Production

Discovery “Cautionary Tale” Leads to Recommendations of Default Judgment Against Defendants: eDiscovery Case Law

In Abbott Laboratories, et al. v. Adelphia Supply USA, et al., No. 15 CV 5826 (CBA) (LB) (E.D.N.Y. May 2, 2019), New York Magistrate Judge Lois Bloom, noting that the plaintiff’s motion for case ending sanctions against H&H Wholesale Services, Inc., its principal, Howard Goldman, and its marketing manager and Mr. Goldman’s wife, Lori Goldman (“H&H Defendants”) for wide-scale discovery misconduct “presents a cautionary tale about how not to conduct discovery in federal court” recommended that the plaintiffs’ motion be granted, and that the Court should enter a default judgment against the H&H Defendants.

This case (covered here by Law360, subscription required; report and recommendation linked here) involves trademark and trade dress infringement, unfair competition, trademark dilution and other claims associated with the illegal sale of Abbott’s FreeStyle blood glucose test strips in the US.  Judge Bloom began the report and recommendations document with this statement:

“This motion presents a cautionary tale about how not to conduct discovery in federal court.”

Among the discovery issues according to Judge Bloom (and plaintiff allegations):

  • The documents the H&H defendants originally produced were printed “in hard copy, scanning them all together, and producing them as a single, 1941-page PDF file”;
  • H&H used search terms it knew wouldn’t turn up results (“such as ‘International’ and ‘FreeStyle,’ whereas H&H’s internal systems used item numbers and other abbreviations such as ‘INT’ and ‘INTE’ for International and ‘FRL’ and ‘FSL’ for FreeStyle”) and specifically removed other damning documents – particularly those involving Howard Goldman and Lori Goldman – and provided numerous false excuses for these omissions;
  • The testimony from H&H’s general manager regarding the discovery woes was “clearly inconsistent if not perjured from his deposition” opposing the sanctions motion, Howard Goldman’s testimony was “evasive and self-serving at best” and H&H’s corporate representative’s testimony was “clearly perjured”;
  • “H&H would have gotten away” with its fraud if not for Abbott being allowed to seize H&H’s computers as part of a related counterfeiting case, which allowed previously withheld documents to come to light.

“H&H only complied with the court’s orders and their discovery obligations when their backs were against the wall,” Judge Bloom wrote. “Their email server had been seized. There was no longer an escape from responsibility for their bad faith conduct … But for being caught in a web of irrefutable evidence, H&H would have profited from their misconduct.”

She added that the lies were part of a “calculated pattern of pervasive misconduct that started early on and continued even after defendants were caught red handed,” meaning the case must be ended with a victory handed to Abbott.

H&H had previously been sanctioned for its discovery misconduct, with Judge Bloom in 2018 blocking the supplier from raising attorney-client or work-product privilege defenses for a certain set of discovery production.

Even other companies that Abbott had also sued had gone after H&H and Kerr Russell for letting Goldman listen to remote depositions of other parties, in violation of a protective order.

In recommending that the plaintiffs’ motion for sanctions be granted and a default judgment being issued against the H&H defendants, Judge Bloom stated:

“The Court finds that the H&H defendants have committed a fraud upon the court, and that the harshest sanction is warranted. Therefore, plaintiffs’ motion for sanctions should be granted and a default judgment should be entered against H&H Wholesale Services, Inc., Howard Goldman, and Lori Goldman.”

So, what do you think?  Do you agree with the harsh sanction recommendations?  Please let us know if 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 Orders Plaintiff to Share in Discovery Costs of Non-Party: eDiscovery Case Law

In Lotus Indus., LLC v. Archer, No. 2:17-cv-13482 (E.D. Mich. May 24, 2019), Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Case Background

In this civil RICO and First Amendment retaliation case associated with redevelopment of property in Detroit, the Plaintiff filed a motion to compel production of documents requested in his September 2018 subpoena to nonparty DDA in January 2019.  A hearing was held on the plaintiff’s motion on March 26, 2019, after which the Court entered an order granting in part and denying in part Plaintiff’s motion, ordering DDA to produce, by April 26, 2019, documents responsive to Request Nos. 4-6 of Plaintiff’s subpoena for the November 19, 2016 to present time period, and to produce a privilege log for any documents withheld on the basis of privilege.

