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Important Considerations when Negotiating Search Terms with Opposing Counsel – eDiscovery Best Practices

Negotiating search terms with opposing counsel has become commonplace to agree on the scope of discovery.  However, when you negotiate terms with the other side, you could be agreeing to produce more than you think.  Craig Ball’s latest article in Law Technology News discusses the issues and tries to answer the question: Are Keywords Just Filters?

Many attorneys still consider attorney eyes-on linear review as the final step to decide relevance of the document collection, but Craig notes that “requesting parties frequently believe that by agreeing to the use of a set of keywords as a proxy for attorney review, those agreed searches serve as a de facto request for production and define responsiveness per se, requiring production if not privileged.”

While producing parties may object to keyword search as a proxy for attorney review, Craig notes that “there’s sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols and drafting memorializing agreements.”

Craig states what more and more people have come to accept, “Objective culling, keyword search, and emerging technologies such as predictive coding make clear that the idealized view of counsel as ultimate arbiter of relevance is mostly myth.”  We discussed a study regarding the reliability of review attorneys in a post here.  “Consequently, as more parties forge detailed agreements establishing objective evidentiary identifiers such as dates, sources, custodians, circulation, data types, and lexical content, litigants and courts grow impatient with the cost and time required for attorney review and reluctant to give it deference.”

Craig’s article discusses the issue in greater depth and even provides a couple of examples of agreed upon language – one where keyword search would be considered as a filter for attorney review, the other where it would be considered as a replacement for review.  His advice to producing parties: “In effect, requesting parties regard an agreement to use queries as an agreement to treat those queries as requests for production. Producing parties who reject this thinking would nevertheless be wise to plan for opponents (and judges) who embrace it.”

It’s a terrific article and I don’t want to steal all his thunder, so click here to check it out.

BTW, Craig is no stranger to this blog – in addition to several of his articles we’ve referenced, we’ve also conducted thought leader interviews with him at LegalTech New York the past three years.  Here’s a link if you want to check those out.

So, what do you think?  Do you negotiate search terms with opposing counsel?  If so, do you use the terms as a filter or a proxy for attorney review?  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.

Four More Tips to Quash the Cost of eDiscovery – eDiscovery Best Practices

Thursday, we covered the first four tips from Craig Ball’s informative post on his blog (Ball in your Court) entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  Today, we’ll discuss the last four tips.

5. Test your Methods and Know your ESI: Craig says that “Staggering sums are spent in e-discovery to collect and review data that would never have been collected if only someone had run a small scale test before deploying an enterprise search”.  Knowing your ESI will, as Craig notes, “narrow the scope of collection and review with consequent cost savings”.  In one of the posts on our very first day of the blog, I relayed an actual example from a client regarding a search that included a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.  Because there are 269 words in the English language that begin with “min”, that overly broad search retrieved over 300,000 files with hits in an enterprise-wide search.  Unfortunately, the client had already agreed to the search term before finding that out, which resulted in considerable negotiation (and embarrassment) to get the other side to agree to modify the term.  That’s why it’s always a good idea to test your searches before the meet and confer.  The better you know your ESI, the more you save.

6. Use Good Tools: Craig provides another great analogy in observing that “If you needed to dig a big hole, you wouldn’t use a teaspoon, nor would you hire a hundred people with teaspoons.  You’d use the right power tool and a skilled operator.”  Collection and review tools must fit your requirements and workflow, so, guess what?  You need to understand those requirements and your workflow to pick the right tool.  If you’re putting together a wooden table, you don’t have to learn how to operate a blowtorch if all you need is a hammer and some nails, or a screwdriver and some screws for the job.  The better that the tools fit your workflow, the more you save.

7. Communicate and Cooperate: Craig says that “Much of the waste in e-discovery grows out of apprehension and uncertainty.  Litigants often over-collect and over-review, preferring to spend more than necessary instead of giving the transparency needed to secure a crucial concession on scope or methodology”.  A big part of communication and cooperation, at least in Federal cases, is the Rule 26(f) conference (which is also known as the “meet and confer”, here are two posts on the subject).  The more straightforward you make discovery through communication and cooperation, the more you save.

