Production

Court Denies Petitioners’ Motion to Quash, But Also Finds Subpoena Is Not Within Scope of Discovery: eDiscovery Case Law

In the case In re Verizon Wireless, Nos.: TDC-19-1744 | TDC-19-1799 | TDC-19-1806 | TDC-19-1808 | TDC-19-2118 | TDC-19-2119 | TDC-19-2120 | TDC-19-2121 | TDC-19-2122 | TDC-19-2123 (D. Md. Sept. 16, 2019), Maryland Magistrate Judge Charles B. Day denied the petitioners’ Motions to Quash the respondents’ subpoena, finding that the petitioners did not have sufficient standing to have the subpoena quashed for phone numbers owned by Prince George’s County.  However, Judge Day also found that the subpoena was overbroad and was not within the scope of discovery and, as a result, granted the petitioners’ Motions for Protective Orders.

Case Background

In this case involving claims of discrimination and retaliation against officers of color, the plaintiffs in the case served a subpoena on non-party Verizon Wireless in May 2019 seeking information as follows concerning 11 phone numbers identified in the subpoena:

“Records relating to the phone numbers attached…for the period January 1, 2016 through the present, including the time, date, duration, and destination/origin phone number for all incoming/outgoing calls, and the time, date, destination/origin phone number, and content for all text messages.”

The petitioners filed respective Motions to Quash in June 2019.  In July 2019, the plaintiffs informed Verizon by letter that they were withdrawing their subpoena request for text message records associated with the phone numbers and filed oppositions to the Named-Defendants’ Motions to Quash the same day (and filed oppositions to the Nonparty Petitioners’ Motions to Quash in August).  Later in July, the Named-Defendants filed replies to Plaintiffs’ Oppositions.

The petitioners argued that: 1) the subpoena was overly broad as it sought records and text content relating to a phone number for an entire three-year period without limiting the scope to the allegations raised in the Amended Complaint; 2) it was not reasonably calculated to lead to the discovery of admissible information and that it is not proportional to the needs of the case; and 3) even though Prince George’s County owns most of the phone numbers and issued them to employees to be used for conducting official business, the subpoena would capture not only “privileged and personal” information (such as communications with family or medical providers), it would also capture information about irrelevant police business.

Judge’s Ruling

Noting that Prince George’s County’s Electronic Information Policy “specifically states that employees have ‘no expectation of privacy regarding any information created, sent, received, or stored through or by Prince George’s County Governments electronic information systems’”, Judge Day stated: “The policy contains no caveat for disclosures to third parties, this includes the incidental personal use that is permitted by the policy. In short, while it may be permitted use, the employee is on notice that he or she should have no expectation of privacy when he or she uses a county-owned phone number.”  As a result, Judge Day ruled: “Petitioners do not have the requisite standing to have the Subpoena quashed” and denied the Motions to Quash.

However, Judge Day went on to state: “While the door of ‘standing’ is closed and locked, Petitioners effectively obtain the relief through another door regarding the scope of discovery. As discussed earlier, Petitioners contend that the Subpoena is overbroad and not proportional to the needs of this case. While they have not provided justification to have the Subpoena quashed, they do have standing to challenge the Subpoena for purposes of obtaining a protective order.”  Referring to the “storehouses of phone numbers, dates, and times of calls that would be injected into this case that have no relation to the claims and defenses of the parties” as “troubling”, Judge Day stated that “the broad swath of information sought here is not justifiable” and that “Respondents ask for too much to obtain too little”.  As a result, Judge Day granted the petitioners request that a protective order be put in place to prohibit the plaintiffs from seeking this information in the future.

So, what do you think?  Should producing a list of phone logs be considered unduly burdensome?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: eDiscovery Case Law

In Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019), Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Case Background

In this case involving alleged abuse of a child placed in a home by the defendants, the Court conducted an in-person hearing regarding the Kansas State Department of Children and Families’ (“DCF”) Amended Motion to Quash Subpoena and ultimately granted in part and denied in part the Motion to Quash on June 8, 2018, ordering DCF to produce certain records by July 31, 2018, with any responsive records subject to in-camera review to be produced directly to the Court for review.  DCF timely produced the records by July 31.  On October 24, 2018, after a review of the records submitted in-camera, the Court entered an order directing DCF to produce most of those documents to the plaintiff by November 30, 2018 and DCF timely produced those records as well.