On April 19, 2019, DDA filed the instant motion for protective order, seeking an extension of time to produce responsive documents and requesting that the plaintiff pay DDA its share of the expenses of production before being obligated to begin to comply with the Court’s order, contending that the volume of potentially responsive documents was substantially larger than anticipated (48.5 GB of data) and would impose a significant expense on DDA to produce and require far more time to complete than allowed by the Court’s order.  DDA initially anticipated the total expense of production at $127,653.00, which included $21,875.00 in costs to upload the data and approximately $105,778.00 in attorney’s fees in connection with a privilege review. DDA requested Plaintiff pay the $21,875 in costs and 25% of the anticipated attorney’s fees ($26,444.50); in response, the plaintiff opposed that motion and questioned why the costs were so high.

At the May 8, 2019 hearing on the motion, the parties agreed on new search terms to further refine the number of responsive documents and the Court scheduled a status conference for May 23, 2019 to discuss the results of that search. On May 22, 2019, DDA submitted a supplemental brief explaining that the revised search yielded 8.5 GB of data that must be reviewed for privilege, at a cost of $2,125.00 to upload the data to counsel’s eDiscovery platform and anticipated costs of $44,705.00 in attorneys’ fees to conduct a privilege review, so it sought an order for the plaintiff to pay DDA $2,125.00 in costs and $11,176.25 in attorneys’ fees (still 25% of the total attorneys’ fees anticipated).

Judge’s Ruling

Judge Patti found that “DDA has sufficiently established that it will be forced to incur $2,125.00 in fixed costs to upload the 8.5 GB of data to its third-party e-discovery platform in order to review it for production, and that it anticipates incurring $44,705 in attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production.”

He also noted that “DDA has demonstrated that it has no interest in the outcome of this litigation, as it is not a party and Plaintiff’s prior case against it was dismissed as a sanction for Plaintiff’s ‘repeated misrepresentations’ and ‘failures to comply with discovery orders — despite warnings and the imposition of less severe sanctions…While DDA may more readily bear the expense of production than Plaintiff, that factor alone does not dictate that Plaintiff is relieved of the obligation to pay for some of the expense of production, particularly where this litigation has no particularized public importance and considering the ‘unusual circumstances’ in this case, including that Plaintiff’s prior lawsuit against the DDA was dismissed as a sanction, and he and his clients have been at the receiving end of multiple sanction awards in related and unrelated litigation, significant portions of which this particular plaintiff and his counsel have apparently failed to pay…In addition, the subpoena was directed in part at the general counsel for DDA, and Plaintiff should have anticipated that production of documents in response would require a robust privilege review prior to production, especially given the litigation history between Plaintiff and the DDA.”

As a result, DDA’s motion was granted in part and denied in part without prejudice and Judge Patti ordered that:

  1. “Plaintiff must pay to DDA the sum of $4,360.25, which constitutes the $2,125.00 in costs to upload the 8.5 GB of data to DDA’s counsel’s e-discovery platform, and $2,235.25 in attorneys’ fees (5% of the anticipated attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production).
  2. Plaintiff must deliver the $4,360.25 check payable to City of Detroit Downtown Development Authority (although the check can be delivered to counsel for DDA) on or before 5:00 p.m. Monday, June 3, 2019. Plaintiff shall also promptly certify such payment to the Court, and include a copy of the check.
  3. DDA need not continue further efforts to produce documents until it is paid in full. Once paid, DDA shall have 45 days from that date to produce responsive documents, and a privilege log for any documents withheld on the basis of privilege.”

So, what do you think?  Do you agree with the distribution of costs?  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.

No Bates, No Problem for Native Files: eDiscovery Throwback Thursdays

If you read my blog post on Tuesday, you saw my coverage of Craig Ball’s blog post regarding whether we’ve “lost the war” on eDiscovery.  Craig particularly lamented the lack of focus on practical eDiscovery skills, especially in the eDiscovery conferences we attend, where they have moved on to “anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  Certainly, that sentiment probably extends to publications as well, as we have covered a lot of those “anti-discovery” topics extensively.  But we used to cover a lot more of the practical eDiscovery best practices in the early years of the blog.  And, that got me thinking that maybe we should revisit some of those topics.

