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Proportionality

Cost Calculator for Document Review – eDiscovery Best Practices

A couple of weeks ago, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site and, two days later, began a review of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm.  Today, we will continue our review of the calculators with a look at the Doc Review Cost Calculator.

As described on the site, this budget calculator focuses on review, which is universally considered to be the most expensive phase of the eDiscovery process (by far). From assumptions entered by users, it calculates per-document and per-hour (a) low and high price estimates, (b) low and high costs on a per page basis, and (c) low and high costs on a per document basis.

To use it, enter assumptions in the white and yellow cells in columns B, C, and D. Calculations are shown in columns D through T.

Assumptions that you can provide include: pages per document, low and high page counts in the collection, low and high time to complete the review project (in weeks) and reviewer hours per week, proposed rates for review (hourly and per document), low and high pages per hour rates for review (from which documents per hour rates are computed), proposed rates for review management (hourly and per document) and percentage of the collection to QC.

From the entered assumptions, the model will provide calculations to illustrate the low and high cost estimates for the low and high page count estimates, for both a per-document and a per-hour review billing structure.  It will also estimate a range of the number of reviewers needed to complete the project within the time frames specified, to help you plan on staffing necessary to meet proposed deadlines.  The detailed calculations are stored in a hidden sheet called “Calculations” – you can unhide it if you want to see how the review calculation “sausage” is made.

This model uses an “old school” assessment of a document collection based on page counts, so to use it with native file collections (where page counts aren’t known), you have to set the pages per document to 1 – your review rate then becomes documents (files) per hour.

Suggestions for improvement:

  • Some of the enterable assumption cells are in yellow and some in white (the same color as the computed cells), it would be easier and clearer to identify the assumptions fields if they were all yellow to differentiate them from the computed cells;
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a line or bar graph to the numbers to represent the differences graphically;
  • Provide some notes to explain some of the cells (especially the assumption cells) in more detail.

Nonetheless, this workbook would certainly be useful for estimating review costs and number of reviewers needed to complete a large scale review, not only at the start, but also to provide updated estimates as review commences, so you can adjust cost estimates and staffing needs as you go.  You can download this calculator individually or a zip file containing all four calculators here.  In a few days, we will continue our review of the current EDRM budget calculators in more detail with the ESI Cost Budget calculator from Browning Marean of DLA Piper law firm.

So, what do you think?  How do you estimate eDiscovery costs?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Vorys Project Ballpark Cost Estimator for ESI Processing and Review – eDiscovery Best Practices

On Tuesday, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  Today, we will begin a more in-depth discussion of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm.

As described on the site, this budget calculator contains two worksheets. The Linear-search-analytics worksheet allows users to calculate ballpark cost estimates for processing and review under three “cases” and compare the results. The cases are:

  • Case 1: Full blown processing and linear review
  • Case 2: Search terms used to cull data during processing
  • Case 3: Use analytical culling tool

With each case, users are able to see the cost consequences that result from changing variables such as Data Volume, Volume after culling, and Pre-processing cost/GB.  The cost differences are shown numerically, as well as via two graphs, a 3D horizontal bar graph that shows the cost differences between the three cases (see above graphic for an example) and a 2D horizontal bar graph that shows the cost differences, with a breakdown of processing and review costs for each.

The Linear-size examples worksheet allows users to compare four versions of Case 1. Users are able to see the cost consequences (in both numeric and 2D vertical bar graph form) that result from changing any combination of six variables: Data Volume, Processing Cost/GB, Pages per GB, Docs Reviewed by Hour, Hourly Rate, and FTEs.

Both spreadsheets provide useful information and are well controlled to differentiate the data entry cells (with no fill color in the cell) from the calculation only cells (with a fill color) and the sheets are protected to prohibit accidental overwriting of the calculated cells (the sheets aren’t locked with a password, so you can override it if you want to make adjustments).  The sheet is designed to help you generate a ballpark cost for processing and review based on the variables provided, so it doesn’t include any fixed overhead costs such as software, hardware or facility costs.  It also doesn’t include any management overhead, so it’s essentially a model for variable costs only, but it could be useful to help you determine at what volume an analytical culling tool might pay for itself.

Suggestions for improvement:

  • Create a common section for data entry variables so you don’t have to re-enter them for each comparison case to save time and avoid data inconsistencies;
  • While you’re at it, add variables for pages per document and hours per week – right now, you have to unprotect the sheet and change the formulas if you want to change those variables (not all document sets or work weeks are the same);
  • Add sheets to compare versions of Case 2 and Case 3, like the sheet for Case 1.

