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Company Should Have Preserved Personal eMails, But No Sanctions (Yet) – eDiscovery Case Law
 

In Puerto Rico Telephone Co. v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. (D.P.R. Oct. 7, 2013), Puerto Rico Magistrate Judge Bruce J. McGiverin found that “plaintiff has proffered sufficient evidence to establish that [the defendant] OneLink failed to preserve relevant emails within its control”, but denied the plaintiff’s request for sanctions at this time because of the “absence of bad faith” on the defendant's part and the plaintiff's failure to demonstrate prejudice.

In this antitrust lawsuit, the plaintiff sued several defendants, including OneLink Communications, for attempting to block its entry into the cable television market.  The plaintiff contended that OneLink engaged in sanctionable spoliation of evidence by failing to preserve relevant emails from the personal email accounts of three former OneLink officers. Because of this failure, the plaintiff sought an adverse inference instruction at the summary judgment stage and at trial.

Judge McGiverin stated that “when seeking an adverse inference instruction, the proponent of the inference must provide sufficient evidence to ‘show that the party who destroyed the document `knew of (a) the claim (that is, the litigation or the potential for litigation), and (b) the document's potential relevance to that claim.’…Such an instruction usually is appropriate "only where the evidence permits a finding of bad faith destruction,"…but bad faith is not required where circumstances indicate an adverse inference instruction is otherwise warranted”.

Continuing, Judge McGiverin noted “Here, plaintiff has proffered sufficient evidence to establish that OneLink failed to preserve relevant emails within its control. While the emails at issue come from the personal email accounts of OneLink's former officers, these officers had used their personal email accounts to manage the company for as long as seven years…OneLink presumably knew its managing officers used their personal email accounts to engage in company business, and thus its duty to preserve extended to those personal email accounts.”

However, Judge McGiverin found the “plaintiff's request for sanctions problematic on multiple fronts”.  First, he found that OneLink had not acted in bad faith because it had issued a litigation hold notice to employees within one month of the filing of the lawsuit. He also found that any “prejudice suffered by PRTC is currently speculative” since only three email chains could not be located, these three chains were not potentially damaging to OneLink, and the plaintiff had been able to acquire those chains from other sources.

He noted that the “plaintiff may renew its motion for sanctions if circumstances so warrant” if “more information regarding the extent of spoliation” was discovered, but, at least for now, denied the plaintiff’s motion for adverse inference instruction.

So, what do you think?  Should sanctions be issued when a party fails to preserve personal email?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will take a break for the holidays and will return on Thursday, January 2, 2013. Happy Holidays from all of us at CloudNine Discovery and eDiscovery Daily!

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.

Requesting Discovery in the Modern Age – eDiscovery Best Practices
 

Leave it to Craig Ball to break down requests for production of electronically stored information (ESI) in a simple and straightforward manner.

In his new article on Law Technology News (Modern E-Discovery Requests), he describes six “challenges” to “help litigators lose the boilerplate and write requests as sleek and modern as ESI itself”.

The article describes the challenges, and Craig provides some excellent examples to illustrate best practices.  Here are the challenges:

CHALLENGE 1: The definition of "document" must give way to an alternate term like "information."  Let’s face it, much of the information requested in discovery today doesn’t fit the traditional “document” format (e.g., videos, Facebook posts, texts, “tweets”, etc.).  As Craig notes, it’s not necessary to attempt to list them all and possibly miss one – the term “information” is sufficient.  Craig provides a simple example sentence here that conveys a concise, but effective way to request “information” in the request.

CHALLENGE 2: In practice, the catchalls "any and all" and "including, but not limited to" rarely serve to broaden the scope of a request, but they're lightning rods for objection.  Again, Craig provides examples verbiage that addresses the “any and all” coverage in the preface to obviate the need to cover it in each individual request.

CHALLENGE 3: When you define a term and either fail to use it or use an undefined variant, your request broadcasts your reliance on forms—it's easy to show you haven't customized your request to the case.  In other words, make sure that each request is customized and not boilerplate with regard to definition of terms.

CHALLENGE 4: Many requests fail to specify the forms sought for ESI production. Specifying "native format" isn't much better.  Specify forms of production sensibly and precisely. Don't assume that "native format" is clear or sufficient; instead, specify the formats sought for common file types.  Craig provides an excellent chart of the most common file types by file extension.

