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Electronic Discovery

Court Denies Defendant’s Request for Deposition Regarding Plaintiff’s Discovery Search Tools – eDiscovery Case Law

In Koninklijke Philips N.V. v. Hunt Control Sys., Inc., 11-3684 (DMC) (D.N.J. Apr. 16, 2014), 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.

This instant action on an intellectual property dispute concerned the defendant’s reissuance of a Notice of Deposition pursuant to Fed.R.Civ.P. 30(b)(6) for the plaintiff’s IT representative, who had already given a deposition that had been stayed by a previous court when the defendant sought to request responses from the plaintiff to eight questions “that [defendant] alleges were not adequately answered” by the IT representative. The plaintiff objected to the reissued notice during a conference, and was granted leave to file for a protective order.

The defendant claimed that the plaintiff’s discovery production was materially deficient, and outlined seven categories of documents which it alleged were missing documents, returning low portions of requested documents, or not produced at all. In support of the 30(b)(6) deposition request, the defendant submitted declarations from its IT expert which stated in part that “due to its cloud-based IT structure, [plaintiff] has available to it some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools” and yet the plaintiff “refuses to use these tools to satisfy its obligations.”  The defendant claimed that it was “entitled to the deposition to understand why and how these sophisticated tools are somehow inappropriate in spite of their clear design to accommodate eDiscovery.”

In response, the plaintiff contended that the deposition was initially stayed pending the plaintiff’s response to the eight questions the defendant claimed were not adequately answered, and not pending the defendant’s review of the plaintiff’s discovery production. It was noted that the previous court invited the defendant to “reapply” for a deposition once both parties had “met and conferred in good faith” regarding discovery, yet the defendant had simply re-noticed the deposition. The plaintiff also submitted a declaration from its IT expert, confirming that the plaintiff had answered the eight questions adequately, and that “a custodian-based approach to collecting ESI” was its usual method of discovery production.

The plaintiff requested the protective order blocking the deposition because the ESI production approach described by the defendant would be unduly burdensome, noting that its current contract with its outsourced IT provider “neither includes, contemplates, nor currently permits the type of searching and collection that [defendant] suggest[s].” Further declarations submitted by the plaintiff attested to the reasonableness of its approach to ESI production.

Judge Clark based the ultimate ruling on this motion on legal standards set forth by Federal Rule of Civil Procedure 26, which governs the scope of discovery in federal litigation and requires in part that discovery scope be limited where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” and where “the burden or expense of the proposed discovery outweighs its likely benefit.”

In reviewing the arguments from both sides, Judge Clark found that the plaintiff had adequately represented the reasonableness of its approach to ESI discovery and production, that it had demonstrated that several categories of the defendant’s claims of deficient production were “speculative and suggestive in nature,” and that the defendant had failed to demonstrate that “the benefits of the deposition would likely outweigh the burden associated with it.” In fact, the proposed deposition had “the potential to cause tremendous burden” to the plaintiff. Therefore, the plaintiff’s motion for a protective order was granted.

So, what do you think? Was the defendant’s request unduly burdensome or should they have been granted the second deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Richard G. Braman: 1953 – 2014

I learned from Ralph Losey’s excellent blog, e-Discovery Team ®, that Richard Braman, the Founder and Executive Director Emeritus of The Sedona Conference®, passed away on Monday after battling an extended illness.  He was only 60 years old.

For those of you who don’t know, The Sedona Conference® (TSC) is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. The mission of TSC is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on tipping point issues.  Richard founded the TSC in 1997 and its impact on the legal world and electronic discovery has been enormous.

Another of Ralph’s posts from a couple of years ago provides a lot of insight about TSC and Richard, as well.  In the post, with regard to electronic discovery, Ralph provides a list of 35 publications that TSC’s Working Group 1 on Electronic Document Retention and Production had (at the time) generated since 2003.  All of these publications are free from the TSC website!

That’s the number of publications just for one working group – there are nine(!) other working groups in TSC, related to everything from The Role of Economics in Antitrust to Intersection of the Patent and Antitrust Laws and Mass Torts and Punitive Damages.  You start to really get a sense of the enormous impact that TSC has had on the legal profession.

Richard is one of the “true American heroes” that Joe Looby references in his documentary The Decade of Discovery that is set to be shown at the Manhattan Film Festival next Saturday (June 21) for their contributions to the tremendous progress made over the past decade in eDiscovery practice.  In 2013, he was named by The American Lawyer as “one of the 50 most innovative people in Big Law in the last 50 years.”