8. Price is What the Seller Accepts: Craig notes that there is much “pliant pricing” for eDiscovery tools and services and relayed an example where a vendor initially quoted $43.5 million to complete a large expedited project, only to drop that quote all the way down to $3.5 million after some haggling.  Yes, it’s important to shop around.  It’s also important to be able to know the costs going in, through predictable pricing.  If you have 10 gigabytes or 1 terabyte of data, providers should be able to tell you exactly what it will cost to collect, process, load and host that data.  And, it’s always good if the provider will let you try their tools for free, on your actual data, so you know whether those tools are worth the price.  The more predictable price and value of the tools and services are, the more you save.

So, what do you think?  What are you doing to keep eDiscovery costs down?  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.

Eight Tips to Quash the Cost of eDiscovery – eDiscovery Best Practices

By now, Craig Ball needs no introduction our readers as he has been a thought leader interview participant for the past three years.  Two years ago, we published his interview in a single post, his interview last year was split into a two part series and this year’s interview was split into a three part series.  Perhaps next year, I will be lucky enough to interview him for an hour and we can simply have a five-part “Ball Week” (like the Discovery Channel has “Shark Week”).  Hmmm…

Regardless, I’m a regular reader of his blog, Ball in your Court, as well, and, last week, he published a very informative post entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  I thought we would cover those tips here, with some commentary:

  1. Eliminate Waste: Craig notes that “irrational fears [that] flow from lack of familiarity with systems, tools and techniques that achieve better outcomes at lower cost” results in waste.  Over-preservation and over-collection of ESI, conversion of ESI, failing to deduplicate and reviewing unnecessary files all drive the cost up.  Last September, we ran a post regarding quality control and making sure the numbers add up when you subtract filtered, NIST/system, exception, duplicate and culled (during searching) files from the collected total.  In that somewhat hypothetical example based on Enron data sets, after removing those files, only 17% of the collected files were actually reviewed (which, in many cases, would still be too high a percentage).  The less number of files that require attorney “eyes on”, the more you save.
  2. Reduce Redundancy and Fragmentation: While, according to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months, Craig points out that “human beings don’t create that much more unique information; they mostly make more copies of the same information and break it into smaller pieces.”  Insanity is doing the same thing over and over and expecting different results and insane review is reviewing the same documents over and over and (potentially) getting different results, which is not only inefficient, but could lead to inconsistencies and even inadvertent disclosures.  Most collections not only contain exact duplicates in the exact format (which can identified through hash-based deduplication), but also “near” duplicates that include the same content in different file formats (and at different sizes) or portions of the content in eMail threads.  The less duplicative content that requires review, the more you save.
  3. Don’t Convert ESI: In addition to noting the pitfalls of converting ESI to page-like image formats like TIFF, Craig also wrote a post about it, entitled Are They Trying to Screw Me? (discussed in this blog here).  ‘Nuff said.  The less ESI you convert, the more you save.
  4. Review Rationally: Craig discussed a couple of irrational approaches to review, including reviewing attachments without hits when the eMail has been determined to be non-responsive and the tendency to “treat information in any form from any source as requiring privilege review when even a dollop of thought would make clear that not all forms or sources of ESI are created equal when it comes to their potential to hold privileged content”.  For the latter, he advocates using technology to “isolate privileged content” as well as clawback agreements and Federal Rule of Evidence 502 for protection against inadvertent disclosure.  It’s also important to be able to adjust during the review process if certain groups of documents are identified as needing to be excluded or handled differently, such as the “All Rights Reserved” documents that I previously referenced in the “oil” AND “rights” search example.  The more intelligent the review process, the more you save.

There is too much to say about these eight tips to limit to one blog post, so on Monday (after the Good Friday holiday) we’ll cover tips 5 through 8.  The waiting is the hardest part.

So, what do you think?  What are you doing to keep eDiscovery costs down?  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 Daily Is Thirty! (Months Old, That Is)

Thirty months ago yesterday, eDiscovery Daily was launched.  It’s hard to believe that it has been 2 1/2 years since our first three posts that debuted on our first day.  635 posts later, a lot has happened in the industry that we’ve covered.  And, yes we’re still crazy after all these years for committing to a daily post each business day, but we still haven’t missed a business day yet.  Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

In addition, Jane Gennarelli has been publishing an excellent series to introduce new eDiscovery professionals to the litigation process and litigation terminology.  Here is the latest post, which includes links to the previous twenty one posts.

