incorporation before the updated materials are finalized.

As EDRM notes in their announcement, “The updated materials provide guidance regarding the use of statistical sampling in e-discovery. Much of the information is definitional and conceptual and intended for a broad audience. Other materials (including an accompanying spreadsheet) provide additional information, particularly technical information, for e-discovery practitioners who are responsible for developing further expertise in this area.”

The expanded Guide is comprised of ten sections (most of which have several sub-sections), as follows:

  1. Introduction
  2. Estimating Proportions within a Binary Population
  3. Acceptance Sampling
  4. Sampling in the Context of the Information Retrieval Grid – Recall, Precision and Elusion
  5. Seed Set Selection in Machine Learning
  6. Guidelines and Considerations
  7. Additional Guidance on Statistical Theory
  8. Calculating Confidence Levels, Confidence Intervals and Sample Sizes
  9. Acceptance Sampling
  10. Examples in the Accompanying Excel Spreadsheet

The guide ranges from the introductory and explanation of basic statistical terms (such as sample size, margin of error and confidence level) to more advanced concepts such as binomial distribution and hypergeometric distribution.  Bring your brain.

As section 10 indicates, there is also an accompanying Excel spreadsheet which can be downloaded from the page, EDRM Statistics Examples 20141023.xlsm, which implements relevant calculations supporting Sections 7, 8 and 9. The spreadsheet was developed using Microsoft Excel 2013 and is an .xlsm file, meaning that it contains VBA code (macros), so you may have to adjust your security settings in order to view and use them.  You’ll also want to read the guide first (especially sections 7 thru 10) as the Excel workbook is a bit cryptic.

Comments can be posted at the bottom of the EDRM Statistical Sampling page, or emailed to the group at mail@edrm.net or you can fill out their comment form here.

One thing that I noticed is that the old guide, from April of 2012, is still on the EDRM site.  It might be a good idea to archive that page to avoid confusion with the new guide.

So, what do you think?  Do you perform statistical sampling to verify results within your eDiscovery process?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Agrees with Defendants that Producing Medical Records in Native Form is an “Undue Burden” – eDiscovery Case Law
 

In Peterson v. Matlock, 11-2594 (FLW)(DEA). (D.N.J.Oct. 29, 2014), New Jersey Magistrate Judge Douglas E. Arpert denied the plaintiffs motion to compel defendants to produce the plaintiff's electronically stored medical records in “native readable format” after the defendants produced the records in PDF format, agreeing that the defendants had demonstrated that they would suffer an undue burden in complying with the plaintiff's request.

The plaintiff sought a native file production from a computer system that maintained medical files of prison inmates in a database application called “Centricity” from the New Jersey Department of Corrections (DOC) related to his claim that he was beaten by several correctional officers while restrained with handcuffs.  The plaintiff's medical records were previously provided in a PDF file organized in reverse chronological order, which the plaintiff claimed renders the records difficult to navigate and interpret.  According to the plaintiff, when provided in PDF format, the record is missing “the functionality, searchable data points, and metadata which are part of the electronic medical record and are available to a provider…using Centricity.”  Additionally, the plaintiff claimed that the PDF record is missing metadata stored in Centricity in the form of an "audit trail" which records changes or additions to the record.

The defendants argued that the form in which the plaintiff's records were provided is the standard output and method of production and that to produce the records in the form requested by the plaintiff “would be an inordinate drain of time and manpower” because staff from the DOC would be required to “sort through each page of the medical record and make the determination as to which category it fits into.”

Judge Arpert stated that “While Plaintiff claims the record as provided in PDF format is difficult to interpret and navigate, Defendants have demonstrated that they would suffer an undue burden in complying with Plaintiff's request to provide the records in their native format. Although the PDF record provided may be less convenient for Plaintiff, requiring staff from the DOC to sort and identify each page of every inmate medical record would create a substantial hardship and/or expense, which outweighs Plaintiff's interests in receiving the records in their native format.”  As a result, the judge found “that Defendants have fulfilled their obligation with respect to the production of Plaintiff's medical records” and denied the plaintiff’s motion to compel.

So, what do you think?  Should the defendants have been compelled to produce the data natively?  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.