On May 6, 2019, Plaintiff filed an instant Motion arguing DCF failed to comply with the Court’s June 28, 2018 Order because its November production did not contain six identified types of ESI in native format with associated metadata, instead producing the court-ordered documents (consisting of 5,767 pages) in PDF format on a USB flash drive.  The plaintiff asked the Court to issue an order: (1) requiring DCF to show good cause for why it should not be held in contempt of the Court’s June 28, 2018 Order; (2) requiring DCF to show good cause why it should not produce the requested ESI; and (3) imposing various sanctions on DCF pursuant to Fed. R. Civ. P. 37(b)(2)(A) for not obeying a discovery order.

Judge’s Ruling

Noting that “the subpoena asks for the records to be produced in ‘electronic format,’ but gives no specifics regarding whether the format should be PDF or native format with metadata intact”, Judge Birzer stated: “The Court is at a loss as to why Plaintiff would believe the June 8, 2018 Order required Defendant to produce the six above types of ESI when the subpoena did not specify it and the matter was not presented to the Court for consideration.”  As a result, Judge Birzer found that “the production of records in PDF format on an USB flash drive adequately satisfied DCF’s obligation under the June 8, 2018 Order, the subpoena and Rule 45” and that “there is no occasion for the undersigned Magistrate Judge to certify facts to the District Judge or to issue an order for DCF to show cause why it should not be held in contempt.”

Noting that “DCF is not a party to this action”, Judge Birzer also found that “requiring a non-party to spend time and money to re-produce 5,767 pages of PDF documents in native format with metadata would be burdensome and not proportional to the needs to the case considering Plaintiff has provided little reason as to why the native format and metadata would be relevant.”  As a result, Judge Birzer denied the plaintiff’s motion.

So, what do you think?  Could the plaintiff have done a better job of specifying its production format requirements up front?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Does Anybody Really Know What Time It Is?: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on May 9, 2011, when eDiscovery Daily was less than nine months old.

One of the things that has been clear about many of the projects I’ve managed over the years is that establishing a time zone for the project is important to do at the outset to set the time and date of emails as Outlook stores emails in Coordinated Universal Time (UTC) and the time of the email is displayed based on the time zone of the system viewing the time.  So, a workstation displaying the time of an email in Central time would display it as UTC−05:00 (at least for Central Daylight Time) as a time offset of five hours earlier than the UTC time.  So, it’s 7:11 (oh, thank heaven!) PM here in Houston, but already after midnight tomorrow in UTC time (also historically referred to as Greenwich Mean Time (GMT)).  Change the time zone of the workstation and the time (and possibly the date) will change for the same email when displayed.  As you can see below, that can potentially have an important impact on the relevancy of certain emails.  Enjoy!

Does anybody really know what time it is?  Does anybody really care?

OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority).  But, the question of what time it really is has a significant effect on how eDiscovery is handled.

Time Zone: In many litigation cases, one of the issues that should be discussed and agreed upon is the time zone to apply to the produced files.  Why is it a big deal?  Let’s look at one example:

A multinational corporation has offices from coast to coast and potentially responsive emails are routinely sent between East Coast and West Coast offices.  If an email is sent from a party in the West Coast office at 10 PM on June 30, 2015 and is received by a party in the East Coast office at 1 AM on July 1, 2015, and the relevant date range is from July 1, 2015 thru December 31, 2016, then the choice of time zones will determine whether or not that email falls within the relevant date range.  The time zone is based on the workstation setting, so they could actually be in the same office when the email is sent (if someone is traveling).

Usually the choice is to either use a standard time zone for all files in the litigation – such as UTC or the time zone where the producing party is located.  It’s important to determine the handling of time zones up front in cases where multiple time zones are involved to avoid potential disputes down the line.