So, I’m starting a new series – Throwback Thursdays – here on the blog, where we will do just that – revisit 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.  That’s not a new idea: Craig did that on his blog in the past and we have re-played some of our own best practice posts (with some updates) when the topic came up again in our dealing with our clients.  We even had a previous “Throwback Thursday” series on this blog that my former colleague Jane Gennarelli wrote about the early days of technology in litigation support.  Nonetheless, we will start running this series on Thursdays (most of them, anyway) for a while as many of these topics were covered by this blog when we had a lot less readers than we do now.  It’s new if you haven’t heard it, right?  :o)

Our first Throwback Thursday post is one we published back in March 2011 – when the eDiscovery Daily blog was less than six months old.  It’s one that made me laugh when I read it – not because the advice is any less sound, but because I stated that is has become “commonplace” for parties to agree (and courts to accept) a file-level ‘Bates’ or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number.

Well, I might have overstated that a bit!

Especially when you consider this case from less than a year ago where a Kansas Magistrate Judge stated that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly”.  It seems like many attorneys and some courts still have to learn that you can produce in native format and still support the idea of presenting in image format.

So, it was probably accurate when I stated that “it seems to ‘upset the legal apple cart’ when attorneys have to contemplate applying Bates numbers to native files.”  No kidding!  As I noted back then, “many native file types are not stored in a typical paginated, document-oriented format, [so] it is difficult to impossible to determine the number of pages for each file.  Because attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily.  That would be like printing out every email in your Inbox before reading them.”

Back then, I talked about accepting a file-level Bates number where each file is named with a prefix and a sequential number (just like a Bates number, only they’re not stamped in the file, but used as the file name).  These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.  I also noted that “[i]f there’s a concern about referencing individual page numbers at deposition or trial, any files used as exhibits can still be converted to image (or printed) and a number applied.  You could simply use the UPI as the prefix, followed by a sequential number, so page 3 of the 11th file in the production could be stamped like this: PROD000011-00003.  This enables you to uniquely identify each native file, and still correlate the native file with pages when printed.”

Makes sense, right?  If so, why are we still debating this over eight years later?  Regardless, here’s the post we originally published back in March 2011.

So, what do you think?  Are your productions routinely in native format?   If not, why not?  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.

Today’s Webcast Will Help You Learn How to Keep Production from Becoming Such a Big Production: eDiscovery Webcasts

Does it seem like eDiscovery production always turns into a big production? It doesn’t have to do so. There are a number of steps you can take to minimize the stress, cost and rework associated with producing electronically stored information to opposing counsel as well as to ensure that their production to you is as useful as possible.  Today’s webcast will help you learn the steps and concepts to keep your productions from turning into a big production.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Keeping Production from Becoming a Big Production. In this one-hour webcast that’s CLE-approved in selected states, we will discuss some of the most common steps you can take during the discovery life cycle to keep your eDiscovery production on track. Topics include:

  • When to Start Thinking About the Production
  • Proactively Addressing Inadvertent Privilege Productions
  • Up Front Planning to Reduce Your Production Burden
  • Avoiding Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Eliminating Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Avoiding the Redaction “Epic Fail”
  • Understanding Load Files and Common Issues with Them
  • Ensuring a Smooth and Accurate Production Set

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose white paper regarding production challenges and how to address them was published last month on the blog.  To register for it, click here.  It’s not too late!  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn about how to make your production become less of a major production, this webcast is for you!

So, what do you think?  Do you find your productions always turn into a big production?  If so, please join us!  If not, please join us anyway!  And, as always, 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.

Court Establishes Search Protocol to Address Plaintiff’s Motion to Compel: eDiscovery Case Law

In Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. Apr. 26, 2019), Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Case Background

This case regarded the defendant’s alleged breach of a retirement agreement with the plaintiff due to plans by an investment firm to install the plaintiff as CEO of an aircraft component manufacturer (“Arconic”) where the defendant withheld the plaintiff’s retirement benefits because the defendant claimed that he violated the non-compete provision in his retirement agreement.