CHALLENGE 5: A well-crafted request should designate the medium of ESI production as well as the forms of production.  In other words, provide language that addresses the appropriate media for the size of production.  Again, Craig provides example wording that covers appropriate media for different sizes of productions.

CHALLENGE 6: Every electronic file has a complement of descriptive information called system metadata residing in the file table of the system or device storing the file. Different file types have different metadata… Develop a comprehensive production protocol tailored to the case and serve same with discovery. Short of that, specify the particular items of metadata and header fields you seek.  Once again, Craig provides an excellent example list of general fields to request, as well as those specific to email messages.

The examples that Craig provides are excellent illustrations of best practices for production requests and well worth checking out.  To view Craig’s article, click here.

So, what do you think?  How do you structure your production requests?   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.

Duty to Preserve Triggered When Litigation is "Imminent", Not "Reasonably Foreseeable" – eDiscovery Case Law
 

In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385,3:12-md-02385-DRH-SCW (S.D. Ill. Sept. 25, 2013), Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

In this multidistrict pharmaceutical litigation, the plaintiffs’ steering committee (PSC) sought the production of documents from a drug company’s former employee. The company claimed it deleted the documents under its records retention policy no later than November 2011, before the first lawsuit was filed in this matter. It claimed its duty to preserve did not arise until it knew that litigation was “imminent” in February 2012, when it received the first demand letter from a plaintiff.

The PSC contended that the company’s duty to preserve arose earlier and filed a motion for sanctions. After the court held a hearing on the motion, the drug company’s counsel worked with the custodian and located 40 personal e-mails from his personal e-mail account sent after he left the company that mentioned Pradaxa, the drug in question. The PSC complained that the company’s production was deficient: it wanted the company to produce more than documents that just “referenced” Pradaxa and also complained that the production was inconsistent with the custodian’s declaration that he did not have any Pradaxa-related documents in his possession. The company then asked an outside vendor to review 200 disaster recovery tapes to determine whether it could recover the custodian’s documents.

The PSC filed a motion to compel the custodial file and asked the court for “other relief that the Court deems appropriate” if it found that the file had been destroyed. It claimed the company’s “duty to preserve arose as soon as [it] had reason to anticipate pending litigation and that imminence is not required.” Here, the PSC argued that the company’s duty was triggered because of other litigation stemming from the Pradaxa clinical trials, adverse event reports, and “internet chatter” on the websites of plaintiffs’ law firms.

Judge Herndon agreed with the company and found its duty to preserve did not arise until February 2012 when it received the demand letter and “knew or should have known that litigation was imminent.” Because there was no duty, sanctions were not appropriate. Moreover, even if the duty had arisen before the file was destroyed, the PSC had not shown the company destroyed the file in bad faith and was thus not entitled to a spoliation inference. Instead, it had followed its records retention policy.

So, what do you think?  Should the request for sanctions have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog 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.

Cost-Shifting Inappropriate when Data is Kept in an Accessible Format – eDiscovery Case Law

In Novick v. AXA Network, LLC, No. 07 Civ. 7767 (AKH) (KNF) (S.D.N.Y. Sept. 24, 2013), New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

In September 2012, the court ordered the plaintiff to give the defendants a revised customer list and a list of 10 custodians whose e-mails it had to search over a 2.5 year period. Claiming the request was “excessive and burdensome,” the defendants filed a motion asking for an order requiring the plaintiff to reimburse more than $40,000 in attorney’s fees and costs. Roughly half of the fees went to an outside vendor that processed the searches, and the remainder constituted legal fees.

The defendants argued that cost-shifting was appropriate under Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). The defendants premised their argument on the fact that the search of 800 customers returned 80 gigabytes of data, but there were fewer than 400 pages of responsive documents, most of which duplicated prior discovery that the defendants had already produced. Instead, the plaintiff should have limited the search parameters and approached some of the customers to obtain the required information. In essence, the defendants argued that it was unfair “to require them ‘to continue funding unending discovery’” given the small amount at stake or to require it “‘to bear the cost of production to individual parties, if the individual parties are permitted to request every manner of production that occurs to them.’”

