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eDiscovery Case Law: Produced ESI Doesn’t Need to be Categorized, Even When Voluminous

In United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, (S.D.N.Y. Nov. 4, 2011), defendants’ motion to have the Government in a criminal antitrust conspiracy case organize and format its discovery production to indicate which of four categories of collusion each document or electronic file related to was denied. The Government was “under no general obligation to identify or sort Brady material within even an extremely voluminous disclosure.”

Defendants were charged with conspiring to rig bids and fix prices on municipal derivatives. They asked for an order requiring the Government “to produce discrete collections of documents and electronic files that relate to four categories of transactions, and that such production be organized and formatted so as to indicate to which of those four categories each document or electronic file relates.” Defendants contended that the categories correlated to different aspects of the Government’s theory of collusion and that the categorization of overt acts that the Government was expected to prove at trial “would be useful to impeach the testimony of cooperating witnesses who will testify as to Defendants’ intent in entering into the Featured Transactions.”

The court denied defendants’ motion. Brady materials already produced to defendants in mostly searchable format did not have to be produced again “in categorized batches” relating “to transactions with certain characteristics.” The court stated: “Absent prosecutorial misconduct — bad faith or deliberate efforts to knowingly hide Brady material — the Government’s use of ‘open file’ disclosures, even when the material disclosed is voluminous, does not run afoul of Brady.” While the court acknowledged its discretion regarding defendants’ motion, the Government had provided searchable electronic documents, defendants had corporate assistance and could assist in their own defense since they were not being incarcerated before trial, and each defendant was represented by “prominent, sophisticated counsel.” The collapse of the law firm serving as the technical coordinator for the defendants’ discovery review platform “while unfortunate, does not alter the inescapable conclusion here: Defendants are anything but impoverished and certainly not so incapacitated as to warrant shifting such a substantial portion of the burden of preparing their defense to the Government.”

So, what do you think?  Was that an appropriate ruling, given the volume of ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

eDiscovery Case Law: Facebook Content Discoverable Yet Again

It seems most, if not all, of the cases these days where discoverability of social media is at issue are being decided by courts in favor of the parties seeking to discover this information.  Here’s another example.

In Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) the court ruled that the plaintiff’s Facebook information was discoverable as being relevant and not privileged and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days, giving the defendant a 21-day window to inspect the plaintiff’s Facebook profile (after which she was allowed to change her password).

In this case, one of the plaintiffs claimed that a motorcycle accident caused by the defendant left her with chronic physical and mental pain. During a deposition of one of the plaintiffs, the defendant learned that she had a Facebook account and had accessed it as recently as the night before the deposition.  The defendant had reason to believe that the plaintiff had posted pictures of herself on Facebook enjoying life with her family as well as a status update about going to the gym. Accordingly, the defendant filed a Motion to Compel, demanding that the plaintiff provide her Facebook username and password to enable the defendant to demonstrate that the plaintiff’s injuries aren’t as bad as she claimed.

The defendant cited two cases where discovery of social network content was granted: Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).  The plaintiffs responded with two cases where courts denied discovery of Facebook material: Piccolo v. Paterson, No. 2009-4979 (Pa. C.P. Bucks May 6, 2011) and Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan 15, 2011).

The court considered the following factors in ruling for the defendant:

  • Relevancy: Since the plaintiff claimed that “she suffers from, among other things, chronic physical and mental pain” and that the defendant claimed that the plaintiff’s “formerly public Facebook account included status updates about exercising at a gym and photographs depicting her with her family that undermine her claim for damages” the court ruled that the information sought by the defendant is “clearly relevant”.
  • Privilege and Privacy: The court noted that there “is no confidential social networking privilege under existing Pennsylvania law” and that there is “no reasonable expectation of privacy in material posted on Facebook”.
  • Stored Communications Act of 1986 (SCA): While the SCA places limits on the government’s ability to compel Internet Service Providers (ISPs) to disclose information about their users, only one court has addressed whether Facebook is an entity covered by the SCA: Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010).  In that case, it was ruled that the information being sought directly from Facebook (and other social networking sites) was protected under the SCA, but this court ruled that the SCA does not apply in this case because the plaintiff “is not an entity regulated by the SCA.”
  • Breadth of Discovery Request: The court noted that the plaintiff’s contention that the defendant’s motion is “akin to asking her to turn over all of her private photo albums and requesting to view her personal mail” is “mistaken” as content posted on Facebook is not private.  So, such a request would not “cause unreasonable annoyance, embarrassment, oppression, burden or expense” as the cost to investigate the plaintiff’s Facebook information would be borne by the defendant.