In discovery, the plaintiff filed a motion to compel, seeking “the court’s intervention regarding discovery related to the “Business” of Spirit and Arconic. Specifically, Mr. Lawson asks the court to compel Spirit to produce (1) its contracts with Boeing and Airbus; (2) its antitrust filings relating to its planned acquisition of Asco Industries; (3) documents related to the aspects of Spirit’s business that Spirit alleges overlap with Arconic’s business; and (4) documents related to Spirit’s relationship with Arconic.”  At a subsequent hearing, the plaintiff clarified that he was not seeking to compel the full scope of documents sought in the original Requests for Production, but rather only the smaller subset of documents that were the subject of his motion to compel.

Judge’s Ruling

With regard to the Boeing and Airbus Contracts, Judge Mitchell granted the plaintiff’s motion “with respect to the portions of these contracts (or amendments, addenda, exhibits, schedules, data compilations, or lists) that relate to Spirit’s deliverables to Boeing and Airbus.”  And, with regard to Antitrust Filings, Judge Mitchell granted the plaintiff’s motion “with respect to the portion of these filings relating to Spirit’s business and market/marketing positioning, including the index(es) for these filings, the “4(c) documents,” and related white papers.”  He ordered the defendant to produce documents related to both categories “on or before May 7, 2019.”

With regard to Product Overlaps and Spirit’s Relationship with Arconic, Judge Mitchell granted these aspects of the motion in part and denied them in part, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”  That protocol was as follows:

“After consultation with the parties, the court orders the parties to comply with the following ESI search protocol:

  • By May 3, 2019, Mr. Lawson shall identify up to seven categories of documents for which it seeks ESI.
  • By May 20, 2019, for each category of documents, Spirit shall serve a list of the top three custodians most likely to have relevant ESI, from the most likely to the least likely, along with a brief explanation as to why Spirit believes each custodian will have relevant information.
  • By May 23, 2019, Mr. Lawson shall serve a list of five custodians and proposed search terms for each custodian.

 *3 • Spirit shall search the identified custodians’ ESI using these proposed search terms. Spirit shall use sampling techniques to assess whether the search has produced an unreasonably large number of non-responsive or irrelevant results and, if so, Spirit shall suggest modified search terms (e.g., different keywords, negative search restrictions, etc.) by May 30, 2019.

  • The parties shall meet and confer about search terms and try to achieve an estimated responsive hit rate of at least 85%.
  • Spirit shall produce responsive documents from the first five custodians on or before June 21, 2019.
  • Meanwhile, the parties shall begin this same process for the next five custodians. By May 30, 2019, Mr. Lawson will produce to Spirit a list of the next five custodians and proposed search terms for each custodian. If Spirit finds that the estimated responsive hit rate is not at or above 85%, Mr. Lawson shall suggest modified search terms by June 6, 2019. The court will set a deadline for Spirit to produce documents from the second set of five custodians at a later time.

If Mr. Lawson wishes to seek ESI from additional custodians beyond the ten described in this protocol, the parties are directed to contact the court for further guidance.”

Judge Mitchell also denied the plaintiff’s request to order the defendant to pay his attorneys’ fees and costs associated with the motion to compel.

So, what do you think?  Do you think the ordered responsive hit rate of 85% is reasonable?  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.

Here’s a Webcast to Learn How to Keep Production from Becoming Such a Big Production: eDiscovery Webcasts

Does it seem like eDiscovery production always seems to be such a big production? It doesn’t have to be. There are a number of steps you can take to minimize the stress, cost and rework associated with producing electronically stored information to opposing counsel as well as to ensure that their production to you is as useful as possible.  Here’s a webcast that will help you learn the steps and concepts to keep your productions from turning into a big production.

Wednesday, May 29th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Keeping Production from Becoming a Big Production. In this one-hour webcast that’s CLE-approved in selected states, we will discuss some of the most common steps you can take during the discovery life cycle to keep your eDiscovery production on track. Topics include:

  • When to Start Thinking About the Production
  • Proactively Addressing Inadvertent Privilege Productions
  • Up Front Planning to Reduce Your Production Burden
  • Avoiding Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Eliminating Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Avoiding the Redaction “Epic Fail”
  • Understanding Load Files and Common Issues with Them
  • Ensuring a Smooth and Accurate Production Set

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose white paper regarding production challenges and how to address them was published last month on the blog.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn about blockchain and how it can affect your job as a legal professional, this webcast is for you!

