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Evidence

eDiscovery Trends: Is eDiscovery Malpractice More Widespread Than You Think?
 

Last month, we discussed the eDiscovery malpractice case filed against McDermott Will & Emery for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.  This case is still continuing to generate much buzz in the eDiscovery community and I’m sure it will be closely followed as it progresses.

At least one attorney from another firm has weighed in on the possibility of eDiscovery malpractice in other cases.  Dennis Kiker, a partner with LeClair Ryan noted in their blog The e-Discovery Myth that eDiscovery malpractice is probably more widespread than most people think.  Among his observations:

  • “E-Discovery is a discipline.  Far too many attorneys in firms large and small think that e-discovery is something they can do on the side, when they are not drafting motions to dismiss an antitrust class action or preparing to depose a scientist in a patent infringement matter.  Unfortunately, this is simply not true.”
  • “[E]-discovery goes far beyond the rules.  It is one thing to understand that there are different possible forms of production permitted for electronically stored information under Rule 34, and quite another to know how to effectively and defensibly identify, preserve, collect, process, review and produce ESI.”
  • “Not even IT professionals pretend to understand all of the different information systems that exist in a single company.  Do we really expect every trial attorney to have greater expertise and understanding than the professionals that work in the field every day?”
  • “A large document review is, by definition, a large project requiring significant project management skills… In short, this is a complex, high-risk task that requires specialized skills and experience.  It is not something one does once a year and gets good at.”
  • “Malpractice claims are just one of the possible consequences of practicing in a complex area without the requisite expertise.  Loss of client goodwill, damaged reputations for lawyer and firm alike, monetary sanctions – all of these are the dancing partners of those that believe that e-discovery is something that every litigator knows how to do.”

It’s an excellent post with a number of good points.  There are some attorneys who have really worked hard at developing their eDiscovery expertise and knowing when to rely on others with the expertise they don’t have.  But, as I have observed, there are many attorneys that have tried to play “part-time eDiscovery expert” with less than terrific results (at best).  In many cases, their saving grace is that the opposing attorney is equally inept when it comes to eDiscovery best practices.

So, what do you think? Is eDiscovery malpractice more widespread than we think? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Social Media Posts Deemed Discoverable in Personal Injury Case

A Pennsylvania court recently ordered the plaintiff in a personal injury lawsuit to disclose social media passwords and usernames to the defendant for eDiscovery.

On May 19, the court ruled in favor of a motion to compel the plaintiff in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) to disclose his usernames, login names and passwords for Facebook and MySpace accounts that contained hidden or private posts. Discoverability of social media continues to be a hot topic in eDiscovery, as eDiscovery Daily has noted in summaries of prior cases here, here and here that reflect varied outcomes for requests to access social media data.

In Zimmerman v. Weis Markets, Inc., the court ruled in favor of the defendant’s motion for several reasons involving the plaintiff’s use of public social media as well as the circumstances of the case:

  • The plaintiff’s public postings on the social media sites in question included discussion of his injury, which was deemed relevant to his claim of serious and permanent impairment. These public postings were construed by the court as sufficient to demonstrate likelihood that his non-public postings would also contain relevant information about his injury.
  • Although, the court did not wish its decision in this matter to be viewed as authorizing “fishing expeditions” to private social media accounts in personal injury cases in general, it reasoned that since examination of the public portions of the plaintiff’s Facebook and MySpace accounts turned up relevant evidence on the subject of the plaintiff’s injury, discovery of the remaining private postings was also likely to do so.
  • The court also reasoned that the plaintiff’s choice to bring this issue to trial, as well as his decision to share information about his injury online (showing pictures of him in shorts with his scar visible, as well as recent pictures with his motorcycle), meant that he could not have a reasonable expectation of social media privacy.

Although courts often permit eDiscovery of private and hidden social media postings, this decision by the court illustrates a need for relevance of the evidence to be shown before that permission is granted.

So, what do you think? Was the court wrong in allowing eDiscovery of personal Facebook and MySpace accounts, or does the plaintiff in a personal injury case waive his right to social media privacy? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Protocol for International eDiscovery Based on 41 Year Old Treaty
 

Last week, we talked about several challenges of international eDiscovery, including different laws regarding discovery practices, as well as cultural and privacy issues.  This week, we will talk about one of the primary mechanisms for conducting discovery internationally – the Hague Convention.

What is the Hague Convention? The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters – commonly known as the Hague Evidence Convention – is an international treaty created by the Hague Conference on Private International Law. It was negotiated in the late 1960's and signed on March 18, 1970.