Thanks for noticing us!  We’ve nearly quadrupled our readership since the first six month period and almost septupled (that’s grown 7 times in size!) our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, 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.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted the past two days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to social media and the first cases approving technology assisted review.  Today, let’s take a look back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  Whether the issue is whether certain emails should be considered privileged, whether cloning of computer files is acceptable or whether text messages require substantiation of authorship, parties are disputing what ESI should actually be admissible in litigation.  Parties are also disputing when and where litigation holds are required and whether collection and search practices are acceptable.  In short, there are numerous disputes about data being produced and not being produced.  Here are (a whopping) sixteen cases related to admissibility and the duty to preserve and produce ESI:

Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer.  In United States v. Hamilton, the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

Defendant Had Duty to Preserve Despite No Physical Possession of Documents.  In Haskins v. First American Title Insurance Co., a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

Defendant Compelled to Produce Additional Discovery to Plaintiff.  In Freeman v. Dal-Tile Corp., a case alleging harassment and discrimination, among other claims, against her former employer Dal-Tile Corporation, the plaintiff brought a motion to compel, asserting that some of the defendant’s discovery responses related to its search for ESI were deficient.

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do.  In Murray v. Coleman, the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

Cloning of Computer Files: When There’s a Will, There’s a Way.  In Matter of Tilimbo, a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

Citing Rule 26(g), Court Orders Plaintiff’s Counsel to Disclose Search Strategy.  Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Judge Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding.  When most people think of the horrors of Friday the 13th, they think of Jason Voorhees. When US Immigration and Customs thinks of Friday the 13th horrors, do they think of Judge Shira Scheindlin?  New York District Judge Scheindlin issued a decision on Friday, July 13, addressing the adequacy of searching and self-collection by government entity custodians in response to Freedom of Information Act (FOIA) requests.

Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata.  In Commercial Law Corp., P.C. v. FDIC, Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”.  Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

Inadmissibility of Text Messages Being Appealed.  In October 2011, we covered a case – Commonwealth v. Koch – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

Another Case with Inadmissible Text Messages.  Above, we discussed a case where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case is now being appealed to the state Supreme Court. Today, we have another case – Rodriguez v. Nevada – where text messages were ruled inadmissible.

Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers.  In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

Court Orders eDiscovery Evidentiary Hearing When Parties Are Unable to Cooperate.  A month ago, in Chura v. Delmar Gardens of Lenexa, Inc., Magistrate Judge David J. Waxse ordered an evidentiary hearing to discuss the sufficiency of the defendant’s search for ESI and format of production in response to the plaintiff’s motion to compel additional searching and production.

At The Eleventh Hour, Encrypted Hard Drive Is Decrypted.  In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that Ramona Fricosu must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. Naturally, the defendant appealed. On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu’s case must first be resolved in District Court before her attorney can appeal. She would have been required to turn over the unencrypted contents of the drive as of March 1. However, at the last minute, Colorado federal authorities decrypted the laptop.

Court Rules Exact Search Terms Are Limited.  In Custom Hardware Eng’g & Consulting v. Dowell, the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers. After reviewing proposed search terms from both sides, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

KPMG Loses Another Round to Pippins.  As discussed previously in eDiscovery Daily, KPMG sought a protective order in Pippins v. KPMG LLP to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court. In February, District Court Judge Colleen McMahon upheld the lower court ruling.

Tune in tomorrow for more key cases of 2012 and, once again, the most common theme of the year!

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

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

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 1

2012 was quite a year from an eDiscovery standpoint, with a number of cases that impacted how organizations handle discovery.  There were case decisions that broke new ground (such as technology assisted review) and other cases that showed that many organizations still have a lot to learn in terms of inadvertent disclosures of privileged documents and sanctions assessed due to spoliation.

As we did last year, it seems appropriate to review cases from 2012 before moving forward to this year.  eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

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

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue.  Here are three such cases:

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification.  In Boeynaems v. LA Fitness International, LLC, Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

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”.

Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery.  In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC.

PRIVILEGE / INADVERTENT DISCLOSURES

There were a few cases related to privilege issues, with parties failing the five factor test and paying the price for inadvertent disclosures of privileged documents (even when disclosing two privileged pages out of two million pages produced!).  Here are five cases where disclosure of privileged documents was addressed:

Another Disclosure of Privileged Documents Fails the Five Factor Test.  In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Counsel, The Inadvertent Disclosure “Buck” Stops With You.  In Blythe v. Bell, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production.  In D’Onofrio v. Borough of Seaside Park, New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure.