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you find your productions always turn into a big production?  If so, please join us!  If not, please join us anyway!  And, as always, 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.

Court Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: eDiscovery Case Law

In Siemers v. BNSF Railway Co., No. 8:17-cv-360 (D. Neb. Apr. 8, 2019), Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Case Background

In this case regarding the plaintiff’s suit against his former employer for alleged violations of the Federal Employers Liability Act (“FELA”), the defendant requested production of the plaintiff’s cellular telephone records from November 1, 2016 (the day before the claimed injury incident that is the basis of Plaintiff’s lawsuit) to present. After the plaintiff refused to produce any records in response to the defendant’s request, a discovery dispute conference was held in October 2018, with the Court finding that the plaintiff’s communications with coworkers or others from the defendant and telephone records evidencing the same were relevant and discoverable, and ordered the parties to further confer regarding production of these items.

The plaintiff then issued a subpoena to his cellular telephone provider and received a listing of incoming and outgoing telephone calls and text messages, but not the substance of any communications. Nonetheless, the plaintiff refused to produce to the defendant the telephone records produced to him in response to his subpoena.

In the final pretrial conference, the defendant argued that the records were discoverable because whether and how often plaintiff has communicated with BNSF coworkers or management since his alleged injury could have credibility considerations, that identifying the fact that a communication occurred between the plaintiff and his attorney was not privileged or, alternatively, that it was not unduly burdensome to redact those references and that no privacy interest was implicated in the telephone records because the records do not contain the substance of any communications.  The plaintiff argued that the defendant’s request was “overbroad on its face and therefore not reasonably calculated to lead to the discovery of relevant information” and also contended that the discovery sought by the defendant was “unreasonably cumulative or duplicative and could have been obtained from other sources that is more convenient, less burdensome, or less expensive.”

Judge’s Ruling

Considering the respective arguments, Judge Bazis ruled as follows:

  1. “Plaintiff’s telephone records from November 1, 2016 to present and any other records received by Plaintiff in response to his subpoena to his cellular telephone provider are discoverable pursuant to Fed. R. Civ. P. 26. BNSF is entitled to discover whether and how often Plaintiff has communicated with coworkers or BNSF management since his alleged injury.
  2. The fact that Plaintiff’s counsel’s telephone number may appear in the records does not render them subject to a privilege claim. Plaintiff may redact references to communications between Plaintiff and Plaintiff’s counsel, which the Court finds is not overly burdensome.
  3. Privacy considerations of Plaintiff or third parties not involved in this litigation are minimal to non-existent since the at-issue records do not contain the substance of communications.”

As a result, Judge Bazis ordered (in all caps, no less) the plaintiff “to produce to BNSF all records received in response to Plaintiff’s subpoena to his cellular telephone carrier” within one week of the order, noting that he could “redact references to communications between Plaintiff’s counsel and Plaintiff (but is not required to do so to maintain privilege claims regarding the substance of the communications).”

So, what do you think?  Was that appropriate or was the defendant’s request overbroad?  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.

Craig Ball’s Wayback Machine and Look at the Mueller Report: eDiscovery Best Practices

Some weeks there is so much to cover in eDiscovery that it’s difficult to get to everything.  This is one of those weeks.  Like me, several of you are fans of Rob Robinson’s quarterly eDiscovery Business Confidence Survey on his Complex Discovery blog and he has just published the results of his Spring 2019 Survey, which are very interesting and I will (hopefully) post my normal analysis on that tomorrow.  But, Craig Ball has posted – not just one, but two – interesting posts on his Ball in Your Court blog this week that definitely need to be covered as well.  “Ball” comes before “Robinson” alphabetically, so I’ll cover his posts first.  ;o)

In Craig’s post Storage Media: Long Past Herman Hollerith, he gives a terrific history lesson on storage media – all the way back to the old punch card storage and tabulation technologies Herman Hollerith used to revolutionize the 1890 U.S. census.  That same punch card technology was adopted by used for close to, if not more than, 100 years.  My first computer programming course (does anybody remember Fortran?) at Baylor in the early 1980s was on an IBM System 3 (link to a picture of that system here) with the old punch card technology that we used to “write” our programs on.  Each card was a single line of code and you had to keep the cards in order for the program to run correctly – you’ll never see a more devastated look on a person than when they drop their punch card deck of several hundred cards and realize there is no way to put them back in order (thankfully, that wasn’t me).

