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Federal eDiscovery Rules

eDiscovery History: Zubulake’s e-Discovery
 

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law.  When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly.  A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

Laura A. Zubulake, the plaintiff in the Zubulake vs. UBS Warburg case, has written a new book: Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  It is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.

Zubulake begins the story by developing an understanding of the Wall Street setting of her employer within which she worked for over twenty years and the growing importance of email in communications within that work environment.  It continues through a timeline of the allegations and the evidence that supported those allegations leading up to her filing of a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and her subsequent dismissal from the firm.  This Allegations & Evidence chapter is particularly enlightening to those who may be familiar with the landmark opinions but not the underlying evidence and how that evidence to prove her case came together through the various productions (including the court-ordered productions from backup tapes).  The story continues through the filing of the case and the beginning of the discovery process and proceeds through the events leading up to each of the landmark opinions (with a separate chapter devoted each to Zubulake I, III, IV and V), then subsequently through trial, the jury verdict and the final resolution of the case.

Throughout the book, Zubulake relays her experiences, successes, mistakes, thought processes and feelings during the events and the difficulties and isolation of being an individual plaintiff in a three-year litigation process.  She also weighs in on the significance of each of the opinions, including one ruling by Judge Shira Scheindlin that may not have had as much impact on the outcome as you might think.  For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won.  Everybody loves a good “David versus Goliath story”, right?

The book is available at Amazon and also at CreateSpace.  Look for my interview with Laura regarding the book in this blog next week.

So, what do you think?  Are you familiar with the Zubulake opinions?  Have you read the book?  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 Best Practices: Judge Facciola Discusses Competency and Ethics
 

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) require that an attorney possess and demonstrate a certain requisite level of knowledge in order to be considered competent to handle a given matter.  Specifically, Model Rule 1.1 states that, "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

As noted in Law Technology News, eDiscovery vendor iConect hosted a free webinar last week entitled "Duty of Competency and E-Discovery", in which Joshua Gilliland, author of Bow Tie Law's Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and eDiscovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia.  The “sheriff” speaks!

The LTN article notes that, according to Judge Facciola, the requirement for competency now requires "a fundamental understanding of the way information is produced." This entails: 1) some understanding of the information systems you and your client are relying upon; 2) knowing your own limitations; and 3) if you don't understand, have someone at your side, i.e. an expert, who does, he declared.

With regard to ethics and eDiscovery, Judge Facciola gave an example of what might occur in a 26(f) meet and confer, which he called "the linchpin" of the 2006 amendments to the Federal Rules of Civil Procedure. Two lawyers are meeting in discovery in a case involving pharmaceuticals. One lawyer knows that the drug Pharmadine is spelled with an "e" not an "a" but doesn't correct the opposing party even though he knows it will disrupt his opponent's search, prolonging the discovery period by six months. Labeling this the difference between a material fact and not speaking to correct a mistake, Facciola says there's "no ethical rule" for this, but, ultimately that lawyer is going to have to go before a judge and account for those extra six months. Model rules regulate a profession's ethics, they don't influence a judge's decision. "Ethics rules are not a safe harbor," Facciola warned.

For more observations from Judge Facciola topics such as cooperation, preservation and search methodology, click on this link to access the article from Law Technology News.  And, for more on the subject of competency and ethics as it relates to eDiscovery, check out this post and this post from our archives.

So, what do you think?  Are you addressing ethics and competency requirements in your firm as it relates to eDiscovery?  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 Case Law: There’s a New Sheriff in Town – Judge Facciola
 

In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

According to the plaintiffs, defendant infringed on their wireless technology by utilizing the plaintiffs’ technology on its buses. Each side claimed discovery deficiencies and delays by the parties and filed motions accordingly.  The case was referred to Judge Facciola for discovery and in his 12 page Memorandum Opinion on June 6, he denied both motions.  However, he did note that the defendant’s application for sanctions has merit based on Rule 37, which indicates that “if a motion to compel is denied, the court may order the moving party to pay the opposing party’s expenses, including attorney’s fees, unless the motion was “substantially justified.””  Finding that not to be the case, Judge Facciola ordered the plaintiffs “to show cause why a sanction, in the form of attorney’s fees, should not be awarded against them for the time defendant spent opposing plaintiffs’ motion to compel”.

However, it’s the closing of the opinion where he laid down the law to the parties regarding the cooperation he expects moving forward on eDiscovery issues:

“III. High Noon

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

To download a copy of the Sedona Conference Cooperation Proclamation, click here.