Nonetheless, this workbook is quite useful if you want to obtain a ballpark estimate and comparison for processing and review and compare costs for alternatives.  You can download this calculator individually or a zip file containing all four calculators here.  After the first of the year, we will continue our review of the current EDRM budget calculators in more detail.

So, what do you think?  How do you estimate eDiscovery costs?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Want to Estimate your eDiscovery Budget? Use One of These Calculators – eDiscovery Best Practices

It has been a busy year for the Electronic Discovery Reference Model (EDRM).  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  Now, another resource is available via the EDRM site – Budget Calculators!

It can be difficult to estimate the total costs for eDiscovery at the outset of a case.  There are a number of variables and options that could impact the budget by a wide margin and it may be difficult to compare costs for various options for processing and review.  However, thanks to the EDRM Metrics team and contributing members, budget calculator Excel workbooks are available to enable you to at least “ballpark” the costs.  The budget calculator spreadsheets are designed to help organizations estimate likely eDiscovery costs, based on assumptions that you provide, such as average hourly rates for contract reviewers or average number of pages per document.

There are four budget calculators that are currently available.  They are:

  • UF LAW E-Discovery Project Ballpark Cost Estimator for ESI Processing and Review: This budget calculator contains two worksheets. The first worksheet allows users to calculate ballpark cost estimates for processing and review under three “cases” (Full blown processing and linear review, Search terms used to cull data during processing and Use analytical culling tool) and compare the results.  The second worksheet allows users to compare four versions of Case 1.  This workbook has been provided by University of Florida Levin College of Law and Vorys law firm.
  • Doc Review Cost Calculator: This budget calculator focuses on review. From assumptions entered by users, it calculates per-document and per-hour (a) low and high price estimates, (b) low and high costs on a per page basis, and (c) low and high costs on a per document basis.
  • ESI Cost Budget: This budget calculator estimates costs by project phase. The phases are: ESI Collection, ESI Processing, Paper Collection and Processing, Document Review, Early Data Assessment, Phase 1 Review, Phase 2 Review, Production, Privilege Review, Review of Opposition’s Production and Hosting Costs.  This workbook has been provided by Browning Marean, DLA Piper law firm.
  • EDRM UTBMS eDiscovery Code Set Calculator: This budget calculator uses the UTBMS e-discovery codes as a starting point for calculating estimated e-discovery expenses. Users enter anticipated average hour rates for: Partners, Associates, Paralegals, Contract reviewers, In-house resources and Vendors, along with total estimated hours for each relevant group and total estimated associated disbursements for each relevant L600-series UTMBS code.  The spreadsheet then displays: a summary of the estimated costs, details of the estimated costs for each combination, totals by type of person and totals by individual and higher-level UTMBS codes.  This workbook has been provided by Browning Marean, DLA Piper law firm; and George Socha, Socha Consulting.

You can download each calculator individually or a zip file containing all four calculators.  If you have your own budget calculator, you can also submit yours to EDRM to share with others.  The calculators are available here.  On Thursday, we will begin reviewing the current budget calculators in more detail.

So, what do you think?  How do you estimate eDiscovery costs?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Cost-Shifting Inappropriate when Data is Kept in an Accessible Format – eDiscovery Case Law

In Novick v. AXA Network, LLC, No. 07 Civ. 7767 (AKH) (KNF) (S.D.N.Y. Sept. 24, 2013), New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

In September 2012, the court ordered the plaintiff to give the defendants a revised customer list and a list of 10 custodians whose e-mails it had to search over a 2.5 year period. Claiming the request was “excessive and burdensome,” the defendants filed a motion asking for an order requiring the plaintiff to reimburse more than $40,000 in attorney’s fees and costs. Roughly half of the fees went to an outside vendor that processed the searches, and the remainder constituted legal fees.

The defendants argued that cost-shifting was appropriate under Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). The defendants premised their argument on the fact that the search of 800 customers returned 80 gigabytes of data, but there were fewer than 400 pages of responsive documents, most of which duplicated prior discovery that the defendants had already produced. Instead, the plaintiff should have limited the search parameters and approached some of the customers to obtain the required information. In essence, the defendants argued that it was unfair “to require them ‘to continue funding unending discovery’” given the small amount at stake or to require it “‘to bear the cost of production to individual parties, if the individual parties are permitted to request every manner of production that occurs to them.’”

The plaintiff argued that cost-shifting was inappropriate because his search request was “extremely specific” and involved only 10 custodians. Moreover, the company’s outside vendor allegedly performed the search improperly. Finally, as a “‘multi-billion dollar company,’” the plaintiff argued that the defendants had a greater “ability to bear the cost.”