Inadvertent Disclosure By Expert Waives Privilege.  In Ceglia v. Zuckerberg (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege.  In Jacob v. Duane Reade, Inc., Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants’ counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

EDISCOVERY COST REIMBURSEMENT

In 2011, there were several cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Last year, that trend reversed somewhat as there were some cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted).  Here are five cases, some of which fall into each category:

Court Reduces, But Allows, Reimbursement of eDiscovery Costs.  In Moore v. The Weinstein Company LLC, noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

Trend Has Shifted Against Reimbursement of eDiscovery Costs.  Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs. Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts. Now, here is another case where reimbursement of eDiscovery costs was denied.

Google Awarded $1 Million from Oracle, But Denied Discovery Costs.  Judge William Alsup ordered Oracle to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software. However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted.  Last May, in Race Tires America, Inc. v. Hoosier Racing Tire Corporation, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March, 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.

Not So Fast On eDiscovery Cost Reimbursement.  Today, we look at another eDiscovery ruling where a significant reduction in award amount was ruled.

We’re just getting started!  Tomorrow, we will cover cases related to social media and technology assisted review.  Stay tuned!

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

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

Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law

In United States v. Hamilton, No. 11-4847, 2012 U.S. App. (4th Cir. Dec. 13, 2012), the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

This appeal arose after a jury convicted Phillip A. Hamilton, who had been a state legislator, of bribery and extortion under color of official right for using his legislative position to obtain funding for a public university in exchange for employment at the university. Hamilton appealed on several bases, including that the district court had improperly determined that the marital privilege was waived for e-mails sent between Hamilton and his wife. The appeals court reviewed the district court’s determination using an abuse of discretion standard.

E-mails sent between Hamilton and his wife through his work e-mail account spoke of their financial difficulties, his plan to meet with officials at Old Dominion University (“ODU”) to attempt to secure employment, and the salary he hoped to secure. Other messages that Hamilton sent and received (also from his work e-mail) from ODU officials helped show an inextricable connection between his proposed employment with the school and his plan to secure funding for the school.

In reviewing the district court’s refusal to grant marital-privilege protection to e-mails between Hamilton and his wife, the court turned to the Supreme Court’s analysis of the marital privilege in Wolfle v. United States. In Wolfle, the Court pointed out, “‘Communications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.’” But, “‘voluntary disclosure’ of a communication waives the privilege.” The court analogized the circumstances here to the ones in Wolfle in which the Supreme Court deemed the marital privilege waived:

In Wolfle, the Court held that a defendant’s communication with his wife did not come “within the privilege because of [his] voluntary disclosure” of the communication “to a third person, his stenographer.” (citation omitted) The Court explained that, “[n]ormally husband and wife may conveniently communicate without stenographic aid, and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the testimony of third persons to whom such communications have been voluntarily revealed.” (citation omitted) Because “[t]he privilege suppresses relevant testimony,” it “should be allowed only when it is plain that marital confidence cannot otherwise reasonably be preserved,” and “[n]othing in this case suggests any such necessity.” (citation omitted)

Likewise, in Hamilton’s case, with e-mail as “the modern stenographer,” Hamilton waived the marital privilege when he used his work e-mail account on his office computer to communicate with his wife, although he was able to “‘conveniently communicate without’” doing so.

Moreover, the court found, Hamilton’s argument that at the time he sent the e-mails to his wife there was no employer-instituted computer usage policy was without merit. The court pointed out that by the time the investigation into Hamilton was underway, such a policy was in place, Hamilton had signed his agreement to it, and Hamilton reaffirmed acknowledgment of the policy “every time he logged onto his work computer” when he “press[ed] a key to proceed to the next step of the log-on process.” The district court found that these facts were sufficient to establish waiver of the marital privilege, and the appellate court agreed. (Nevertheless, the court appeared to say, even if Hamilton had had a reasonable expectation of privacy in his e-mails—before the employer enacted a policy regarding the e-mails, the prior Wolfle analysis precluded any privilege from attaching in these circumstances.)

The appellate court acknowledged the protection deservedly extended to certain marital communications, but ultimately it concluded that this case fell outside those bounds:

Hamilton himself contends that he did not waive the privilege because he “had no reason to believe, at the time he sent and received the e-mails, that they were not privileged,” and he could not waive his privilege retroactively. Amicus, the Electronic Privacy Information Center, adds that it seems “extreme” to “require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes,” when “employees may not even be aware that archived e-mails exist or know where to find them.” (citation omitted)

In an era in which e-mail plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by e-mail usage. But the district court found that Hamilton did not take any steps to protect the e-mails in question, even after he was on notice of his employer’s policy permitting inspection of e-mails stored on the system at the employer’s discretion.