Which Date to Use?: Each email and efile has one or more date and time stamps associated with it.  Emails have date/time sent, as well as date/time received.  Efiles have creation date/time, last modified date/time and even last printed date/time.  Efile creation dates do not necessarily reflect when a file was actually created; they indicate when a file came to exist on a particular storage medium, such as a hard drive. So, creation dates can reflect when a user or computer process created a file. However, they can also reflect the date and time that a file was copied to the storage medium – as a result, the creation date can be later than the last modified date.  It’s common to use date sent for emails and to use last modified date for efiles.  But, there are exceptions, so again it’s important to agree up front as to which date to use.

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

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Appellate Court Vacates Order Allowing Plaintiff’s Expert Access to Defendant’s ESI Prior to Privilege Determination: eDiscovery Case Law

In Crosmun v. Trustees of Fayetteville Technical Community College, No. COA18-1054 (N.C. Ct. App. Aug. 6, 2019), the Court of Appeals of North Carolina, holding that the trial court abused its discretion by compelling production through a protocol that provided the plaintiffs’ expert with direct access to potentially privileged information and precluded reasonable efforts by Defendants to avoid waiving any privilege, vacated the order and remand for further proceedings not inconsistent with its opinion.

Case Background

In this claim of retaliatory dismissals from the defendant’s community college in violation of the North Carolina Whistleblower Protection Act, the plaintiffs served discovery requests on the defendants, including for ESI located in the school’s computers and servers.  After expressing concerns that the defendants had destroyed responsive ESI and sending several letters, the plaintiffs filed a motion to compel requesting the trial court “[o]rder that the parties identify a computer forensics entity or individual who, at Defendants’ cost, will search the computer servers at FTCC to determine if Defendants have deleted emails and files pertaining to these discovery requests.”

From that motion to compel, the trial court ultimately entered a Protocol Order compelling discovery and entered an order, as requested by the plaintiffs, providing for a forensic examination of the defendants’ computer files by a computer forensic expert retained by the plaintiffs.  Per the order, the plaintiffs’ forensic expert would conduct keyword searches for all responsive data and also keyword searches for potentially privileged data. Documents retrieved in responsive searches that were not identified as privileged were ordered to be delivered directly to the plaintiffs, without the defendants being able to review them for privilege. The defendants appealed the order, contending that it amounted to an involuntary waiver of their attorney-client privilege and the work-product doctrine.

Appellate Court Ruling

The appellate court ruling, written by Judge Lucy Inman, started out by noting: “Seeking justice often involves enduring tedium” and also noted that “ESI has become so pervasive that the volume of ESI involved in most cases dwarfs the volume of any paper records”.  No kidding.  Despite that, the court noted that “North Carolina authority regarding eDiscovery is bare bones.”

Relying on decisions from other courts around the country as well as Sedona Conference principles, the appellate court ruled: “In short, the Protocol Order provides Plaintiffs’ agent direct access to privileged information, which disclosure immediately violates Defendants’ privileges. It furthers that violation by directing that agent, having attempted to screen some privileged documents out through the use of search terms, to produce potentially responsive documents without providing Defendants an opportunity to examine them for privilege. If, following that continued violation, Plaintiffs—their agent notwithstanding—receive privileged documents, Defendants must attempt to clawback that information, reducing their privilege to a post-disclosure attempt at unringing the eDiscovery bell. Such compelled disclosure of privileged information is contrary to our law concerning both attorney-client privilege and work-product immunity…As a result, we hold the trial court misapprehended the law concerning attorney-client privilege and the work-product immunity (however understandably given its undeveloped state within the eDiscovery arena), vacate the Protocol Order, and remand for further proceedings.”

So, what do you think?  Should parties ever be granted access to ESI before the producing party can perform a privilege review?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Quality Control, Making Sure the Numbers Add Up: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on September 18, 2012 – when eDiscovery Daily was not quite two years old.  While it doesn’t exactly link to our just concluded two part series, it does tie in nicely and has been referenced in numerous webcasts since.  Our seven-custodian example might be a bit light for the amount of email we get today, but it’s still a relevant exercise.  Enjoy!

Let’s walk through a scenario to show how the files collected are accounted for during the discovery process.