Here, Judge Fox found in favor of the plaintiff. Although parties are expected to bear the expense of complying with discovery requests, the court has discretion under Federal Rule of Civil Procedure 26(c) to shift the costs to protect a party from “undue burden or expense.” Under Zubulake, the court needed to determine “‘whether production of documents is unduly burdensome or expensive’” based on a consideration of “‘whether it is kept in an accessible or inaccessible format.’” Judge Fox found it was unnecessary to apply the eight-factor Zubulake cost-shifting test here because the e-mails in question were not in an inaccessible format.

So, what do you think?  Should the cost-shifting request have been granted?   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.

The Number of Pages in Each Gigabyte Can Vary Widely – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  With nearly 1,000 lifetime views, here is the fourth most viewed post all time, originally published in July 2012.  Enjoy!

_________________________

A while back, we talked about how the average number of pages in each gigabyte is approximately 50,000 to 75,000 pages and that each gigabyte effectively culled out can save $18,750 in review costs.  But, did you know just how widely the number of pages per gigabyte can vary?

The “how many pages” question comes up a lot and I’ve seen a variety of answers.  Michael Recker of Applied Discovery posted an article to their blog last week titled Just How Big Is a Gigabyte?, which provides some perspective based on the types of files contained within the gigabyte, as follows:

“For example, e-mail files typically average 100,099 pages per gigabyte, while Microsoft Word files typically average 64,782 pages per gigabyte. Text files, on average, consist of a whopping 677,963 pages per gigabyte. At the opposite end of the spectrum, the average gigabyte of images contains 15,477 pages; the average gigabyte of PowerPoint slides typically includes 17,552 pages.”

Of course, each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  So, estimating page counts with any degree of precision is somewhat difficult.

In fact, the same exact content ported into different applications can be a different size in each file, due to the overhead required by each application.  To illustrate this, I decided to conduct a little (admittedly unscientific) study using yesterday’s one page blog post about the Apple/Samsung litigation.  I decided to put the content from that page into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results:

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 10 KB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 36 KB, over 3.5 times larger than the text file;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel workbook – 128 KB, nearly 13 times larger than the text file;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word document – 162 KB, over 16 times larger than the text file;
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 211 KB, over 21 times larger than the text file;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 221 KB, over 22 times larger than the text file.

The Outlook example was probably the least representative of a typical email – most emails don’t have several embedded graphics in them (with the exception of signature logos) – and most are typically much shorter than yesterday’s blog post (which also included the side text on the page as I copied that too).  Still, the example hopefully illustrates that a “page”, even with the same exact content, will be different sizes in different applications.  As a result, to estimate the number of pages in a collection with any degree of accuracy, it’s not only important to understand the size of the data collection, but also the makeup of the collection as well.

So, what do you think?  Was this example useful or highly flawed?  Or both?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Another New Deliverable from EDRM – eDiscovery Trends

Do you know what container files are?  How about the L600 Code Series?  Do you know common methods for culling data?  What about the difference between a targeted and non-targeted collection strategy?

If you don’t know the answer to these and many other questions related to eDiscovery, you should check out the latest deliverable from the Electronic Discovery Reference Model (EDRM) Metrics team, the EDRM Metrics Glossary.

As noted in their press release announcement, the glossary contains definitions for 90 terms used in connection with the updated EDRM Metrics Model published in June 2013 (which was covered by the blog here).  The EDRM Metrics Model provides a framework for planning, preparation, execution and follow-up of eDiscovery matters and projects by depicting the relationship between the eDiscovery process and how information, activities and outcomes may be measured.

The new glossary was developed by the EDRM Metrics team, led by Kevin Clark and Dera Nevin with special assistance from team members Erin Corken, Eric Derk, Matthew Knouff, Carla Pagan, David Robertson, Bob Rohlf, Jim Taylor, Vicki Towne and Sonia Waiters.

The entire EDRM Metrics Glossary can be found here.

It has been a busy year for EDRM.  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  And, just a couple of weeks ago, EDRM published new Collection Standards for collecting electronically stored information (ESI).  And, there is still almost half a year to go before next year’s annual meeting.  Wow.

So, what do you think?  Will you use the new EDRM Metrics Glossary?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Judge Grimm Shows that Discovery Doesn’t Have to Be…Grim – eDiscovery Best Practices

On the day this blog debuted, we covered one of the most well-known cases related to discovery abuses (Victor Stanley, Inc. v. Creative Pipe, Inc.), where Maryland District Judge Paul W. Grimm included in his order a provision that the defendant actually be “imprisoned for a period not to exceed two years” if he didn’t pay the plaintiff the attorney’s fees and costs to be awarded.  Now, Judge Grimm provides a new Discovery Order that sets requirements for attorneys in his court to conduct discovery in a proportional manner.