The plaintiff argued that cost-shifting was inappropriate because his search request was “extremely specific” and involved only 10 custodians. Moreover, the company’s outside vendor allegedly performed the search improperly. Finally, as a “‘multi-billion dollar company,’” the plaintiff argued that the defendants had a greater “ability to bear the cost.”

Here, Judge Fox found in favor of the plaintiff. Although parties are expected to bear the expense of complying with discovery requests, the court has discretion under Federal Rule of Civil Procedure 26(c) to shift the costs to protect a party from “undue burden or expense.” Under Zubulake, the court needed to determine “‘whether production of documents is unduly burdensome or expensive’” based on a consideration of “‘whether it is kept in an accessible or inaccessible format.’” Judge Fox found it was unnecessary to apply the eight-factor Zubulake cost-shifting test here because the e-mails in question were not in an inaccessible format.

So, what do you think?  Should the cost-shifting request have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog 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 Number of Pages in Each Gigabyte Can Vary Widely – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  With nearly 1,000 lifetime views, here is the fourth most viewed post all time, originally published in July 2012.  Enjoy!

_________________________

A while back, we talked about how the average number of pages in each gigabyte is approximately 50,000 to 75,000 pages and that each gigabyte effectively culled out can save $18,750 in review costs.  But, did you know just how widely the number of pages per gigabyte can vary?

The “how many pages” question comes up a lot and I’ve seen a variety of answers.  Michael Recker of Applied Discovery posted an article to their blog last week titled Just How Big Is a Gigabyte?, which provides some perspective based on the types of files contained within the gigabyte, as follows:

“For example, e-mail files typically average 100,099 pages per gigabyte, while Microsoft Word files typically average 64,782 pages per gigabyte. Text files, on average, consist of a whopping 677,963 pages per gigabyte. At the opposite end of the spectrum, the average gigabyte of images contains 15,477 pages; the average gigabyte of PowerPoint slides typically includes 17,552 pages.”

Of course, each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  So, estimating page counts with any degree of precision is somewhat difficult.

In fact, the same exact content ported into different applications can be a different size in each file, due to the overhead required by each application.  To illustrate this, I decided to conduct a little (admittedly unscientific) study using yesterday’s one page blog post about the Apple/Samsung litigation.  I decided to put the content from that page into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results:

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 10 KB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 36 KB, over 3.5 times larger than the text file;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel workbook – 128 KB, nearly 13 times larger than the text file;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word document – 162 KB, over 16 times larger than the text file;
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 211 KB, over 21 times larger than the text file;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 221 KB, over 22 times larger than the text file.

The Outlook example was probably the least representative of a typical email – most emails don’t have several embedded graphics in them (with the exception of signature logos) – and most are typically much shorter than yesterday’s blog post (which also included the side text on the page as I copied that too).  Still, the example hopefully illustrates that a “page”, even with the same exact content, will be different sizes in different applications.  As a result, to estimate the number of pages in a collection with any degree of accuracy, it’s not only important to understand the size of the data collection, but also the makeup of the collection as well.

So, what do you think?  Was this example useful or highly flawed?  Or both?  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.

Use of Model Order Doesn’t Avoid Discovery Disputes – eDiscovery Trends

In MediaTek, Inc. v. Freescale Semiconductor, Inc. (N.D. Cal. Aug. 28, 2013), when the parties could not agree on search terms, California Magistrate Judge Jacqueline Scott Corley ordered one party to run test searches before lodging objections and required both parties to meet and confer before approaching the court with further discovery disputes.

The parties in this patent infringement matter “took steps to rein in” the exorbitant expenses of e-discovery in patent litigation by adopting the Federal Circuit’s Model E-Discovery Order. The parties proposed, and the district court approved, limitations on discovery. In addition to other limitations on interrogatories and depositions, they also agreed to limits on e-mail production. Specifically, they agreed that “production would be phased to occur after basic document production, that such production would be limited to seven custodians per producing party, and that each requesting party would ‘limit its email production requests to include no more than fifteen (15) search terms per producing party for all such requests, with no more than seven (7) search terms used to search the email of any one custodian.’”