Richard’s legacy will live on indefinitely through TSC and those of us in the legal industry, attorneys and technologists alike, have benefitted greatly from his influence.  The In Memoriam page on the TSC site can be found here, with two video clips of Richard from The Decade of Discovery.  His obituary and information on his memorial service can be found here.

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 Pitfalls of Self-Culling and Image Files – eDiscovery Best Practices

This topic came up with a recent client, so I thought I would revisit it here on this blog.

There’s a common mistake that organizations make when collecting their own files to turn over for discovery purposes.  Many attorneys turn over the collection of potentially responsive files to the individual custodians of those files, or to someone in the organization responsible for collecting those files (typically, an IT person) and the self-collection involves “self-culling” through the use of search terms.  When this happens, important files can be missed.

Self-culling by custodians, unless managed closely, can be a wildly inconsistent process (at best).  You’re expecting each custodian to apply the same search terms consistently and, even if IT performs the self-culling, the process may have to be repeated if additional search terms are identified later on.  Even worse, potentially responsive image-only files will be missed with self-culling.

It’s common to have a number of image-only files within any collection, especially if the custodians frequently scan executed documents or use fax software to receive documents from other parties.  In those cases, image-only PDF or TIFF files can often make up as much as 20% of the collection.  When custodians are asked to perform “self-culling” by performing their own searches of their data, these files, which could contain information responsive to the case, will certainly be missed.

With the possibility of inconsistent self-culling, the possibility of additional search terms identified later and the (almost certain) presence of image-only files, I usually advise against self-culling by custodians.  I also don’t recommend that IT perform culling on behalf of the custodians, unless they have the ability to process that data to identify image-only files and perform Optical Character Recognition (OCR) to capture text from them.  If your IT department has the capabilities and experience to do so (and the process and chain of custody is well documented), then that’s great.  However, most internal IT departments either don’t have the capabilities or expertise (or both), in which case it’s best to collect all potentially responsive files from the custodians and turn them over to a qualified eDiscovery provider to perform the culling (performing OCR as needed to include responsive image-only files in the resulting responsive document set).  Unless the case requires supplemental productions, there is also no need to go back to the custodians to collect additional data with the full data set available.

So, what do you think?  Do you self-collect data for discovery purposes?  If so, how do you account for image-only files?  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 Rules that Unilateral Predictive Coding is Not Progressive – eDiscovery Case Law

In Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL (D. Nev. May 19, 2014), Nevada Magistrate Judge Peggy A. Leen determined that the plaintiff’s unannounced shift from the agreed upon discovery methodology, to a predictive coding methodology for privilege review was not cooperative.  Therefore, the plaintiff was ordered to produce documents that met agreed-upon search terms without conducting a privilege review first.

This declaratory relief action had been plagued by delays in discovery production, which led to the defendants filing a Motion to Compel the plaintiffs to produce discovery in a timely fashion. Following a hearing, both sides were ordered to meet and confer, and hold meaningful discussions about resolving outstanding ESI issues pursuant to discovery. The plaintiff contended that the defendant’s discovery requests, as standing, would require them to produce approximately 1.8 million documents, which would be unduly burdensome. Both parties agreed to search terms that would reduce the number of potentially responsive documents to around 565,000, which the plaintiff would manually review for privileged documents before producing discovery to the defendant.

Shortly thereafter, the plaintiff determined that manual review would be too expensive and time-consuming, and therefore after consulting with a “nationally-recognized authority on eDiscovery,” elected to apply predictive coding to the identified 565,000 documents. Plaintiff selected a software program that they began using to identify relevant documents with the intention of applying a further predictive coding layer in order to determine which documents were “more likely privileged” and which were “less likely privileged.”

However, the plaintiff did not consult with either the court or the requesting party regarding their intentions to change review methodology. As a result, the defendant objected to the use of predictive coding in this case for several reasons, including the plaintiff’s lack of transparency surrounding its predictive coding methodology and its failure to cooperate, as well as the plaintiff’s failure to adhere to the best practices for the chosen software program which were recommended to them by the authority they chose. Finally, the defendants cited a likelihood of satellite disputes revolving around discovery, should the plaintiff proceed with the current predictive coding, which would further delay production discovery that had already been “stalled for many months.”