Tracking the Counts after Processing

We know there are typical categories of excluded files after processing: filtered files, NIST (National Institute of Standards and Technology list of files that are known to have no evidentiary value) and system files, exception files and duplicate files.  These can be a significant portion of the collection.  Obviously, what’s not excluded is available for searching and review.  Even if your approach includes a technology assisted review (TAR) methodology such as predictive coding, it’s still likely that you will want to do some culling out of files that are clearly non-responsive.

Documents during review may be classified in a number of ways, but the most common ways to classify documents as to whether they are responsive, non-responsive, or privileged.  Privileged documents are also typically classified as responsive or non-responsive, so that only the responsive documents that are privileged need be identified on a privilege log.  Responsive documents that are not privileged are then produced to opposing counsel.

Example of File Count Tracking

So, now that we’ve discussed the various categories for tracking files from collection to production, let’s walk through a fairly simple eMail-based example.  We conduct a fairly targeted collection of a PST file from each of seven custodians in a given case.  The relevant time period for the case is January 1, 2010 through December 31, 2011.  Other than date range, we plan to do no other filtering of files during processing.  Duplicates will not be reviewed or produced.  We’re going to provide an exception log to opposing counsel for any file that cannot be processed and a privilege log for any responsive files that are privileged.  Here’s what this collection might look like:

  • Collected Files: 101,852 – After expansion, 7 PST files expand to 101,852 eMails and attachments.
  • Filtered Files: 23,564 – Filtering eMails outside of the relevant date range eliminates 23,564 files.
  • Remaining Files after Filtering: 78,288 – After filtering, there are 78,288 files to be processed.
  • NIST/System Files: 0 – eMail collections typically don’t have NIST or system files, so we’ll assume zero files here. Collections with loose electronic documents from hard drives typically contain some NIST and system files.
  • Exception Files: 912 – Let’s assume that a little over 1% of the collection (912) is exception files like password protected, corrupted or empty files.
  • Duplicate Files: 24,215 – It’s fairly common for at least 30% of the collection to include duplicates, so we’ll assume 24,215 files here.
  • Remaining Files after Processing: 53,161 – We have 53,161 files left after subtracting NIST/System, Exception and Duplicate files from the total files after filtering.
  • Files Culled During Searching: 35,618 – If we assume that we are able to cull out 67% (approximately 2/3 of the collection) as clearly non-responsive, we are able to cull out 35,618 files.
  • Remaining Files for Review: 17,543 – After culling, we have 17,543 files that will actually require review (whether manual or via a TAR approach).
  • Files Tagged as Non-Responsive: 7,017 – If approximately 40% of the document collection is tagged as non-responsive, that would be 7,017 files tagged as such. Results can vary widely on the document collection, culling accuracy and review process, of course.
  • Remaining Files Tagged as Responsive: 10,526 – After QC to ensure that all documents are either tagged as responsive or non-responsive, this leaves 10,526 documents as responsive.
  • Responsive Files Tagged as Privileged: 842 – If roughly 8% of the responsive documents wind up being privileged, that would be 842 privileged documents. Again, the number of responsive files can vary widely, depending on the file collection and privilege considerations.
  • Produced Files: 9,684 – After subtracting the privileged files, we’re left with 9,684 responsive, non-privileged files to be produced to opposing counsel.

The percentages I used for estimating the counts at each stage are just examples, so don’t get too hung up on them.  The key is to note the numbers in red above.  Excluding the interim counts in black, the counts in red represent the different categories for the file collection – each file should wind up in one of these totals.  What happens if you add the counts in blue* together?  You should get 101,852 – the number of collected files after expanding the PST files.  As a result, every one of the collected files is accounted for and none “slips through the cracks” during discovery.  That’s the way it should be.  If not, investigation is required to determine where files were missed.

So, what do you think?  Do you have a plan for accounting for all collected files during discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

*Why blue?  Because we did red last time!  :o)

P.S. — Happy Anniversary, honey!  I’m the luckiest man around!  If you don’t believe me, check out this post!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

When Preparing Production Sets, Quality is Job 1: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on December 2, 2011 – when eDiscovery Daily was a little more than a year old and continues our two-part series from two Thursdays ago.  Several updates have been applied, so take note!  Enjoy!