As a result, the court ruled in favor of the defendant and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days.  Hopefully, the plaintiff doesn’t resort to tampering with the content on their Facebook page.

So, what do you think?  Assuming relevance, should all parties be required to produce social media information? Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from all of us at eDiscovery Daily and CloudNine Discovery!

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

“Spoliation of evidence” refers to the deliberate destruction of evidence prior to a trial.  It is a rare event in civil litgation.  But, spoliation of evidence was found in a case involving a personal injury lawyer in Virginia.  Lawyer Matthew Murray was ordered to pay $522,000 for instructing his client to remove photos from his Facebook age.  His client was ordered to pay $180,000 for obeying his instructions.  A state district judge issued these sanctions in the case of Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011).

Murray was found to have told his client to remove pictures, such as the one of him holding a beer and wearing a t-shirt that said “I ♥ hot moms.”  The client was a recent widower suing about the death of his wife.

In this case, the defendant was able to show via expert testimony that the widower deleted 15 photos from his Facebook account and perhaps a 16th.  The photos were provided to the defendant later, before the trial.  The jury found in favor of Mr. Lester and awarded $10 million.  Subsequent to the trial, the judge ordered that Plaintiff’s counsel provide copies of emails between the lawyer and his client to the court for in camera inspection (i.e., for the judge’s eyes only).  When the district judge ordered production of these emails, he ruled that emails related to Defendant’s request for production were not attorney-client privileged.

This all started when one of the defense lawyers apparently “hacked” into Mr. Lester’s Facebook page via a mutual friend and observed the photos showing Mr. Lester as apparently non too distraught over his wife’s death.

The court found that the plaintiff, Isaiah Lester, lied about his depression and treatment.  The court found that Murray told Lester via email “to clean up” his Facebook page and told the client that “blow-ups” of pictures like the “I [heart] hot moms” photo would cause problems at trial.  Lester deactivated his Facebook page.  A few days later, in responding to discovery requests, the plaintiff said he did not have a Facebook account.  The defendants complained – at this point they knew Lester had or should have a Facebook account.  Murray then asked Lester to reactivate his account.  The plaintiff’s lawyer also provided hard copies of the 16 photos to the defense.

At his subsequent deposition, Mr. Lester lied about what he had done and denied he had deactivated his Facebook account.

Defendants then issued a subpoena duces tecum for emails between Lester and his lawyer for the time period when the request for production was issued.  Plaintiff resisted.  The defense then filed a motion to compel.  The court required a privilege log of the disputed emails.  The judge found the initial privilege log deficient.  When Murray finally produced the incriminating email, he claimed its prior omission was error and blamed the omission on a paralegal, ultimately leading to the sanctions.

So, what do you think?  Were those sanctions fair or were they excessive? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: San Antonio Employment Law Blog.

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

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?
 

Many of you have Android phones.  I do, as well.  As you may know, Android is Google’s operating system for phones and Android phones have become extraordinarily popular.

However, as noted in this Computerworld UK article, it may be a failure in searching that ironically may cost Google big time in its litigation with Oracle over the Android operating system.

Google is currently involved in a lawsuit with Oracle over license fees associated with Java.  Oracle acquired Java when it purchased Sun Microsystems and many companies license Java.  Java forms a critical part of Google’s Android operating system and Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.  Android has been so successful for Google that a loss to Oracle could result in billions of dollars in damages.

To cull down a typically large ESI population, Google turned to search technology to help identify potentially responsive and potentially privileged files.  Unfortunately for Google, a key email was produced that could prove damaging to their case.  The email was written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google. With Oracle having threatened to sue Google for billions of dollars, Lindholm was instructed by Google executives to identify alternatives to Java for use in Android, presumably to strengthen their negotiating position.

"What we've actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome," the email reads in part, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

Lindholm added the words “Attorney Work Product” and sent the email to Andy Rubin (Google’s top Android executive) and Google in-house attorney Ben Lee.  Unfortunately, Lindholm’s computer saved nine drafts of the email while he was writing it – before he added the words and addressed the email to Lee.  Because Lee's name and the words "attorney work product" weren't on the earlier drafts, they weren't picked up by the eDiscovery software as privileged documents, and they were sent off to Oracle's lawyers.