However, as the court noted, the “parties’ laudable efforts at controlling discovery costs . . . imploded.” As discovery closed, the plaintiff filed 10 joint discovery letters seeking additional discovery from the defendant; simultaneously, the defendant filed a non-joint letter to “‘preserve its right to discover [] withheld documents.’”

MediaTek asked the court to order Freescale to produce the e-mail of seven custodians based on 15 search terms and “further identified the 7 search terms to be applied to each custodian’s email as required by the stipulated ESI Discovery Order.” Freescale objected and refused to run any searches.

The court addressed certain search terms, ruling as follows:

“The search terms which are variants of the word “United States,” including “domestic,” are considered one search term. The terms”*mcf* OR *mx* OR *mpc* OR *ppc* OR *pcf* OR *sc*” are not variants of the same word; instead, each term applies to a different accused product. Accordingly, each is a separate search term. The same is true for *845* OR *331* etc.; each refers to a different patent, not a variant of the same word. Thus, for example, MediaTek’s first proposed search term (Dkt. No. 133-1 at 3) is actually six search terms.”

The judge ruled the remaining objections to search terms and date ranges premature. Although Freescale claimed the terms were overly broad, it had “not run a test search on a single identified custodian for any of the proposed searches.” If it were to do so, it might learn “that the searches will not return a disproportionately burdensome number of hits.” If, on the other hand, they returned too many irrelevant documents, then the parties needed to work together to narrow the requests.

Therefore, the court ordered MediaTek to provide amended search requests and for Freescale to run test searches before asserting that any request was too broad. If Freescale did find the requests objectionable, the parties had to “meet and confer in person.” As the court noted, the “[t]he process is designed to be collaborative, something that has not occurred up to this point.”

So, what do you think?  Should courts require producing parties to test searches before declaring them overly broad?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog 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.

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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.

If Production is Small, Does that Mean ESI is Being Withheld? – eDiscovery Case Law

In American Home Assurance Co. v. Greater Omaha Packing Co., No. 8:11CV270 (D. Neb. Sept. 11, 2013), Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

The case arose from the sale of some raw beef trim by defendant (GOPAC) to the plaintiffs (Cargill), which the plaintiffs claimed was contaminated with the bacterium known as “E. coli 0157:H7.”  The defendants filed a counterclaim related to a New York Times article that allegedly contained false information supplied by the plaintiffs that caused the defendants to lose existing and potential customers.

Among the issues addressed in this ruling was a motion to compel from the plaintiffs for “the production of e-mails and other electronically stored information that have allegedly been withheld”.  Regarding the motion, Judge Strom noted that the plaintiff “has failed to identify a specific e-mail or electronic record that GOPAC is refusing to produce. Rather, Cargill argues that the small number of e-mails produced (25) evidences a lack of diligence in production.”  With regard to the size of the production, Judge Strom stated that “the Court cannot compel the production of information that does not exist.”

The defendant provided assurances that it had turned over all ESI that its searches produced and continues to supplement as it finds additional information, offering to search available sources using search terms provided by the plaintiff, but the plaintiff “has refused to supply any additional terms”.

So, Judge Strom gave the defendant a chance to show the extent of its discovery efforts, as follows:

“It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.”

Judge Strom gave the defendant until September 30 to disclose its sources and search terms.  Perhaps more to come…

So, what do you think?  Should the judge have done more or was this an appropriate first step?   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 Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet – eDiscovery Case Law

In Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR) (N.D. Cal. July 31, 2013), California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct.  The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Case Background

The plaintiff, a shareholder in pharmaceutical company IKOR, Inc. (“IKOR”), a filed suit against the defendant and two of its officers, Dr. James Canton and Dr. Ross W. Tye, accusing the defendant of misrepresentations to induce the plaintiff to invest, breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing. The defendant brought counterclaims for breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage.

In the motion to compel, the plaintiff sought to compel the defendants’ compliance with a prior court order to compel the production of all responsive documents as well as to compel production from Dr. Canton, who objected to several of Plaintiff’s discovery requests.  The plaintiff contended that Defendants’ document productions were incomplete and that they “failed to adequately search for all responsive electronic documents”, asserting that all three defendants had produced a total of only 121 emails, 109 of which were communications with the plaintiff (including only three pages in response to a request seeking all documents relating to the defendant’s communications with a company run by three of IKOR’s principals. The “dearth of responsive documents, as well as the lack of emails from at least one key individual”, caused the plaintiff to “raise concerns about the quality of Defendants’ document preservation and collection efforts” and express concerns about possible “evidence spoliation through the deletion of emails”. The plaintiff also contended that Dr. Canton waived his objections by failing to serve a timely response.