The defendant requested that either the plaintiff be required to proceed with predictive coding according to the defendant’s suggested protocol, which would include applying the predictive methodology to all of the originally collected 1.8 million documents, or that the plaintiff produce the non-privileged keyword hits without any review, but allowing them to be subject to a clawback order—which was a second option included in the originally stipulated ESI protocol that both parties had agreed to. Although this option would shift the burden of discovery to the defendant, it was noted that the defendant was “committed to devot[ing] the resources required to review the documents as expeditiously as possible” in order to allow discovery to move forward.

Judge Leen acknowledged potential support for the general methodology of predictive coding in eDiscovery, and stated that a “transparent mutually agreed upon” protocol for such a method would likely have been approved. However, Judge Leen took issue that the plaintiff had refused to “engage in the type of cooperation and transparency that its own eDiscovery consultant has so comprehensibly and persuasively explained is needed for a predictive coding protocol to be accepted by the court or opposing counsel” and instead had “elected and then abandoned the second option—to manually review and produce responsive ESI documents. It abandoned the option it selected unilaterally, without the [defendant’s] acquiescence or the court’s approval and modification of the parties’ stipulated ESI protocol.”

Therefore, Judge Leen elected to enforce the second option described in the agreed-upon ESI protocol, and required the plaintiff to produce all 565,000 documents that matched the stipulated search terms without review, with a clawback option in place for privileged documents as well as permission to apply privilege filters to the documents at issue, and withhold those documents that returned as “most likely privileged.”

So, what do you think? Should parties need to obtain approval regarding the review methodology that they plan to use?  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.

Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant – eDiscovery Case Law
In the criminal case of United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV) (N.D. Cal. Apr. 8, 2014), 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.

The Government had voluntarily created the database to manage the vast quantities of documents being produced for discovery in this action, “because it was in its interest to do so”. An agreement had been negotiated between the parties that would allow the defendants to access the database and review discovery documents, and to employ third-party “project managers” for technical and substantive support.  Although the parties stipulated that the database has been “completed” in January of 2013, after more than 9 million documents had been uploaded, the defendants did not gain access until February of 2014.

At some point after beginning to work with the database, the defendants came to realize that not all of the documents produced in the action had been uploaded. Specifically, absent from the database were the contents of three hard drives, and 159 boxes of hard copy material amounting to nearly 1 million pages of documents. Defendants filed a motion to compel the Government to add the missing documents to the database, but, during a hearing on the motion to compel, the Government voluntarily offered to upload 2 of the 3 hard drives, and scan the hard copy materials into the database, asking that they not be ordered to do so.

Following this commitment, the Government indicated for the first time during the proceedings that “the ‘extra cost’ associated with this ‘voluntary’ commitment would draw down on the $1.8 million budget that had been allocated to Database, and ‘for this reason, we anticipate funding for the Database will end” four months from that point. Further, the Government stated that they had looked into “new – and more expensive – alternatives,” namely that they would expend resources to have the materials uploaded to the database within 2 months, and that the defendants would have 2 months to access and review the “old” documents plus the new material, at which point the database would be “transferred to a Concordance database that Defendants could maintain at their own cost.”

The defendants objected to this proposal, and Judge Vadas ordered the Government to provide more information about the effects of transferring the documents to a Concordance database. The Government declared that the cost of the transfer alone would be $118,000, and that it would take 6 to 8 weeks to complete. Further, the Government explained that due to the transfer, some user-created metadata would no longer be viewable or searchable, specifically including “(1) Database user actions (‘audit history’); (2) user searches including save search syntax; (3) image annotations; and (4) Database ‘artifacts’ such as batches, views, or layouts.” The defendants responded that they would “lose our saved searches compiled in files within the database, the very work that we have spent months and many hours putting together. These files essentially represent the virtual entirety of the defense work on the data base.”

Aside from these concerns, when asked when it first explained the possibility that the database could “wind down” before trial, the Government “could not point to a single instance where it had actually informed Defendants that this was a possibility.” Instead, the Government claimed that the “projected” two-year project duration should have been understood by the defendants to have been calculated based on the start of the project in June 2012, rather than the completion of the database as the defendants assumed.

Judge Vadas noted that if the Government had indicated that the database might be shut down prior to trial, and taken this position “when it broached the possibility of using the Database to manage discovery in this case, Defendants would have objected strenuously.” Ultimately, Judge Vadas found that since the Government had “chose to use an eDiscovery platform for this action, selected and managed the eDiscovery provider, and negotiated and agreed to Terms and Conditions for Access to the Database with the Defendants,” and that the Government had never disclosed that the database might wind down, “that winding down the Database before Defendants are ready for trial in December 2014 would prejudice Defendants’ ability to prepare for trial and would offend the court’s notion of fairness.” Therefore, the Government was ordered to continue to pay for the database through December 2014, and to continue providing the services agreed to in the Terms and Conditions.