OK, I admit I stole the “Quality is Job 1” line from an old Ford commercial;o)

Last time, we talked about addressing parameters of production up front to ensure that those requirements make sense and avoid foreseeable production problems well before the production step.  Today, we will talk about quality control (QC) mechanisms to make sure that the production is complete and accurate.

Quality Control Checks

There are a number of checks that can and should be performed on the production set, prior to producing it to the requesting party.  Here are some examples:

  • File Counts: The most obvious check you can perform is to ensure that the count of files matches the count of documents or pages you have identified to be produced. However, depending on the production, there may be multiple file counts to check:
    • Image Files: If you have agreed with opposing counsel to produce images for all documents, then there will be a count of images to confirm. If you’re producing multi-page image files (typically, PDF or TIFF), the count of images should match the count of documents being produced.  If you’re producing single-page image files (usually TIFF), then the count should match the number of pages being produced.  One notable exception that has become common since this post was originally written is that many image productions these days still often include native productions for Excel and (in some cases) PowerPoint files.  Excel files are often not formatted for printing, so they don’t print well and many parties want to see the underlying formulas, so they get produced natively.  Even in that case, a placeholder image is still produced for each Excel file, so the number of images should match the number of documents or pages (if producing single page text files, count each Excel placeholder image as one page).
    • Text Files: When producing image files, you’ll also usually be producing searchable text files, which will generally be multi-page and should match the number of documents being produced. If there are files with no text in them, you typically still produce a placeholder to indicate as such so that opposing counsel is aware that there was no text to produce.
    • Native Files: Native files (if produced) are of course at the document level, so if you are producing native files, you would want to confirm the correct count for native files you are producing. This goes for partial native file productions as well, so if you are producing images with native production for Excel files, you’ll want to make sure the total number of native files matches the number of Excel files you were expecting to produce.
    • Subset Counts: If the documents are being produced in a certain organized manner (e.g., a folder for each custodian), it’s a good idea to identify subset counts at those levels and verify those counts as well. Not only does this provide an extra level of count verification, but it helps to find the problem more quickly if the overall count is off.
    • Verify Counts on Final Production Location: If you’re verifying counts of the production set before copying it to the final production location (which, these days, is either FTP location or hard drive), you will need to verify those counts again after copying to ensure that all files made it to the final location.
  • Sampling of Results: Unless the production is very small, it’s impractical to open every last file to be produced to confirm that it is correct. However, you can still consider employing accepted statistical sampling procedures (such as those described here and here for searching) to identify an appropriate sample size and randomly select that sample to open and confirm that the correct files were selected, HASH values of produced native files match the original source versions of those files, images are clear and text files contain the correct text.
  • Redacted Files: If any redacted files are being produced, each of these (not just a sample subset) should be reviewed to confirm that redactions of privileged or confidential information made it to the produced image, text and native file. Many review platforms overlay redactions which have to be burned into the images at production time, so it’s easy for mistakes in the process to cause those redactions to be left out, or the redactions may not be carried forward to the text or native files.  It’s very important to check them all.
  • Inclusion of Logs: Depending on agreed upon parameters, the production may include log files such as:
    • Production Log: Listing of all files being produced, with an agreed upon list of metadata fields to identify those files.
    • Privilege Log: Listing of responsive files not being produced because of privilege (and possibly confidentiality as well). This listing often identifies the privilege being asserted for each file in the privilege log.
    • Exception Log: Listing of files that could not be produced because of a problem with the file. Producing these logs is less common, but could be necessary if questions come up about the comprehensiveness of the production.

Each production will have different parameters, so the QC requirements will differ, so there are examples, but not necessarily a comprehensive list of all potential QC checks to perform.

So, what do you think?  Can you think of other appropriate QC checks to perform on production sets?  If so, please share them!  As well as any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Defendant’s Motion to Compel Production of Documents and Metadata: eDiscovery Case Law

Yes, it’s that time of year!  Time for another Shark Week on the Discovery Channel, which means only one thing – it’s time for Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily).  That means a week full of case law, with our webcast on Wednesday regarding Key eDiscovery Case Law Review for First Half of 2019 in between!  Here’s the first case of Case Week!