Judge’s Ruling

Judge Nyu agreed with the plaintiff’s, noting that “Given the paucity of documents produced by Defendants to date, as well as counsel’s own acknowledgment that Defendants’ productions have been incomplete, the court shares Plaintiff’s concerns about the inadequacy of Defendants’ search for responsive documents. Defense counsel has not been sufficiently proactive in ensuring that his clients are conducting thorough and appropriate document searches, especially in light of obvious gaps and underproduction. Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete.”  She also agreed with the plaintiff regarding Dr. Canton’s objections, since he “offered no reason for his late responses”.

Judge Nyu ordered the defendants to “produce all remaining responsive documents by no later than August 26, 2013”, noting that “if there are continuing problems with their document productions, the court will order them to retain the services of an e-discovery vendor”.  Judge Nyu also granted attorney’s fees for the plaintiff’s activities “as a result of Defendants’ conduct”, albeit at a reduced amount of $5,200.

So, what do you think?  Was the sanction warranted?   Should the judge have ordered the defendants to retain an eDiscovery vendor?  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 Sedona Conference Commentary on Ethics & Metadata – eDiscovery Best Practices

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), and some of TSC’s most recent contributions have been documented in this blog, including a commentary on proportionality (released in 2010), database principles (2011) and guidance for judges (2012).  Last month, TSC’s Working Group on Electronic Document Retention & Production (WG1) released it’s Second Edition of The Sedona Conference® Commentary on Ethics & Metadata.

As noted in the Preface of the Commentary, it “focuses on the ethical considerations surrounding the inclusion and review of metadata in the non-discovery and discovery contexts.”  It is also “intended to provide practical guidance for lawyers in protecting confidential metadata and to assist the judiciary in fashioning appropriate discovery orders.”

The Commentary was first published for public comment in March 2012. Several recent significant developments in the law – including recommendations adopted by the American Bar Association House of Delegates in August of last year from the ABA Commission on Ethics 20/20 to extend a lawyer’s duty of competence beyond simply competence in the law to competence in technology relevant to advising and representing clients, along with several dozen comments from WG1 members and the general public – spearheaded the updates.

In addition to the Preface and Conclusion, the Commentary is organized into the following sections:

  • Ethics and Metadata – Basic Concepts: Defines metadata and describes the different types of metadata (e.g., Application Metadata, File System Metadata, etc.) in detail, as well as describing a lawyer’s primary four ethical duties regarding metadata.
  • A Lawyer’s Ethical Obligations Regarding Metadata in the Non-Discovery Context: Discusses topics such as the ethical duties of a lawyer sending metadata or receiving metadata (generally), discussion of bar associations’ ethics opinions prohibiting data mining by the receiving lawyer and which jurisdictions generally do and don’t prohibit data mining and at least one bar association’s suggestion that a lawyer’s duties of competence and diligence require a search for and review of metadata included in electronically transmitted documents.
  • A Lawyer’s Ethical Obligations Regarding Metadata in the Discovery Context: Discusses how discovery is different (especially for the receiving lawyer, who is not only generally allowed, but also possibly mandated to search for and examine any produced metadata) and describes in detail the ethical duties of a lawyer producing metadata or receiving metadata in discovery.
  • Multijurisdictional Issues: Focuses on multijurisdictional conflicts in which a lawyer receives metadata in the non-discovery context.
  • Mitigation: Methods for mitigating metadata (when appropriate), including scrubbing, effective management of track changes, warning about electronic redactions and agreements and orders for handling metadata.

You can download a copy of the commentary here.  As always, you can visit the TSC website at to offer your comments on the public forum pages or submit feedback by emailing them at info@sedonaconference.org.

For more on metadata mining ethics, here’s a post from 2011 on an American Bar Association regarding the topic.

So, what do you think?  How do you handle metadata in your practice?   Please share any comments you might have or if you’d like to know more about a particular topic.

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