Requiring a conference every two weeks to discuss discovery issues when parties can’t agree – sounds like a great idea to me!  So, what do you think?  Are attorneys taking the responsibility to conduct a Rule 26(f) conference to discuss discovery issues seriously?  Would Judge Facciola look good in a ten gallon hat?  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.

State eDiscovery Rules: Pennsylvania Supreme Court Amends eDiscovery Rules, Rejects Federal Rules
 

Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state.  However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.”  Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.

The explanatory comment also discusses the “Proportionality Standard” and its application to electronic discovery, as well as “Tools for Addressing Electronically Stored Information”.  When it comes to proportionality, Pennsylvania courts are required to consider:

“(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

(v) any other factors relevant under the circumstances.”

When it comes to tools for addressing ESI, the comment stated that "[p]arties and courts may consider tools such as electronic searching, sampling, cost sharing and non-waiver agreements to fairly allocate discovery burdens and costs. When using non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties."

The amendments affect rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011.  For example, in Rule 4009.1, the court added the phrase "electronically stored information" to the "production of documents and things" a party may request. It also added a subsection that a party requesting ESI "may specify the format in which it is to be produced and a responding party or person not a party may object."  If no format is requested, the rule states the ESI can be produced in the form in which it is typically maintained.

In some cases, the amendments affect only the notes, not the substance of the rule itself.  For example, in a note to Rule 4009.11 regarding the request for production of documents and things, the court said a request for ESI should be "as specific as possible."

So, what do you think?  Was it necessary for Pennsylvania to distance themselves from the Federal rules, or was it a good idea?  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 Case Law: No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted
 

The trend for defendants requesting plaintiffs to be responsible for eDiscovery costs when they lose is continuing.  Sometimes that request is granted, at least partially, as in this case and this case.  In another case, taxation of eDiscovery costs was initially granted, but then reversed due to the parties' agreement to split the costs.  Then, there’s the case of Race Tires America, Inc. v. Hoosier Racing Tire Corporation.  Last May, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs.  (Hoosier Daddy!)  But, then in March of this year, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs.  Now, a new case addresses the issue of taxation of costs once again.

In the case In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, (N.D. Cal. Apr. 20, 2012), a federal court recently broadly interpreted the language in the federal statute governing the taxation of costs, 28 U.S.C. § 1920(4).

In this class action involving claims that Netflix had reached an agreement with Walmart to divide the market for sales and online rentals of DVDs, Netflix won summary judgment and filed a motion seeking to recover its costs, including those relating to eDiscovery. After the clerk awarded the costs, the plaintiff subscribers filed a motion with the court seeking review of the award.

In denying the plaintiffs’ request to limit the costs, the court rejected the Third Circuit’s narrow view of 28 U.S.C. § 1920(4) as expressed in its recent decision in the Race Tires America, Inc. v. Hoosier Racing Tire Corp. case, which vacated the district court’s approval of many eDiscovery costs. Although the court noted the Third Circuit’s “well-reasoned opinion,” the California court concluded that “in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order in connection with the Blockbuster subscriber plaintiffs’ motion for review of the clerk's taxation of costs, broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.” Ultimately, the court awarded the defendants slightly more than $700,000 in costs.

So, what do you think?  Will this ruling isolate the Race Tires case as an anomaly?  Will our monthly Netflix subscription rates go down?  (Probably not.)  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 Trends: For an Appropriate eDiscovery Outcome, Call the Master
 

Special Master, that is.

Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here).  Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases.  A few highlights:

  • Appointing a Special Master: In Federal cases, Fed. R. Civ. P. 53 discusses the ability for a court to appoint a master with the parties’ consent.  Several states also have equivalent rules, for example, Rule 171 of the Texas Rules of Civil Procedure governs the ability to do so in Texas.
  • Circumstances Where Special Master is Most Often Required: Special masters are typically called in when special knowledge is required that neither party (nor their experts) possesses, or when one party is suspected of malfeasance.  Craig estimated that about half of the thirty cases where he has been retained have been because of suspected malfeasance by one party.  From an expertise standpoint, Craig noted that he most often fills this role related to a computer forensics need.
  • To Be “Special”, You Need to “Master” More than One Skill: Special masters need not only to be able to understand the law, they also need to understand systems, forms of ESI, mechanisms for preservation and formats of production.  In other words, they need the ability to “speak Geek”.
  • Special Masters Are Different From Mediators: A mediator’s job is to obtain agreement between parties.  While a special master may also do that to a degree, he/she must also apply good sense to the situation.  Craig’s analogy was that “just because both lawyers believe that they can fly” doesn’t mean that the special master should concur with that agreement.
  • Why Not Rely on the Judge for Such Services?:  Craig noted that many judges don’t have the technical expertise to adequately address all eDiscovery issues, so a special master can be called upon to provide recommendations regarding those issues to the Court.
  • Special Masters Are, Unsurprisingly, Not Free: Typically, they charge “senior partner” rates, reflecting their advanced level of expertise and experience.  Who pays?  It depends on the case, but potential malfeasance by a party can slant the costs to that party.  Special masters add value that can result in potentially significant cost savings to one or both parties, so they typically recoup those costs (and, often, a lot more).