So, what do you think? Should the Government have been required to continue to pay for the database, or should exporting it to a Concordance database for the defendants to use have been sufficient? 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 at the Movies – eDiscovery Trends
While we don’t have Siskel & Ebert around to review movies anymore, there is a new documentary that will certainly merit review by many eDiscovery professionals out there.

The Decade of Discovery was written and directed by Joe Looby, who, according to his LinkedIn profile, served in the U.S. Navy’s Judge Advocate General Corps, practiced as an environmental enforcement attorney for New York state and was a founder of the forensic technology practices at Deloitte and FTI.  His film production company is called 10th Mountain Films, named in honor of his father, who served in the 10th Mountain Division, a U.S. Army ski patrol that fought in World War II.

As noted in Law Technology News (E-Discovery Hits the Silver Screen, written by Monica Bay), Looby’s 61-minute film has already premiered last Saturday in Middletown, N.Y., at the  Hoboken International Film Festival and is also set to be shown at the Manhattan Film Festival on June 21.

Described as a “documentary about a government attorney on a quest to find a better way to search White House e-mail, and a teacher who takes a stand for civil justice on the electronic frontier”, Looby notes in a radio interview with the Mid Hudson News that the documentary includes comments by “a government attorney, a teacher, seven judges and two professors”, which includes several well-known names in eDiscovery: U.S. District Judge Shira Scheindlin, of the Southern District of New York, Jason R. Baron, former director of litigation for the U.S. National Archives and Records Administration and now of counsel at Drinker Biddle & Reath, and Richard Braman, founder and executive director emeritus of The Sedona Conference, among others.  Looby refers to those who have advanced tremendous progress made over the past decade in eDiscovery practice as “true American heroes”.

Consider this:

  • When the President of the United States leaves office, White House emails generated during that president’s term cannot be released to the general public (via the US National Archives) until they are reviewed and declassified,
  • When Bill Clinton left office in 2001, there were 32 million emails to be reviewed and declassified,
  • That number rose to over 200 million emails when George W. Bush left office in 2009,
  • And is expected to rise to over 1 billion emails once Barack Obama leaves office at the end of his term.

The movie addresses the considerable advancements to address problems like this in both the government and litigation arenas.

Here is a link to the trailer for the movie – it looks very interesting and informative.  Hopefully, the movie will eventually be shown or available via a nationwide outlet (Netflix, anyone?) for those of us not in the Manhattan area.

So, what do you think? Is this a movie you would like to see? 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.

Here’s a Chance to Help Shape the Future of Information Governance – eDiscovery Trends

Back on Valentine’s Day, we discussed the launching of the Information Governance Initiative (IGI), a cross-disciplinary consortium and think tank focused on advancing information governance.  The IGI has been busy, with two of its co-chairs, Bennett B. Borden & Jason R. Baron, having written a recent report on predictive analytics for information governance.  Now, the IGI is inviting you to help shape the future of information governance by participating in the IGI’s 2014 Annual Survey.

As noted on their blog, one of the IGI’s major projects this year is their 2014 (and first!) IGI Annual Report, “which will strive to provide much-needed clarity on IG concepts, definitions, markets, and practices”. As part of their research for the report, IGI is conducting a survey of information governance professionals.

As they note on their blog, the survey should take less than 15 minutes to complete (it took me about 10-12 minutes).  The survey asks a number of questions related to your role in information governance and how your organization handles IG, as well as questions regarding the future of information governance.  A link to the survey is available here.

According to Barclay Blair, founder & executive director of IGI, the deadline for taking the survey is June 15, with the results expected to be published on August 4.  Barclay also noted that IGI will also be reporting out on a series of benchmarking interviews that they are conducting right now with working IG practitioners.  Sounds like plenty of information to come!

With information governance clearly identified as the most widely discussed topic at this year’s LegalTech New York show (reflected by our recent thought leader interview series), the efforts of IGI will bear watching.  If you’re an information governance professional and want to make your voice heard, this survey is your chance!

So, what do you think? How does your organization handle information governance? 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.

Plaintiffs Denied Motion to Depose Defendants Regarding ESI Processes Prior to Discovery Requests – eDiscovery Case Law

In Miller v. York Risk Servs. Grp., No. 2:13-cv-1419 JWS (D. Ariz. Apr. 15, 2014), 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.