Craig jumped from punch cards to 3.5-inch floppy disks commonly used from the mid-1980s to early 2000s which held 1.44MB (about 13,653 IBM cards worth of data).  In comparison to today’s world, as Tom O’Connor and I discussed in yesterday’s webcast, by next year, about 1.7MB of new information will be created every second for every human being on the planet.

In between were 8-inch and 5 1/4-inch floppy disks (which were truly “floppy”) that held a lot less storage (I know because I used both).  As Craig notes, you can now get a 1-terabyte drive for about $50, which is the equivalent of about ten billion IBM cards.  And, a 30-TB LTO-8 backup tape cartridge is approximately the equivalent of 305 billion IBM cards.  Yikes!

Oh, and by the way, the Georgetown Law Center eDiscovery Training Academy is coming up in less than a month!  More to come on that in an upcoming post.

In Craig’s post, Mueller? Mueller? More E-Discovery Lessons from Bill and Bob (get the 80’s movie reference, there?), he uses the Robert Mueller report just released to compare the common practice of “fixing” the content of a document by printing the file to a static image format like TIFF or PDF to “the way we speak of ‘fixing’ a cat; that is, cutting its balls off.”  Ouch!  And, Craig notes that he’s written about this extensively elsewhere (including his excellent Lawyers’ Guide to Forms of Production).  But, the best part of his post (other than the humor, of course – I won’t steal his thunder here), is his discussion of native redaction and the move a dozen years ago by Microsoft to Open XML (Extensible Markup Language) for Office files (which is why Office file extensions have an “X” at the end – e.g., DOCX, XLSX, etc.).  And, you get to find out where the “PK” in PKZIP came from!  Excellent stuff!

So, why don’t we redact natively instead of sticking to “dumbing down” file formats to TIFF, then OCRing them, then redacting them?  As Craig asks, “Mueller, Mueller?”

By the way, speaking of the Mueller report, our friends at Complete Legal have made it available in a CloudNine Review database.  Can’t believe I haven’t mentioned THAT before now!  You can email them at info@completelegalkc.com to request access to the report and really search and examine it in detail.  Even if the report does represent a cat with no balls.  ;o)

So, what do you think?  Have you ever redacted documents natively?  As always, 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.

Why Does Production Have to be Such a Big Production?, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was last Monday, part two was last Wednesday and part three was last Friday, here’s the fourth and final part.

Recommendations for Minimizing Production Mistakes

Shawn Huston says,

The most beneficial step that any attorney can take is to talk through the production protocol and specifications prior to even collecting any data. Discuss the pros and cons of the proposed production format and what processing steps will be required to meet the protocol.

This should also include the cost of performing the tasks so there are no surprises to the client’s budget. The benefit to having the discussion prior to the time the production is due is that there may be steps that are necessary early on in the process to adequately provide the requested format, or ways to reduce cost.

Finally, the time it takes to set-up, convert to the appropriate format and export the final deliverable is vastly underestimated. The timing should be discussed with your litigation support team, whether in-house or at a service provider, so realistic expectations can be set and proper time set aside for quality control steps.

I like to start by asking did your production problem begin at the processing stage, which makes it a machine generated issue or did it happen post-processing, which is more often a human failing.

Virtually every tech expert I spoke with said redaction should be done by a tool that allows users to burn a permanent black box into an image or text.  Unless you’re redacting paper, then they recommend a good pair of scissors.

My last tip? Get documents produced in native format and forget all about load files.