The webcast also referenced two articles related to the subject of special masters and eDiscovery:

  • E‐Discovery: A Special Master's Perspective: Written by Craig himself, this nine page article talks about the pros and cons of Special Masters, the eight questions that lawyers need to be able to answer when working with special masters and the three typical reasons that eDiscovery fails, among other topics.  It also provides a terrific appendix with a two page Exemplar ESI Special Master Appointment Order.
  • Special Masters and e-Discovery: The Intersection of Two Recent Revisions to Federal Rules of Civil Procedure: This fifty-nine page article was written by The Honorable Shira A. Scheindlin (United States District Judge for the Southern District of New York and presiding judge of the notable Zubulake v. UBS Warburg case) & Jonathan M. Redgrave (founding partner of the firm of Redgrave, Daley, Ragan & Wagner and Chair Emeritus of The Sedona Conference’s® Working Group on Best Practices for Electronic Document Retention and Production).  It discusses the changes to Rule 53, governing the appointment of special masters and the changes to the Federal Rules for eDiscovery, suggesting appropriate uses for special masters for legal and technical issues.

If you missed the webcast (which is too bad, because Craig was entertaining and informative, as always), these articles provide good information on the use of special masters in eDiscovery.

So, what do you think?  Have you ever used a special master to address eDiscovery issues?  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 Trends: Rules Changes for Spoliation Could Come as Soon as 2013
 

With cases related to preservation and spoliation issues continuing to be prevalent, as well as continued greater emphasis on proportionality in eDiscovery, the Advisory Committee on the Federal Rules of Civil Procedure has requested comments on possible changes to the federal rules relating to preservation and spoliation of evidence.  Much of the framework for the proposed rules was derived from Judge Shira Scheindlin's opinions on eDiscovery, particularly those in the Zubulake case.  These changes could be finalized as soon as December 2013.

As there are currently no rules governing preservation, courts have set their own guidelines – not always consistently from court to court. The hope is that establishment of rules regulating preservation and spoliation will clarify expectations and standardize practices.  Invited by the advisory committee to provide suggestions, the special committee has proposed new Rule 26(h), which specifies that the duty to preserve ESI arises when a subpoena is received by a non-party, or when a person becomes aware of facts that would lead a reasonable person to expect to become a party to an action. That duty remains in effect for all existing and subsequently created documents or ESI until the termination of the involvement of the party or non-party, or until a person becomes aware of facts that would lead a reasonable person to believe that he or she will not become a party to an action.

A person whose duty to preserve has been triggered must take steps to preserve discoverable documents and ESI, and must consider several factors, including:

  • Importance of the information;
  • Amount in controversy; and
  • Burden and expense to preserve in a form as close to (if not identical to) their original condition as possible.

In addition, new Rule 37(g) has been proposed which identifies a variety of penalties to be imposed, depending on the level of culpability of the spoliating party and the remedial requirements necessary to the case, taking into account the importance of the information lost to the party seeking its discovery.

While the advisory committee decided not to pursue any rule change dealing with preservation back in November, they have continued to pursue those dealing with penalties for spoliation.  However, during the discussion process for preservation rules, standard expectations for preservation of evidence included the issuance of a written litigation hold to key players in an organization most likely to possess documents or ESI that will be important in a case, with the hold to be periodically reviewed and renewed.  Eventual rules for preservation would be expected to include such provisions.

As for spoliation, the advisory committee considered the proposed new rule regarding penalties for spoliation at its meeting on March 22.

The advisory committee has also drafted proposed amendments to Rule 45 concerning serving of subpoenas. Proposed changes include abolishing the requirement that a discovery subpoena be issued in the same court where compliance of the subpoena is expected. Instead, nationwide service of process will be implemented, so, for example a discovery subpoena for a case pending in the Eastern District of Texas would be valid in the Southern District of New York. The subpoenaed party can choose the subpoena to be enforced in the district where compliance is to be made or in the trial court.  Out-of-state parties (or an officer of those parties) can be compelled to travel more than 100 miles to testify at trial if good cause is shown for them to do so. Changes are also proposed requiring that all parties receive notice on the service of a subpoena to a non-party.