This action involves two claims against the defendant revolving around workers’ compensation benefits: (1) that the defendant “fraudulently denied [plaintiffs’] workers’ compensation benefits in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),” and (2) that the defendant aided and abetted the plaintiffs’ employer or former employer with a “breach of its duty of good faith and fair dealing” by denying the claims. In filing the Motion to Compel, the plaintiffs sought a wide ranging inquiry pursuant to Rule 30(b)(6) that would enable them to “tailor their discovery requests to avoid potential disputes over what may be discovered” by deposing the defendant regarding their process of storing and maintaining ESI.

The plaintiffs contended that other courts have “allowed discovery of the very sort they seek” for the purpose of tailoring discovery requests, and cited several appellate decisions to reinforce the contention. While most of the decisions cited by the plaintiffs were from trial courts in other circuits, two of the district court cases cited were within the Ninth Circuit—specifically, Great Am. Ins. Co. v. Vegas Constr. Co., Inc., and Starbucks Corp. v. ADTSec. Services, Inc.

In reviewing these appellate decisions, Judge Sedwick noted that the first cited Ninth Circuit case was inapplicable, as it discussed extensively “a corporation’s duty to identify and prepare a witness for a Rule 30(b)(6) deposition, but nothing in the opinion suggests that the case involved any request to conduct discovery into the manner and methods used by the defendant to store and maintain electronic data.” Regarding the second case, it was noted that the plaintiffs had in fact submitted a substantive request for discovery prior to the court ordered Rule 30(b)(6) deposition, which only attempted to conclude whether the discovery would actually be “unduly burdensome and difficult to retrieve,” as the defendants alleged.

Therefore, Judge Sedwick stated that the cited decisions were inconclusive in determining “whether starting the discovery process with a wide ranging inquiry into the manner and method by which a party stores and manages ESI is a helpful and appropriate approach to obtaining substantive information,” and therefore starting discovery with an inquiry as requested by the plaintiffs “puts the cart before the horse and likely will increase, rather than decrease, discovery disputes.” Hence, the plaintiffs’ Motion to Compel was denied.

So, what do you think? Are there circumstances under which taking depositions prior to discovery would be helpful and appropriate? Should depositions be reserved for resolving discovery disputes, rather than preventing them? 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.

Everything You Wanted to Know about Forms of Production, Don’t Be Afraid to Ask – eDiscovery Best Practices

Last week, we discussed the upcoming Georgetown E-Discovery Training Academy, which will be held starting this Sunday and mentioned in Craig Ball’s excellent blog, Ball in Your Court.  His latest post offers a very comprehensive guide to forms of production that covers all aspects of forms of production from the different types of forms to how to request electronically stored information (ESI) from opposing counsel.

The Lawyer’s Guide to Forms of Production, described by Craig as a “public comment” and “beta” version, “explains the significance of forms of production and lays out options to guide the reader in making sensible selections. It seeks to help lawyers eschew the wasteful and outmoded practice of downgrading digital information to paper-like forms and, instead, embrace forms that function—that is, forms of production that preserve the integrity, efficiency and functionality of digital evidence.”

It’s a 46 page Guide, with another 20 pages of attachments, and covers numerous topics, including:

  • Growing Tension between parties striving to receive productions in useful formats and producing parties seeking to “downgrade” the production format to paper-like images;
  • Options for Forms of Production including Paper, Images, Native, Near-Native (such as enterprise e-mail, databases and social networking content which can’t be produced as-is) and Hosted Production (more frequently, parties turn over access to ESI in a hosted application, typically cloud-based);
  • Federal Rules handling of forms of production, including Rule 34(b)(1)(C) of the Federal Rules of Civil Procedure which allows a requesting party to “specify the form or forms in which electronically stored information is to be produced”;
  • Learning the Language of Forms where Craig breaks down a fictional example of a typical production proposal from opposing counsel and the pitfalls of the proposed formats;
  • Load Files, what they are, different format examples, and how they are used;
  • The Case against Native Format and how each component of the case is debunked;
  • The Case against Imaged Production and at least half a dozen “needless” expenses associated with it.

Craig also covers best practices for crafting production requests that are modern and clear and “cut the crap” of “including, but not limited to” and “any and all” that “don’t add clarity” and are “lightning rods for objection”.  He addresses Bates numbers, redaction and “exemplar” production protocols (in Appendices 2 and 3).  And, many other topics as well!  It’s a very comprehensive guide that covers introductory and advanced topics alike to help lawyers develop a much better understanding of how ESI is stored, organized and should be requested.