No, wait, one last tip.  Get a Rule 502(d) Order. It protects against careless or otherwise inadvertent disclosure. As Judge Peck (I know, he’s off the bench now but he’ll always be a judge to me… it’s a New England upbringing thing) once said “in my mind, there is no downside to having such an order” and it may even be malpractice not to get one.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, 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.

Why Does Production Have to be Such a Big Production?, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was Monday and part two was Wednesday, here’s the third part.

Load File Failures

Problems with productions have plagued us for years and none are more prevalent than load file errors. I recall a consultant in Seattle nearly 20 years ago who spent 2/3 of his times cleaning up Summation load files for clients. And the problems haven’t decreased as technology has improved.

Shawn Huston of LSP Data Solutions ( www.lspdata.com) recently told me that 2/3 of the load files he sees in productions have errors. Why? Remember my previous comment about communication? Shawn says that:

One of the biggest issues I see is parties agreeing to production specifications without understanding what they are agreeing to. A classic example is the more technologically sophisticated party requesting tiff, text and load files as a production format and the other party agreeing without realizing what that means and the process necessary to do it correctly.

We also frequently see productions that don’t have the corresponding metadata fields to aid in filtering and searching the production sets, but then counsel becomes frustrated when they can’t accurately search for dates, recipients, file names or other useful metadata fields.

So, what seems to be the problem?  Well once again let’s turn to eDiscovery Grand Master Craig Ball for an explanation. In his wonderful 2013 article, A Load File Off My Mind, which is as relevant today as it was then, Craig explains that:

More commonly, load files adhere to formats compatible with the Concordance and Summation review tools.  Concordance load files typically use the file extension DAT and the þ¶þ characters as delimiters, e.g.:

Concordance Load File

Just as placing data in the wrong row or column of a table renders the table unreliable and potentially unusable, errors in load files render the load file unreliable, and any database it populates is potentially unusable.  Just a single absent, misplaced or malformed delimiter can result in numerous data fields being incorrectly populated.  Load files have always been an irritant and a hazard; but, the upside was they supplied a measure of searchability to unsearchable paper documents.

What are some common load file errors?

Mismatched line numbers: Each line in a load file corresponds to a single document. Thus, the number of lines in a load file must match the number of documents being imported. If they do not match, a common cause is an extra line break in the load file.

Field Formatting Errors:  Mismatched date formats (1/1/19 vs Jan 1 2019) and field length, that is a field in the database structure is only 6 characters long but the data being loaded is longer than that

Delimiter errors:  Comma and semi-colon are commonly used delimiters but if a comma appears in some text being loaded …say “Apple, Inc”, it may be interpreted as a delimiter in the wrong place.  Pipes ( a vertical line) are an excellent example of a once common delimiter which can be read as another instruction by some SQL and .Net databases.

Encoding: Some programs prefer a certain background computer language. Many older databases for example preferred Unicode Standard (UTF-1, UTF-7, UTF-8, UTF-EBCDIC, UTF-16, UTF-32) or ASCII. Importing data from a database that is not consistent with the database you are using may lead to problems.

Other load file problems that may occur include:

  • Overlaps with document or Bates numbers: Documents that come from different sources in a case may have Bates numbers that are repetitive or have some portion of their sequence that overlap with each other.
  • Page number difference: The number of pages in the load file may differ from the actual page count of the document images themselves, typically because of single page vs multi page image discrepancies.
  • Uploader at incorrect stage: An error message that the loading process is not working smoothly, usually when the screen display shows that you are on one step of the upload, but the uploader recognizes it’s actually on the next stage.
  • Timeouts on reading data error: The upload has stopped, either because of an internal issue or an interruption in internet connection.
  • Encountered non-separator: Typically a typo in the load file and the load has stopped.
  • Multiple native files: Multiple files with the same name as a document present in the native path, often a native file and an image file with the same name.
  • Conflicts with a previous loaded image: The load file is pointing to multiple images for the same document page and the conflict must be resolved.
  • Error with image reader: Usually means that the uploader could not read the image file.
  • Error finding load file or directory: Most often occurs when the user is trying to upload from a network but the upload tool is either defaulting to a local drive or the user doesn’t have rights to the network.

We’ll publish Part 4 – Recommendations for Minimizing Production Mistakes – next Monday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, 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.