There are 54 countries contracted to the Hague Convention, which means they have agreed to permit international attorneys to request evidence across foreign borders without first requiring that they pursue diplomatic approval. U.S. attorneys often rely on the provisions of the Hague Evidence Convention when conducting cross-border eDiscovery requests. As a result, they can save time and paperwork by avoiding consular and diplomatic channels and corresponding directly with legal counsel and individuals in international countries where the Hague Convention has been ratified.

Although it can simplify the process of requesting eDiscovery across borders, the Hague Convention does not guarantee that international discovery requests will be honored, in part or at all. Foreign courts in receipt of discovery requests will often exercise their own judgment in responding, based on the laws of their own nation states. As a result, eDiscovery requests may be refused or misinterpreted without any penalty under the Hague Convention. What's more, some of the countries that have signed choose to exert limits on the extent to which they agree with the Hague Convention, further complicating matters in cases where international eDiscovery is required from groups or individuals within these nations' borders. Use of the Hague Convention may be slow, inefficient, and does not guarantee results.

The U.S. was instrumental in the creation of the Hague Convention and one of the first countries to adopt it.  However, many international parties requesting information in the U.S. now do so via Section 1782 Discovery. This simpler provision in Section 1782 of Title 28 of the United States Code facilitates discovery cases where a document or electronic information is located in the U.S.  We will talk about this federal statute in more detail in our next post regarding international eDiscovery.

So, what do you think? Does the Hague Convention simplify the discovery process internationally, or is it time for a new, more up-to-date treaty or provision to facilitate international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

Happy Independence Day from all of us at eDiscovery Daily and Trial Solutions!

eDiscovery Case Law: Discovery Violations Result in Sanctions Against Plaintiff and Counsel

Yesterday, we reported on a case with no sanctions; today, we report on a case with a different outcome.

Both the plaintiff and plaintiff’s counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

In Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011), the plaintiff moved to voluntarily dismiss its case with prejudice. The defendants did not argue against dismissal but did seek sanctions from the plaintiff based on what they considered to be “a pattern of sanctionable discovery misconduct.” The court ruled that discovery abuses had occurred, and fined the plaintiff and plaintiff’s counsel $137,168.41 “jointly and severally”. The misconduct of the plaintiff, Play Visions, Inc., included:

  • Misrepresentation of Available Documents: Play Visions claimed that all relevant documents were kept in hard copy only; however, deposition of Play Visions’ CFO revealed that electronic records existed that should have been presented months earlier under discovery.
  • Falsified Expert’s Report: The plaintiff’s expert report was prepared by plaintiff’s counsel Mark Lorbiecki and only signed and “approved” by the expert. In addition, the court discovered that the plaintiff had violated the court’s protective order by revealing confidential information to the same expert witness.

As a result of these misrepresentations and discovery abuses and others, the court ruled for the defendant’s motion and demanded the plaintiff and its counsel pay sanctions:

  • The court found that Play Visions, Inc. had falsely certified that all relevant records had been saved in paper format and delayed the search and production of documents. Play Visions’ counsel was found to have been negligent in familiarizing himself with Play Visions’ document practices and to have failed in assisting his client in mandatory discovery.
  • Accordingly, the court considered every case where the defendant was forced to do extra work as a result of the plaintiff’s delays and inaccuracies, and fined Play Visions, Inc. and its counsel $137,168.41 jointly and severally, due within 15 days of the order.
  • Not finding “that the discovery violations in this case merit finding the entire case exceptional under 35 U.S.C. § 285”, the court ruled against shifting any attorney’s fees in this case.  Otherwise, the sanctions award could have been even higher!

So, what do you think? Do the discovery violations committed by Play Visions and by its attorney demand monetary sanctions on this scale? Did Play Visions actually believe that they had no relevant electronic files?  Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: The Challenges of International eDiscovery
 

Litigation would be simpler if business never crossed international boundaries, but it often does. Global corporations have dozens of offices and thousands of employees scattered around the world, while smaller businesses may outsource call center work or manufacturing to China, India, or other countries that offer inexpensive labor.

As a result, eDiscovery can be complicated by international laws and the regulations regarding discovery across national borders, as well as the usual questions that affect legal discovery within the United States. Even if US courts have jurisdiction over entities from other countries and the Federal Rules of Civil Procedure apply to discovery requests, there are still several issues and challenges associated with international eDiscovery, including:

  • Location of Data: Thanks to the widespread use of cloud computing and other types of online storage, the physical location of ESI sought in eDiscovery is not always easy to pinpoint. Information transmitted electronically in an email or text message, can pass through any number of phone lines and routers, to many servers and client machines around the globe, so determining the location of a message can become virtually impossible. As a result, it can be difficult to know which nation's laws on eDiscovery should be applied, much less how to execute them.
  • Expense: Due to the complexity of requesting eDiscovery through foreign channels, and under the legal restrictions imposed by foreign governments, the cost of tracking information across international borders is much higher than eDiscovery conducted solely within the US.
  • International Law: Every nation has its own laws and regulations surrounding electronic data and discovery practices, so it's important to understand legislation in the relevant countries and, when appropriate, take measures to contact the proper authorities before moving forward. Discovery practices that are common and legal in the US can be considered criminal in some other countries, so it’s critical to have foreknowledge of the laws and rules you'll be facing.
  • Cultural Issues: Along with variations in international law comes the difficulty of rationalizing the need for eDiscovery to foreign countries who may have different views on privacy. In a country where pretrial discovery is not the norm, the request for eDiscovery may be a strange and unwelcome concept that can often result in misunderstandings and non-compliance. Explaining American laws and customs becomes a vital role of any attorney seeking international eDiscovery.

In future posts, we will be discussing international eDiscovery issues in more depth, including the Hague Convention, privacy protection laws, blocking statutes and other challenges to eDiscovery abroad.

So, what do you think? Have you experienced these same issues, or are there other challenges you've faced in international eDiscovery? Please share any comments you might have, or let us know if you'd like to know more about a particular topic.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

In Weatherford U.S., L.P. v. Chase Innis and Noble Casings Inc., No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011), the court ruled to allow the plaintiff to select and hire a forensic expert at its own expense to conduct imaging of the defendants’ hard drives. The purpose of this investigation was to discern whether or not confidential data that was downloaded from the plaintiff’s computers was, in fact, used in the building of the defendants’ own oil services firm.

Although the judge noted that courts are generally “cautious” in authorizing such hard drive imaging, this motion was substantiated by the defendant, Innis’s, “acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission.” The court believed that circumstances of the case warranted further investigation into the defendant’s computer history:

  • The plaintiff, Weatherford US LP, had previously alleged that Chance Innis, a former employee, had downloaded confidential and proprietary information and used it to his advantage in starting his own competing company, Noble Casing Inc.
  • Innis had admitted to returning to Weatherford US offices late in the evening of the day he was terminated and downloading files onto a thumb drive without permission. Two weeks later, he launched his own competing oil services company, the co-defendant in this case, Noble Casing Inc. However, Innis maintains that he did not later access the files stored on his thumb drive and never used them in the process of starting his own company.
  • Contrary to these assertions, forensic examination of the thumb drive showed that the files were later accessed; whether or not they were instrumental in the startup of Noble Casing Inc. remains in question.
  • The plaintiff requested access to the defendant’s computers in the pursuit of previously subpoenaed documents, proposing that they select, hire, and pay for the services of a forensic investigator to image the defendants’ hard drives.
  • The defendants objected, proposing instead that an expert be chosen in agreement by all parties.
  • The court ruled in favor of the plaintiff’s motion in this instance, agreeing that all materials imaged will be shown to the defendant to screen for privilege before being shared with the plaintiff.
  • The court maintained that it is not unusual for imaging of hard drives to be allowed by the court in cases such as this, “particularly in cases where trade secrets and electronic evidence are both involved.”

So, what do you think?  Do you agree that Weatherford should have been allowed to examine images of the defendants’ hard drives, or should Innis’ privacy and that of his company have been protected?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 

Normally, eDiscovery Daily reports on cases related to eDiscovery issues after the decision has been rendered.  In this case, the mere filing of the lawsuit is significant.

Friday, we noted that competency ethics was no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain.  An interesting article from Robert Hilson at the Association of Certified eDiscovery Professionals® (ACEDS™) discusses what may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.  A copy of the article is located here.

J-M Manufacturing Co., Inc., a major manufacturer of PVC piping, had hired McDermott to defend against civil False Claims Act charges concerning the quality and sale of its products to federal and state governments. After the case was filed in January 2006, it remained under seal for nearly three years.  According to the complaint, during that time, a large-scale document review ensued (160 custodians) and McDermott hired Stratify, an outside vendor, to cull through the ESI.

J-M retained Sheppard Mullin Richter & Hampton to replace McDermott in March 2010.  Why?  According to the complaint, McDermott worked directly with the Assistant US Attorney to develop a keyword list for identifying responsive ESI, but, despite this effort, the first production set was returned by the government after they found many privileged documents. The complaint indicates that McDermott and its contract lawyers then produced a second data set again with a large number of privileged documents even though it was filtered through a second keyword list.

J-M contends in the complaint that McDermott's attorneys “performed limited spot-checking of the contract attorneys' work, [and] did not thoroughly review the categorizations or conduct any further privilege review.”  After Sheppard replaced McDermott on the case, they asked for the privileged documents to be returned, but the “relator” refused, saying that McDermott had already done two privilege reviews before giving those documents to the government and, therefore, J-M had waived the attorney-client privilege. In the complaint, J-M contends that 3,900 privileged documents were erroneously produced by McDermott as part of 250,000 J-M electronic records that were reviewed.  It is unclear from the complaint whether McDermott provided the contract reviewers themselves or used an outside provider.  It will be interesting to see how this case proceeds.