Accordingly, that one may generally have a reasonable expectation of privacy in e-mail, at least before a policy is in place indicating otherwise, does not end our inquiry.

So, what do you think?  Should the privilege have been waived?  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.

Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends

According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”.  Let’s take a closer look at the numbers and look at some cases in each category.

As indicated in their December 4 news release, in the past year, Kroll Ontrack experts summarized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of electronically stored information (ESI). The breakdown of the major issues that arose in these eDiscovery cases is as follows:

  • Thirty-two percent (32%) of cases addressed sanctions regarding a variety of issues, such as preservation and spoliation, noncompliance with court orders and production disputes.  Out of 70 cases, that would be about 22 cases addressing sanctions this past year.  Here are a few of the recent sanction cases previously reported on this blog.
  • Twenty-nine percent (29%) of cases addressed procedural issues, such as search protocols, cooperation, production and privilege considerations.  Out of 70 cases, that would be about 20 cases.  Here are a few of the recent procedural issues cases previously reported on this blog.
  • Sixteen percent (16%) of cases addressed discoverability and admissibility issues.  Out of 70 cases, that would be about 11 cases.  Here are a few of the recent discoverability / admissibility cases previously reported on this blog.
  • Fourteen percent (14%) of cases discussed cost considerations, such as shifting or taxation of eDiscovery costs.  Out of 70 cases, that would be about 10 cases.  Here are a few of the recent eDiscovery costs cases previously reported on this blog.
  • Nine percent (9%) of cases discussed technology-assisted review (TAR) or predictive coding.  Out of 70 cases, that would be about 6 cases.  Here are a few of the recent TAR cases previously reported on this blog, how many did you get?

While it’s nice and appreciated that Kroll Ontrack has been summarizing the cases and compiling these statistics, I do have a couple of observations/questions about their numbers (sorry if they appear “nit-picky”):

  • Sometimes Cases Belong in More Than One Category: The case percentage totals add up to 100%, which would make sense except that some cases address issues in more than one category.  For example, In re Actos (Pioglitazone) Products Liability Litigation addressed both cooperation and technology-assisted review, and Freeman v. Dal-Tile Corp. addressed both search protocols and discovery / admissibility.  It appears that Kroll classified each case in only one group, which makes the numbers add up, but could be somewhat misleading.  In theory, some cases belong in multiple categories, so the total should exceed 100%.
  • Did Cases Addressing Procedural Issues Really Double?: Kroll reported that “cases addressing procedural issues more than doubled”; however, here is how they broke down the category last year: 14% of cases addressed various procedural issues such as searching protocol and cooperation, 13% of cases addressed various production considerations, and 12% of cases addressed privilege considerations and waivers.  That’s a total of 39% for three separate categories that now appear to be described as “procedural issues, such as search protocols, cooperation, production and privilege considerations” (29%).  So, it looks to me like the percentage of cases addressing procedural issues actually dropped 10%.  Actually, the two biggest category jumps appear to be discoverability and admissibility issues (2% last year to 16% this year) and TAR (0% last year to 9% this year).

So, what do you think?  Has your organization been involved in any eDiscovery opinions this year?  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.

Cloning of Computer Files: When There’s a Will, There’s a Way – eDiscovery Case Law

In Matter of Tilimbo, No. 329/M-2007, 2012 N.Y. Misc. (Surr. Ct., Bronx Cnty. Aug. 22, 2012), a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

In this claim based on a will contest, the plaintiffs moved for an order permitting their computer forensic expert to examine the personal computer hard drive of a nonparty witness, the deceased’s attorney Patrick Wynne, limited to finding and reviewing documents related to Rose Tilimbo, her will, as well as a deed transfer from her to Salvatore Tilimbo that formed the basis of the will contest. Wynne objected on the basis that he had already, at the court’s direction, been deposed on the subject and “provided an affirmation stating that he conducted the requisite diligent search of his ‘computer files and any other [additional] relevant files’ and did not find responsive documents or computer files.” He argued that “a balancing of the sanctity of the attorney-client privilege against the scope of permissible discovery warrant[ed] the denial of the motion.”