Oracle's lawyers read from the email at two hearings over the summer and Judge William Alsup of the U.S. District Court in Oakland, California, indicated to Google's lawyers that it might suggest willful infringement of Oracle's patents.  Google filed a motion to "clawback" the email on the grounds it was "unintentionally produced privileged material." Naturally, Oracle objected, and after a three-month legal battle, Alsup refused last month to exclude the document at trial.

How did Google let such a crucial email slip through production?  It’s difficult to say without fully knowing their methodology.  Did they rely too much on technology to identify files for production without providing a full manual review of all files being produced?  Or, did manual review (which can be far from perfect) let the email slip through as well?  Conceivably, organizing the documents into clusters, based on similar content, might have grouped the unsent drafts with the identified “attorney work product” final version and helped to ensure that the drafts were classified as intended.

So, what do you think?  Could this mistake cost Google billions?  Please share any comments you might have or if you’d like to know more about a particular topic.

 

eDiscovery Rewind: Eleven for 11-11-11
 

Since today is one of only 12 days this century where the month, day and year are the same two-digit numbers (not to mention the biggest day for “craps” players to hit Las Vegas since July 7, 2007!), it seems an appropriate time to look back at some of our recent topics.  So, in case you missed them, here are eleven of our recent posts that cover topics that hopefully make eDiscovery less of a “gamble” for you!

eDiscovery Best Practices: Testing Your Search Using Sampling: On April 1, we talked about how to determine an appropriate sample size to test your search results as well as the items NOT retrieved by the search, using a site that provides a sample size calculator. On April 4, we talked about how to make sure the sample set is randomly selected. In this post, we’ll walk through an example of how you can test and refine a search using sampling.

eDiscovery Best Practices: Your ESI Collection May Be Larger Than You Think: Here’s a sample scenario: You identify custodians relevant to the case and collect files from each. Roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose “efiles” is collected in total from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform first pass review and, eventually, linear review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!! What happened?!?

eDiscovery Trends: Why Predictive Coding is a Hot Topic: Last month, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

eDiscovery Best Practices: Does Anybody Really Know What Time It Is?: 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.

eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency: Insanity is doing the same thing over and over again and expecting a different result. But, in ESI review, it can be even worse when you get a different result. Most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything: There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.” When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI. However, forensic imaging of media is usually not necessary for Discovery purposes.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off: Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule. While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.

eDiscovery Best Practices: Checking for Malware is the First Step to eDiscovery Processing: A little over a month ago, I noted that we hadn’t missed a (business) day yet in publishing a post for the blog. That streak almost came to an end back in May. As I often do in the early mornings before getting ready for work, I spent some time searching for articles to read and identifying potential blog topics and found a link on a site related to “New Federal Rules”. Curious, I clicked on it and…up popped a pop-up window from our virus checking software (AVG Anti-Virus, or so I thought) that the site had found a file containing a “trojan horse” program. The odd thing about the pop-up window is that there was no “Fix” button to fix the trojan horse. So, I chose the best available option to move it to the vault. Then, all hell broke loose.

eDiscovery Trends: An Insufficient Password Will Thwart Even The Most Secure Site: Several months ago, we talked about how most litigators have come to accept that Software-as-a-Service (SaaS) systems are secure. However, according to a recent study by the Ponemon Institute, the chance of any business being hacked in the next 12 months is a “statistical certainty”. No matter how secure a system is, whether it’s local to your office or stored in the “cloud”, an insufficient password that can be easily guessed can allow hackers to get in and steal your data.

eDiscovery Trends: Social Media Lessons Learned Through Football: The NFL Football season began back in September with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season. An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration: In her article "E-Discovery 'Command' Culture Must Collapse" (via Law Technology News), Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is "doomed to failure" – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

So, what do you think?  Did you learn something from one of these topics?  If so, which one?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryDaily would like to thank all veterans and the men and women serving in our armed forces for the sacrifices you make for our country.  Thanks to all of you and your families and have a happy and safe Veterans Day!

eDiscovery Trends: Madoff Ponzi Scheme Case Documents May Be Turned Over to eData Rooms and Special Masters
 

The trustee responsible for coordinating the recovery of assets and data involved in Bernard L. (“Bernie”) Madoff's $65 billion Ponzi fraud investigation is presently seeking to secure special masters and create an "eData room" to ensure that the enormous volume of data accumulated during this worldwide investigation is collected and retained.  For more on the increasing use of special masters to facilitate eDiscovery cases, click here).