The advisory committee decided on revisions to Rule 45 back on March 22. By May 1, the advisory committee will submit its recommendations regarding spoliation and Rule 45 to the federal Standing Committee. The federal Standing Committee is expected to approve the recommendations in June and submit them to the federal Judicial Conference. Assuming the Judicial Conference approves the proposal at its September 2012 meeting, they will transmit it to the US Supreme Court, which will have until May 1 of next year to transmit the proposal to Congress. If Congress does not act, the proposal would become rule on December 1, 2013.

So, what do you think?  Will these rules changes benefit the eDiscovery process?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Delaware Has a New Standard for eDiscovery
 

On Dec. 8 of last year, the U.S. District Court for the District of Delaware revised the "Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)" for the third time to reflect recent changes in technology and to address concerns of attorneys regarding the discovery of ESI.  The new Default Standard expects the parties to reach agreements cooperatively on how to conduct discovery under Fed. R. Civ. P. 26-36. If the parties are unable to agree on the parameters and/or timing of discovery, the default standards will apply until further order of the Court or the parties reach agreement (which is why it’s a default standard).

The Revised Default Standard addresses several provisions for conducting discovery of ESI, including:

  • Proportionality: Parties are expected to preserve, identify and produce relevant information in a proportional manner.
  • Preservation: Each party’s normal policies and procedures in place for the preservation and backup of information will not be altered unless the party requesting the information provides good cause and that information current when the request is made must be preserved by the producing party. The preservation requirement doesn’t extend to data only discoverable by forensics, voice mails, information stored on mobile devices, RAM, and data from obsolete systems.
  • Privilege: The parties are expected to confer on the nature and scope of privilege logs for the case, including whether categories of information may be excluded from any logging requirements and whether alternatives to document-by-document logs can be exchanged.
  • Initial Discovery Conference: The new Default Standard provides guidelines for the timing (before the "Rule 16 Conference”) and content (issues, sources of potentially relevant ESI, production formats, handling of privileged information, categories of ESI to preserve, etc.) of the Initial Discovery Conference.
  • Initial Disclosures: Within 30 days after the Rule 16 Conference, each party is required to disclose a ranked list of the 10 custodians most likely to have discoverable information in their possession, a ranked list of the non-custodial data sources that are most likely to contain non-duplicative discoverable information and any issues related to ESI, third-party discovery under Fed. R. Civ. P. 45 and production of information subject to privacy protections.
  • Patent Litigation Discovery Requirements: The timing, starting within 30 days after the Rule 16 Conference, for the plaintiff and defendant obligations are detailed.  In patent litigation proceedings, discovery is limited to 6 years before the complaint unless the information in question relates to the conception of the invention in question.
  • On-Site Inspection of Electronic Media:  Not permitted without good cause.
  • Search Methodology: Producing parties must disclose their search terms to the requesting party and the requesting party may request no more than ten additional terms which must not be overbroad (e.g., product and company names).
  • Format: ESI and non-ESI should be produced to the requesting party as text searchable image files (e.g., PDF or TIFF) unless they are not easily converted to image files (e.g., Excel and Access files).
  • Metadata Fields: The only fields required to be produced (if available) are – Custodian, File Path, Email Subject, Conversation Index, From, To, CC, BCC, Date Sent, Time Sent, Date Received, Time Received, Filename, Author, Date Created, Date Modified, MD5 Hash, File Size, File Extension, Control Number Begin, Control Number End, Attachment Range, Attachment Begin, and Attachment End (or the equivalent thereof).

So, what do you think?  How do these standards compare to those in your state?  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 History: A Look Back at Zubulake
 

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212.  Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data.  Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case.  But, do you understand just how many groundbreaking opinions resulted from that case?  For those who aren’t aware, let’s take a look back.

The plaintiff, Laura Zubulake, filed suit against her former employer UBS Warburg, alleging gender discrimination, failure to promote, and retaliation. Southern District of New York Judge Shira Sheindlin's rulings in this case are the most often cited in the area of electronic discovery, and were issued prior to the 2006 amendments to the Federal Rules of Civil Procedure. That’s somewhat like establishing laws before the Ten Commandments!  The important opinions related to eDiscovery are commonly known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V.  Here is a summary of each of those opinions:

Zubulake v. UBS Warburg, 217 F.R.D. 309 (Zubulake I) and Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III)

The plaintiff argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email, but the plaintiff produced approximately 450 pages of email correspondence on her own. To address the discrepancy, the plaintiff requested for UBS to locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002). In May 2003, the court ruled stating that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format". The court determined that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic media, as follows:

  1. Online data, including hard disks;
  2. Near-line data, including optical disks;
  3. Offline storage, such as magnetic tapes;
  4. Backup tapes;
  5. Fragmented, erased and damaged data.