Noting that ESI of a nonparty is discoverable, the court held that so long as it did not place an unreasonable burden on Wynne, a solo practitioner, the examination and cloning of Wynne’s computer was permissible. Although Wynne had produced in hard copy all of the documents he said he possessed, the court pointed out that such disclosures did not prevent the ESI itself from being sought. In addition, Wynne had not been able to produce any documents related to the deed transfer at issue, and any such documents that existed would clearly be material and relevant to the case. Therefore, the court offered the following parameters for the cloning:

“The court finds that the cloning would not place an unreasonable burden upon Wynne if all of the computers can be cloned at his office in four hours or less on a date and at a time that he selects, which may include in whole or in part a time after normal business hours. Alternatively, the cloning will be allowed outside of Wynne’s office if it can be done by removing the computer(s) on a Saturday at any time selected by Wynne and returned to his office by Monday between 8:30 and 9:00 a.m. If Wynne prefers, the computer(s) may be removed from his office on any other day, provided the computer(s) are returned to his office within 24 hours. If the cloning is to be done outside of Wynne’s office and more than one computer is to be cloned, then at Wynne’s option, only one computer may be removed from his office at a time. In the event that the cloning can be accomplished within the time allocated herein either at Wynne’s office or by removal of the computer(s), Wynne shall have the right to select whether or not he wants the cloning to be done at his office. In the event that the cloning requested by the movants cannot be performed within the time frame provided herein, the court finds that the disruption to Wynn’s practice of law outweighs the benefits that the movants might obtain from the information provided by the cloning. Furthermore, should a computer be removed from Wynne’s office and not returned within the time provided herein, the movants shall pay Wynne $200 for each hour or part thereof that the return is delayed.”

In addition, the forensic analysts were limited to locating documents likely to lead to discoverable evidence related to the decedent and were given specific instructions on what to do with any unrelated documents that were accidentally uncovered.

So, what do you think?  Should cloning of the computer have been allowed?  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.

Inadvertent Disclosure? Got Clawback? – eDiscovery Best Practices
 

As discovery becomes more complex and voluminous, it seems as though we’re seeing more and more cases where inadvertent disclosures of privileged documents are becoming more common.  In just the past couple of months, we’ve discussed two cases on this blog, where the producing parties were forced to waive privilege of those documents when they failed the now popular five factor test to determine whether an inadvertent disclosure entitles the producing party to have the documents returned.  Perhaps if they had a well-defined “clawback” agreement, the results would have been different?

What is a “Clawback” Agreement?

A clawback agreement enables the parties in a case to agree – in advance – that if privileged documents are inadvertently produced during discovery, privilege on those documents won’t be waived. The inadvertently produced documents are instead returned to the producing party, or destroyed by the receiving party – either way, they are not used by the receiving party.  As part of that agreement, each party is able to identify documents that it has inadvertently produced and request that they be returned or destroyed by the opposing party.  Per the clawback agreement, the opposing party agrees to comply with that request and not make a claim of waiver.

Protection of Waiver under FRE 502

Federal Rule of Evidence 502 (FRE 502) was enacted in 2008 to provide additional reassurances for parties dealing with the problem of inadvertent waiver.  Under FRE 502, inadvertent disclosure of privileged material does not operate as a waiver if three conditions are met:

  • The disclosure is inadvertent
  • The holder of the privilege took reasonable steps to prevent disclosure
  • The holder promptly took reasonable steps to rectify the error

What a Clawback Agrement Should Include

To promote compliance with the three conditions, the clawback agreement should address each one, clearly stating that inadvertent production of privileged material will not waive privilege, and addressing the steps that should be taken to avoid inadvertent disclosure, as well as to rectify the error, if such inadvertent disclosure occurs.  The definition of “reasonable steps” in each case is in the eye of the beholder, so it’s a good idea to establish and agree on specific steps, if possible.  The clawback agreement should also clearly define the procedure to be followed if assertion of privilege is disputed.

Because of FRE 502, if a clawback agreement is incorporated into a protective order entered by the court early in the case, it ensures court approval of the process in case there are disagreements and is binding on the parties, including third parties.  If you can’t agree on the terms of the clawback agreement with the opposing party early in the case and establishing the protection that it affords is important, you may need to file a motion with the court to get a clawback order entered.

So, what do you think?  Do your cases typically include a court-filed clawback agreement?  Have those agreements ever been used to protect inadvertently disclosed privileged information?  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.