In Washington v. GEO Group, Inc., No. 17-5806 RJB (W.D. Wash. July 1, 2019), Washington District Judge Robert J. Bryan denied the defendant’s Motion to Compel Production of Documents and Metadata, ruling that the defendant “fails to identify a specific response for production to which the State did not respond”, that the defendant “has not shown that the [metadata] is relevant and proportional to the needs of the case” and that the “the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

Case Background

In this unjust enrichment case filed by the State of Washington against a private corporation that operates a detention facility, the defendant filed a motion in August 2018 for an order compelling the State to produce information from various State agencies related to State work programs, maintaining that the information was “extremely relevant to GEO’s affirmative defenses of unclean hands and laches.”  The State opposed the motion, arguing that the State Agencies were not parties to the case and that the State agencies were better positioned to respond themselves.  In October 2018, the defendant’s motion to compel was granted.

Subsequently, the defendant moved for an order compelling the State to produce: 1) relevant information from all agencies for (a) the State’s use of work programs at its correctional or rehabilitation facilities, including why it pays some (but not all) work program participants market wages, whether the participants are volunteers, the hours worked, duties performed, and pay rates for participants, and the State’s use of contractors to assist in the operation of work programs and (b) the State’s assessment of federal and/or state law as it relates to the operation of work program; 2) accurate and complete metadata for all of its productions, including custodian and author information, dates of creation and modification, and file path without modification; and 3) logged documents on the common interest privilege log that are missing date, author, sender, recipient, or subject matter information and communications between third parties for which no basis for common interest privilege exists.

Judge’s Ruling

Regarding the motion to compel documents regarding work programs, Judge Bryan stated: “GEO’s motion to compel documents regarding the work programs should be denied. The State argues that it reviewed thousands of pages of discovery from five agencies and produced hundreds of pages responsive to the requests for production. GEO fails to identify a specific response for production to which the State did not respond. In its reply, it identifies ‘discovery categories’ and then collectively cites 17 requests for production that it asserts applies.  This is not sufficient and the motion should be denied.”

Regarding the motion to compel accurate metadata, Judge Bryan stated: “GEO’s motion for an order compelling the State to produce accurate metadata should be denied. The State indicates that it has complied with the October 2, 2018 Order to the extent that it was able, particularly as it relates to the custodians. Further, GEO has not shown that the information is relevant and proportional to the needs of the case.”

Regarding the motion to compel related to common privilege log, Judge Bryan stated: “GEO’s motion to compel either an updated common privilege log or the documents for which the State has failed to meet its burden should be denied. The State has now produced an updated log. Moreover, it appears that the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

As a result, Judge Bryan denied the defendant’s motion to compel.

So, what do you think?  Should the motion to compel have been denied?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Despite Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: eDiscovery Case Law

In Opternative, Inc. v. Jand, Inc., 17-CV-6936 (RA)(SN) (S.D.N.Y. July 12, 2019), New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files.  Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.

Case Background

In this case involving alleged unlawful use of information that the plaintiff claimed the defendant used to launch a competing online eye-examination service, a big part of the case came down to source code.  The parties agreed to a protective order where “any material designated as ‘Highly Confidential — Source Code’ will not be produced in a native format…Instead, the source code must be ‘made available for inspection, in a format allowing it to be reasonably reviewed and searched, during normal business hours or at other mutually agreeable times at an office of the Producing Party’s counsel or another mutually agreed upon location’…The on-site review is highly circumscribed…It must be conducted in a ‘secured room without Internet access or network access to other computers’…The inspecting party is prohibited from copying, removing, or transferring any files from the secure location…The inspecting party may, however, request printouts ‘of limited portions of source code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, discovery responses, or demonstratives (‘Papers’), or for deposition or trial, but shall not request paper copies for the purposes of reviewing the source code other than electronically.’”