Almost three years after Madoff's arrest in December 2008, the massive fraud investigation has now spawned roughly 900 lawsuits worldwide involving 16,000 parties in 30 countries. The number of files and documents related to Madoff's Ponzi scheme is equally astronomical – and as perhaps the most significant fraud case of the decade – or even the century – these documents and lawsuits contain information vital as precedent for future criminal cases.

As a result, trustee Irving Picard has determined to collect all of the ESI related to these cases in a single eData room with the help of special masters that would be appointed by US bankruptcy Judge Burton Lifland.  eData rooms are web-based review platforms that can support centralized access of the ESI in question for all approved parties.

As the use of technology becomes more of a key issue in fraud cases, discovery of ESI associated with that technology is becoming ever more important in the practice of law, making a historic case like Madoff's vital as precedent. In November 2010, Picard created the first "e-discovery room", but the new "eData room" would be a much bigger project, containing all the ESI related in any way to Madoff's Ponzi scheme and making it available through a web-based platform for access and review. This new eData room, proposed in January 2011, would be limited to roughly 100,000 potentially responsive documents from 77 parties associated with a related case in which the defendant (J. Ezra Merkin) demanded production of every subpoenaed document in the initial bankruptcy proceeding as well as depositions in other proceedings.

The prospect of this eData room necessitates a complex series of discovery requests and confidentiality agreements, but Irving has already secured the tacit approval of all but 15 of the 16,000 parties, (large financial institutions, including UBS, Bank of America, Merrill Lynch International, Bank of New York Mellon and Sterling Equities, the investment group chaired by New York Mets owner Fred Wilpon) who objected to the prospect of pooling confidential documents where they could be accessed by thousands of parties including their business competitors. To address those concerns, Picard submitted a revised proposed order in September to exclude certain types of documents as confidential and give producing parties 60 days to object to the inclusion of “highly sensitive commercial information” in the eData room.  It will be interesting to see if the revisions pave the way for full acceptance to implement the eData room.

So, what do you think? Are eData rooms going to become commonplace in complex cases involving eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Horrors! Does This Scare You?
 

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so it seems appropriate to try to “scare” you in a different way.  Does this scare you?

Although the court declined to re-open the case, it found that defendant had committed discovery abuses, including failing to disclose relevant evidence and failing to issue a litigation hold; therefore, the court ordered the defendant to pay plaintiff an additional $250,000 over the previously agreed settlement amount.  The court further ordered that defendant had thirty days to furnish a copy of the court’s Memorandum Opinion and Order “to every Plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years” and issued an additional $500,000 sanction to be “extinguished” upon a showing of compliance.

What about this?

Even though many (but not all) of the documents were recovered (most from backup tape), the court rejected the defendant’s argument that “there can be no spoliation finding because many documents were recovered” and eventually produced, stating: "The fact that technology permits the undoing of spoliation does not change at all the fact that spoliation has occurred."

Or this?

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”

How about this?

The court concluded based on case history that “emails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally” and found that the evidence that the defendant had authored these text messages was absent.

Scary, huh?  If the possibility of sanctions and changing court requirements keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you really want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

eDiscovery Case Law: U.S. Court Rules on ECPA Protection of Emails in the Cloud
 

An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

In Suzlon Energy Ltd v. Microsoft Corporation, the court determined that holders of online accounts whose servers are located in the U.S., regardless of their location or nationality, are protected by the Electronic Communications Privacy Act of 1986, commonly known as the "ECPA." The ECPA ensures that the disclosure of emails by electronic communication service providers is limited and restricted to specific circumstances.

The Suzlon case originated out of an Australian case brought by an Indian company (Suzlon) against an Indian defendant, Rajagopalan Sridhar and put the Ninth Circuit Court's opinion on the reach of the ECPA to the test.