So, what do you think?  Have you experienced inadvertent disclosures of privilege documents in a case?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Cut and Paste Makes the Cut as Evidence
 

In United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), the defendant in a criminal case appealed his conviction and raised the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, posing as a male living with his girlfriend and his girlfriend's 14–year–old daughter, conducted instant message (IM) online chats with Keith Lanzon that led to Lanzon being arrested and charged with violating 18 U.S.C. § 2422(b), which provides that:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Detective Clifton saved these conversations by copying the IM communications and pasting them into a Microsoft Word document, saving the Word document to a “floppy” disc, for printing in transcripts. While Detective Clifton did not save any of the IM conversations in their original format, he did compare the actual IM "chat screens" to the Word document he had created to verify that the Word document exactly matched the IM conversations.

At trial, the prosecution introduced the Word document with the cut-and-pasted IMs, and Lanzon was convicted.  Lanzon appealed to the US Eleventh Circuit Court of Appeals, claiming, inter alia, that the document was improperly admitted, and that the admission of the document violated the Due Process Clause and the Best Evidence Rule.  Lanzon also argued the transcripts violated the rule of completeness in FRE 106 claiming that Detective Clifton failed to include the entire chat transcript, including only the edited portion that supported his case.  FInally, Lanzon claimed that the prosecution failed to properly authenticate the Word document.

The Eleventh Circuit found that Lanzon failed to prove bad faith by the government in failing to preserve the original IMs. The court also rejected Lanzon's rule of completeness argument, finding that “There is no indication that additional parts of the conversation exist.”

As for the failure to authenticate claim, the Eleventh Circuit also rejected that claim, finding that “Evidence may be authenticated through the testimony of a witness with knowledge. FRE 901(b)(1). The proponent need only present enough evidence "to make out a prima facie case that the proffered evidence is what it purports to be.”

A copy of the opinion can be found here.

So, what do you think?  Have you dealt with a case involving evidence cut and pasted into a document?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Usefulness of Facebook’s Self Collection Mechanism
 

We’ve written about Facebook a lot on this blog.  Shortly after this blog was launched, we provided information on Facebook’s subpoena policy.  We’ve also talked about the eDiscovery implications associated with the rollout of Facebook’s new email messaging system, dubbed “Facemail”.  And, just last week, we chronicled a case involving Facebook where they were ordered to produce documents instead of just merely providing access to them.  And, we haven’t even mentioned the latest revelations that Facebook may have secretly hired a PR firm to plant negative stories about Google (oops, we just did!).

But perhaps our most popular post regarding Facebook was regarding the self collection mechanism that they rolled out last October, which we found out about via our LegalTech interview with Craig Ball published back in March after our February interview (Craig also wrote an article about the feature in Law Technology News in February).

Now, another article has been written about the usefulness of Facebook’s self collection mechanism (called “Download Your Information”) in the blog E-Discovery Law Alert, entitled How Useful is Facebook's "Download Your Information" Feature in E-Discovery?, written by Patrick V. DiDomenico.

The author of this article conducted a test by downloading his information via the utility, deleting some information from his Facebook profile – “an email message, some wall posts, comments, photos, and even a friend (not a close friend)” – hopefully, he added the friend back.  Then, he downloaded his information again, every day for four days, with no change for the first three days.  On the fourth day, most of the deleted information disappeared from the download, except the email message (which disappeared when he ran the utility one more time).

The conclusion was that the mechanism “does not appear to ‘look back’ and recover deleted information in the user’s account”.  Thoughts:

  • With no change in the download in the first three days, the author notes that “Facebook did not take a fresh snapshot of my account every day – it just re-downloaded the same file three days in a row”.  He doesn’t mention whether he added any content during this time.  It would be interesting to see if that would force a change.
  • I don’t believe that there is any specific documentation from Facebook as to how it handles additions and deletions and how often the snapshot is updated.  If not, it might behoove them to create some, it might save them some subpoena requests.
  • The author notes that “it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information” as it “gives no assurance that a litigant’s attempt to delete evidence will be revealed”.  On the other hand, it may be still an appropriate mechanism to use for your own discovery to preserve your own information.  Facebook may also store deleted information on backup tapes, so a subpoena could catch your opponent red-handed if you can justify the discovery of those tapes.  Food for thought.

So, what do you think?  Have you had any Facebook discovery requests in your eDiscovery projects?   Please share any comments you might have or if you’d like to know more about a particular topic.