Pursuant to that Order, the plaintiff designated the source code of an alleged prototype developed by Brian Strobach as highly confidential source code and the defendant’s counsel and its expert witness inspected the source code at the offices of Plaintiff’s counsel in May 2019, for about five hours.  The defendant followed up with that review by requesting printouts of twenty files, consisting of as much as 12,000 lines of code.  The plaintiff responded that it believed that this request was not compliant with the Protective Order, but that it “would be happy to consider a narrower request.”  In response, Defendant narrowed its request to printouts of: (1) two files of source code comprising 354 lines of code fitting on 6 pages; (2) a log file; and (3) a directory of the files contained in the source code written by Strobach.  The plaintiff refused, arguing that the request for the two files was not compliant with the protective order and that it would produce the log file and directory only if the defendant agreed to a reciprocal exchange.

Judge’s Ruling

With regard to the source code request and the plaintiff’s objections, Judge Netburn characterized the plaintiff’s belief that the Protective Order may allow for the use of printouts during a deposition, but that it prohibits requests for the purpose of preparing for the deposition as “frivolous”, stating “[t]hat definition would require attorneys writing their deposition outlines to sit in a secured room with the source code, away from their offices, without access to the internet or any other network. That is a significant burden that also would do nothing to promote the confidentiality of the source code.”  With regard to the plaintiff’s other objection that the defendant did not articulate why these two files were reasonably necessary for Strobach’s deposition, Judge Netburn ruled that the defendant had provided “a reasonably necessary basis for the request” that “likely would [not] be narrowed with further on-site review.”

With regard to the log file request, Judge Netburn referred to the impasse as “truly strange” and ordered the plaintiff to produce the file, ruling that “Plaintiff has not demonstrated anything resembling good cause” for denying the request and that their contention of the defendant’s definition of “Highly Confidential — Source Code” was “an airing of grievances” and “not a basis for denying Defendant’s motion.”

As for the file directory request, Judge Netburn denied the defendant’s motion without prejudice, stating: “Instead of blindly tilting the balance of this standoff, the Court will reserve its judgment. If Plaintiff or Defendant is unable to obtain file directories to its satisfaction, then they should file properly supported briefing with the Court.”

So, what do you think?  Do you agree with the judge’s reasons for ordering production of the source code and log file?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Production is the “Ringo” of the eDiscovery Phases: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on December 1, 2011 – when eDiscovery Daily was a little more than a year old.  Back then, we had only 65 posts related to case law, now, we’re close to nine years old and have 689 posts related to case law (covering over 530 unique cases).  Case law has evolved over the years, especially since the 2015 Federal Rules changes impacted rulings on sanctions and proportionality, among other things.  And, we have seen more cases related to disputes over production format, as some (but not enough) requesting parties are realizing that requesting native productions gives them more metadata about the produced ESI (while also making it more “tamper-proof”).

We’ve noted that 80% of the costs associated with eDiscovery are in the Review phase and that volume of data and sources from which to retrieve it (including social media and “cloud” repositories) are growing exponentially.  Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis).

All of those phases lead to one inevitable stage in eDiscovery: Production.  Yet, few people talk about the actual production step.  If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, the Production phase is still the “Ringo” of eDiscovery phases, not talked about enough – even though it’s arguably the most crucial step of all.

It’s the final crucial step in the process, and if it’s not handled correctly, all of the due diligence spent in the earlier phases could mean nothing.  So, it’s important to plan for production up front and to apply a number of quality control (QC) checks to the actual production set to ensure that the production process goes as smooth as possible.

Planning for Production Up Front

When discussing the production requirements with opposing counsel, it’s important to ensure that those requirements make sense, not only from a legal standpoint, but a technical standpoint as well.  Involve support and IT personnel in the process of deciding those parameters as they will be the people who have to meet them.  Issues to be addressed include, but not limited to:

  • Format of production (e.g., paper, images or native files);
  • Organization of files (e.g., organized by custodian, legal issue, etc.);
  • Numbering scheme (e.g., Bates labels for images, sequential file names for native files);
  • Handling of confidential and privileged documents, including log requirements and stamps to be applied;
  • Handling of redactions;
  • Format and content of production log;
  • Production media (e.g., CD, DVD, portable hard drive, FTP, etc.).