  • The plaintiff's legal counsel sought access to emails in the defendant's Hotmail account, stored on Microsoft servers located in the U.S.
  • The defendant did not provide consent for his emails to be used in discovery, nor did Microsoft consent to release the emails in question.
  • Microsoft's objection brought the case before the U.S. District Court for the Western District of Washington and later before the Ninth Circuit Court of Appeals, both of which agreed that the emails were protected by the ECPA.
  • Despite the plaintiff's and defendant's Indian nationality, and the fact that the suit in question was Australian, the U.S. court ruled in a manner that creates a powerful precedent for future lawsuits related to electronic communication providers whose servers are located in the U.S. As a result of this case, it has become clear that any users with accounts in U.S.-held cloud services will be subject to the same protections under the ECPA as a U.S. citizen.

So, what do you think? Does this ruling offer fair and sensible protect to U.S.-based companies and the users of their cloud services, or does it unnecessarily complicate the field of international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases
 

A recent article in Texas Lawyer discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. As noted at the 2011 Eastern District of Texas Bench Bar Conference in Irving last week, the "Model Order on E-Discovery in Patent Cases" was unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in patent cases.

What's Wrong with eDiscovery Now?

In his speech at the 2011 Eastern District of Texas Bench Bar Conference, "Thoughts on the Status and Direction of Patent Litigation in the United States," Judge Rader accuses the courts of becoming “intolerantly expensive”, forcing “accused infringers to acquiesce to non-meritorious claims” therefore imposing “an unhealthy tax on innovation and open competition”.  He compared the model order to the current Federal Rule of Civil Procedure 30, which limits cases to 10 depositions of 7 hours or fewer.

Rader said "the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses." Hence, the proposed model order to save the participants in these cases time and money.

Model Order Proposes Limits on eDiscovery

Rader's model order would create several limits on the production of electronically stored information in patent cases, including:

  • Exclusion of metadata from eDiscovery production requests without "good cause";
  • Restrictions on email production requests to specific issues and “not general discovery of a product or business”;
  • Delaying of email production requests until after disclosures about the patents, the accused uses of the invention, relevant financial information and the prior art;
  • A maximum of five custodians per party in email requests, and only five search terms each, unless courts specifically allow in excess of that number (if litigants submit requests that exceed those court orders, they must pay for the extra production);
  • Receiving parties cannot use materials asserted by producing parties as attorney-client or work product privileged;
  • Prohibitions on the use of privileged information produced as part of a mass production or other inadvertent release.

For more information about this model order and its implications, see Model Order Would Limit E-Discovery in Patent Cases.

So, what do you think?  Will the model order “catch on” as a way to limit the eDiscovery possible in patent cases?  Will other jurisdictions adopt the model order? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime

A New York district court recently ordered the United States Government to reproduce thousands of pages of electronic discovery materials in a criminal case involving the distribution of cocaine.

In United States v. Briggs, No. 10CR184S, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011), the Government produced thousands of pages of electronic documents and a number of audio recordings, none of which were text searchable. The court ultimately decided that the onus of producing searchable materials for eDiscovery fell on the Government itself.

  • Defendants requested that the Government reproduce the discovery materials in a searchable format, but the Government refused, stating that it had used a program “routinely used” in criminal cases and would not bear the storage burden or cost of reproducing the documents.
  • The defense argued that the volume of production was virtually impossible to navigate without the ability to sort or search the documents, and that the materials presented for discovery lacked some relevant information. The court later made the comparison that a paper equivalent to this discovery situation “would be if the Government took photographs of thousands of pages… put them in boxes, and invited inspection by defense counsel.”
  • In light of the absence of a rule or standard for discovery of electronic materials in criminal cases such as this one, the court referred to other criminal cases in which the same issues were discussed, including United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) and United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). Both of these cases dealt at some point with similar debates over document format and extensive discovery production, with different findings of whether the producing party was required to produce in the requested format.
  • The court decided that, in light of the absence of a clear standard, the Government was the party “better able to bear the burden of organizing these records for over twenty defendants in a manner useful to all” and ordered the Government to produce the files in searchable PDF or native format.
  • Finally, the court expressed its hope that the Advisory Committee on Criminal Rules would soon establish rules addressing the production of ESI in criminal cases.

So, what do you think? Was the court fair to put the onus of searchable text production on the Government? Should there be similar rules governing eDiscovery issues in the Federal Rules of Criminal Procedure as there are in the Federal Rules of Civil Procedure? Please share any comments you might have or if you’d like to know more about a particular topic.