You can download a copy of the guide in PDF format here.  It will be interesting to see what feedback Craig gets on his “beta” version.

So, what do you think? Have you dealt with forms of production disputes with opposing counsel?  If so, how did you resolve them?  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.

Defendants – and Defendants’ Counsel – Sanctioned for Delays in Producing ESI – eDiscovery Case Law
In Knickerbocker v Corinthian Colleges, Case No. C12-1142JLR, (WDWA, April 7, 2014), Washington District Judge James L. Robart imposed sanctions against the defendants and the defendants’ counsel for their delays in producing Electronically Stored Information (ESI) during discovery, despite the fact that spoliation of evidence was ultimately avoided.

This workplace discrimination, harassment, and retaliation action involved three plaintiffs who were former employees of the defendants, and had been terminated from their positions. The plaintiffs filed first and second motions for sanctions, alleging in the first that the defendants had failed to preserve evidence, and in the second that the defendants had shown bad faith in their subsequent delay in producing evidence.

During discovery, the plaintiffs first expressed concern over the defendants’ “meager document production,” prompting several discovery conferences and correspondences between the counsel for the plaintiffs and the counsel for the defense. Eventually, the defendants’ counsel represented that as per the defendants’ policies, the plaintiffs’ email accounts had been deleted 30 days after their termination. Further, counsel stated regarding backup sources that the relevant ESI “could not be extracted without shutting down the servers; in other words, it was not extractable.”

Owing to the defendants’ apparent failure to preserve evidence, plaintiffs filed a motion to compel responses to particular discovery requests. In response, both parties stipulated to an order requiring that the defendant conduct a “full and complete search” at its own expense for all responsive documents, including “documents on backup servers.” The defendants complied and submitted more documents with a Verification of Compliance with Stipulation and Order Compelling Further Discovery, which stated in part that the defendants had conducted a complete search “on all available electronic sources and/or servers.”

After reviewing the defendants’ production, plaintiffs continued to allege that evidence had not been adequately preserved and collected. Further questioning revealed that although the defendants had issued litigation holds in previous litigation actions against them, they had not issued a litigation hold in this particular case. While the defendants’ previous policy had been to issue a company-wide notice to halt destruction of ESI, with respect to this case, the defendants claimed to have selected certain employees and asked them to retrieve and retain relevant documents. Yet in depositions, the employees at issue stated that they “had not searched, did not recall searching, and had not been asked to search for documents relevant to the litigation.”

At this point, the defendants’ total document production had consisted of only 1,272 pages. Defendants claimed that the document search was sufficient, alleging that the plaintiffs’ email accounts had been deleted prior to notification of pending litigation, thus before the duty to preserve had been triggered. However, the defendants admitted that the emails at issue existed on its backup tapes, but argued that they were not required to produce them because “the Stipulated Order only referred to backup ‘servers’, not backup ‘tapes’, and retrieval of information on the backup tapes would require ‘unreasonable’ cost and effort.”

Facing sanctions for spoliation, the defendants counsel changed their tune and represented that they were not only able to access the backup tapes and solve the spoliation issue, but that the total expense of producing the relevant ESI would be “a thousand dollars per day of recovery time,” and that the expenses would not be as great as previously warranted. Citing the counsel for the defendants’ representation that expenses would not be burdensome, Judge Robart deferred ruling on the plaintiffs’ most recent motion in favor of issuing an order to compel production specifically from the backup tapes.

Briefly summarized, the defendants far exceeded the time limit set for discovery production over a series of delays, difficulties, and missed deadlines, as the backup tapes were alternately reviewed and documents extracted by a third party vendor and the defendants themselves. Ultimately, an additional 3,000 emails were produced from the backup tapes, with the bulk of the production delivered 7 weeks after the final deadline.

Judge Robart found that the defendants had acted in bad faith, specifically stating that “there is clear and convincing evidence showing that [defendants] and [defendants’ counsel] have refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith…[t]herefore, sanctions are warranted.” The defendants were sanctioned in the amount of $25,000, and the defense counsel was sanctioned another $10,000.

So, what do you think? Does this case demonstrate clear bad faith, or simply incompetence on behalf of counsel? Should sanctions be ordered in cases where spoliation of evidence has ultimately not occurred? 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.