The last two categories were considered inaccessible as they were not readily available and thus subject to cost-shifting. Discussing the Rowe decision, the court concluded that it needed modification and created a new seven factor balance test for cost-shifting:

  1. The extent to which the request is specifically tailored to discover relevant information;
  2. The availability of such information from other sources;
  3. The total cost of production, compared to the amount in controversy;
  4. The total cost of production, compared to the resources available to each party;
  5. The relative ability of each party to control costs and its incentive to do so;
  6. The importance of the issues at stake in the litigation; and
  7. The relative benefits to the parties of obtaining the information.

The defendant was ordered to produce, at its own expense, all responsive email existing on its servers, optical disks, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

In July 2003, Zubulake III applied the cost-shifting test outlined in Zubulake I based on the sample recovery of data from five backup tapes.  After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimated costs for production was $273,649, including attorney and paralegal review costs. After applying the seven factor test, it determined that the defendant should account for 75 percent of the restoration and searching costs, excluding attorney review costs.

Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV)

During the restoration effort, the parties discovered that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes and also sought an adverse inference instruction against UBS and the costs for re-deposing some individuals required because of the destruction of evidence.

In October 2003, Judge Scheindlin found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, at the time, she concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. But, she did order the defendant to cover the costs as claimed by the plaintiff.

Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (Zubulake V)

In July 2004, Judge Scheindlin ruled that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for adverse inference instruction sanctions, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case.

The court also indicated that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched" by ensuring all relevant documents are discovered, retained, and produced and that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.

In the final instructions to the jury Judge Scheindlin instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, monetary sanctions were awarded to the plaintiff for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in the plaintiff’s favor on both claims awarding compensatory and punitive awards totaling $29.2 million.

Judge Scheindlin’s opinions in Zubulake, including definitions of accessible and inaccessible data, the seven factor balance test for cost shifting and definition of counsel’s obligation for preserving data, have been referenced in numerous cases since and have provided guidance to organizations preparing for litigation.  For any of you who may not have fully understood the significance of the case, I hope this look back was helpful.

So, what do you think?  Did you learn something new about Zubulake?  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 Law: Texas Model Order for Patent eDiscovery Now In the Public Comment Phase
 

In a blog post last October, we discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. At that time, the "Model Order on E-Discovery in Patent Cases" had been unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in such cases.  This version of the model order is included in proposed local rule amendment GO-12-06 for the Eastern District of Texas.  The amendment has been approved by the judges of the district, subject to public comment, the deadline for which is March 23, a little over two weeks from now.

Reviewed by a working group of the Eastern District's Local Rules Advisory Committee at the court's request to determine whether it should be included in the district's local rules, the working group recognized the "substantial work that went into the [Federal Circuit's] Model Order" and used it as its "baseline." The district created a redlined version of the Federal Circuit model order and provides detailed commentary explaining the reasons for the changes to the Federal Circuit model.  It has some fairly significant changes, some of which include:

  • Cost Shifting: Item #3, addressing circumstances for considering cost shifting, was stricken;
  • ESI Production Parameters: A new item #5 has been added to address production parameters, including document image format in TIFF, text-searchable documents, and native files (the way it’s currently written, you can apparently only request native files after receiving a TIFF production, absent agreement of the parties).  This section also notes that backup preservation and collection and preservation from voice mail and mobile devices is not necessary (absent a showing of good cause);
  • Email Production Requests: Item #7, indicating that email production requests will be only propounded for specific issues instead of general discovery, was stricken.  The next item, related to specifics of email production requests was expanded quite a bit to address information to be exchanged prior to email production and also allow one deponent per producing party to determine “the proper custodians, proper search terms, and proper time frame for e-mail production requests”;
  • Email Production Scope: Language was added to indicate that email requests will “identify the custodian, search terms, and time frame”.  It also bumped up the limit from five to eight custodians per producing party for each request and bumped up the limit from five to ten search terms per custodian per party.

It will be interesting to see whether any additional modifications are implemented as a result of the public comment period.

So, what do you think?  Will model orders become popular as a way to limit the eDiscovery in other types of cases?  Are model orders a good idea or are they too limiting? 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.