I was involved in a case years ago where opposing counsel was requesting an unusual production format where the names of the files would be the subject line of the emails being produced (for example, “Re: Completed Contract, dated 12/01/2011”).  Two issues with that approach: 1) The proposed format only addressed emails, and 2) Windows file names don’t support certain characters, such as colons (:) or slashes (/).  I provided that feedback to the attorneys so that they could address with opposing counsel and hopefully agree on a revised format that made more sense.  So, let the tech folks confirm the feasibility of the production parameters.

The workflow throughout the eDiscovery process should also keep in mind the end goal of meeting the agreed upon production requirements.  So, you can adversely impact production long before you get to the production step.

Next week, we will talk about preparing the production set and performing QC checks to ensure that the ESI being produced to the requesting party is complete and accurate.

So, what do you think?  Have you had issues with production planning in your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Plaintiff Requests His Entire PST File, Court Says No: eDiscovery Case Law

In Russell v. Kiewit Corp., No. 18-2144-KHV (D. Kan. June 4, 2019), Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion seeking to compel supplemental discovery responses by the seven defendants, including the request to receive his entire e-mail personal storage (PST) file, agreeing with the defendants’ contention that the request was overly broad and not proportional.

Case Background

In this case where the plaintiff alleged he was fired in retaliation for opposing age discrimination, disability discrimination, and FMLA violations in the workplace through his role in the defendant’s human resources department, the parties had several unresolved issues that they could not agree on with regard to discovery.  The defendants proposed that the scope of electronic discovery would run from May 27, 2015 through April 22, 2016 and focus on specifically identified custodians using agreed and limited search terms, but the plaintiff did not agree with those propose limitations.

Among the areas where there were disputes were: 1) plaintiff’s email, where the plaintiff moved to compel defendants to produce the e-mail file from his entire employment with defendants as a PST file; 2) the scope of discovery searches; 3) discovery requests to additional entities beyond the plaintiff’s employer; and 4) the plaintiff’s request for policies related to the HR and IT operations of the defendants for whom plaintiff was not an employee.  The parties did resolve their dispute over production of the data from plaintiff’s company-issued iPhone.

Judge’s Ruling

With regard to production of the plaintiff’s PST file, the plaintiff argued that the defendants had an unfair advantage by having access to e-mails that the plaintiff could not access, also arguing that it was proportional to allow him to “see all emails in context maintained in his own email folders” because it “equalizes access.”  The defendants argued the plaintiff’s request was overly broad and not proportional, asserting they had searched for all terms requested by plaintiff, as well as many additional search terms not requested by plaintiff, and produced all responsive e-mails.

With regard to this dispute, Judge O’Hara stated: “The court agrees with defendants. Rule 26(b)(3)(c) relates to a party’s ‘own previous statement about the action or its subject matter.’ To the extent plaintiff seeks his own e-mails related to this action, those were captured in the e-mails defendants produced in response to plaintiff’s search terms, plus the additional terms defendants searched…Conspicuously, plaintiff has not cited any authority for the proposition that Rule 26(b)(3)(C) requires the production of all statements plaintiff has ever made in an e-mail about any subject, such that his entire e-mail file during his tenure with Kiewit Energy must be produced.

Although plaintiff is entitled to request the production of files in .pst format, which are ‘generally associated with the Microsoft Outlook email program,’ Document Request No. 29 seeks the entire file for the ‘email account assigned to plaintiff during his employment with defendants.’  Plaintiff purports to address the ‘proportionality standpoint’ by arguing the .pst file would allow him to more efficiently review the file. But producing the entire PST is ‘simply requesting discovery regardless of relevancy,’ which most definitely is not the standard under the 2015 amendments to Rule 26(b). The language in Document Request No. 29 is not tied to plaintiff’s protected activity or his employment with the company; rather, plaintiff requests the entire e-mail account during the entire length of his employment. That request is facially overly broad and not proportional. Plaintiff has not shown how every e-mail he has sent and received is relevant to this action, particularly in light of defendants’ production of 775 documents from e-mail searches.  The court sustains defendants’ objection to Document Request No. 29.”

Judge O’Hara also found that “defendants have adequately responded to plaintiff’s discovery requests” and rejected his requests for ESI from other entities, sustaining the defendants’ objection that the requests were overly broad and not proportional.

So, what do you think?  Should a former employee have the right to look at his or her entire email repository in litigation?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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