In Ralph Losey’s e-Discovery Team® blog, he provides a two part discussion of Judge Grimm’s new discovery order (Judge Grimm’s New Discovery Order Is Now An e-Discovery Best Practice, Part One and Part Two).  The posts are well worth reading for several reasons, including to see how many ways the Electronic Discovery Best Practices (EDBP.com) model can be displayed (here’s our coverage of it when it was introduced last year).  As Ralph notes:

“First, it is important to note that Judge Grimm’s Discovery Order is an actual Order that he enters at the beginning of many cases. It is not a recommendation, guideline, or suggested protocol. The Maryland District Court’s Suggested Protocol for Discovery of Electronically Stored Information is a separate document that remains in effect. If you do not follow a Suggested Protocol, you may get a grim scowl and a tsk-tsk. If you do not follow an Order, you may go to jail. Just ask Victor Stanley.”

It was technically Mark Pappas of Creative Pipe who was threatened with imprisonment, but let’s not quibble… 😉

Anyway, as Ralph notes, the essence of the order is proportionality, with several phase one limits for proportionality (absent order of the Court upon a showing of good cause or stipulation by the parties), including:

  • RFPs are limited to 15 in number;
  • No more than 10 custodians can be searched;
  • ESI more than 5 years old is excluded;
  • Discovery is limited to reasonably accessible sources;
  • No more than 160 hours shall be expended for search and review services, including identifying potentially responsive ESI, collecting and searching that ESI (by any search method including properly validated keywords, Boolean searches and computer-assisted review), and reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.

Both the producing and receiving parties have responsibilities, as follows:

“The producing party must be able to demonstrate that the search was effectively designed and efficiently conducted…[and] must maintain detailed time records to demonstrate what was done and the time spent doing it, for review by an adversary and the Court, if requested… Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology.”

That isn’t just a set of guidelines, that’s an order!

A copy of Judge Grimm’s new Discovery Order can be found on a link in each of Ralph’s two posts above as well as on Ralph’s site here.

So, what do you think?  What do you think of the order?  Should orders like this be common in other courts?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Are You Scared Yet? – eDiscovery Horrors!

Today is Halloween.  Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors.  So, I have one question: Are you scared yet?

Did you know that there has been over 3.4 sextillion bytes created in the Digital Universe since the beginning of the year, and data in the world will grow nearly three times as much from 2012 to 2017?  How do you handle your own growing universe of data?

What about this?

The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466.

How about this?

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Or maybe this?

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform 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!!

Scary, huh?  If the possibility of exponential data growth, vendors holding data hostage and billable review rates of $466 per hour 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!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously 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!

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.

Plaintiffs’ Supreme Effort to Recuse Judge Peck in Da Silva Moore Denied – eDiscovery Case Law

As we discussed back in July, attorneys representing lead plaintiff Monique Da Silva Moore and five other employees filed a petition for a writ of certiorari with the US Supreme Court arguing that New York Magistrate Judge Andrew Peck, who approved an eDiscovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding.  Earlier this month, on October 7, that petition was denied by the Supreme Court.

Da Silva Moore and her co-plaintiffs had argued in the petition that the Second Circuit Court of Appeals was too deferential to Peck when denying the plaintiff’s petition to recuse him, asking the Supreme Court to order the Second Circuit to use the less deferential “de novo” standard.

The plaintiffs have now been denied in their recusal efforts in four courts.  Here is the link to the Supreme Court docket item, referencing denial of the petition.

This battle over predictive coding and Judge Peck’s participation has continued for over 18 months.  For those who may have not been following the case or may be new to the blog, here’s a recap.

Last year, back in February, Judge Peck issued an opinion making this case likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted the plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, 2012, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck’s rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup’s production of electronically stored information.  On June 15, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal.  Judge Carter ruled on the plaintiff’s recusal request on November 7 of last year, denying the request and stating that “Judge Peck’s decision accepting computer-assisted review … was not influenced by bias, nor did it create any appearance of bias”.

The plaintiffs then filed a petition for a writ of mandamus with the Second Circuit of the US Court of Appeals, which was denied this past April, leading to their petition for a writ of certiorari with the US Supreme Court, which has now also been denied.

So, what do you think?  Will we finally move on to the merits of the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Use of Model Order Doesn’t Avoid Discovery Disputes – eDiscovery Trends

In MediaTek, Inc. v. Freescale Semiconductor, Inc. (N.D. Cal. Aug. 28, 2013), when the parties could not agree on search terms, California Magistrate Judge Jacqueline Scott Corley ordered one party to run test searches before lodging objections and required both parties to meet and confer before approaching the court with further discovery disputes.

The parties in this patent infringement matter “took steps to rein in” the exorbitant expenses of e-discovery in patent litigation by adopting the Federal Circuit’s Model E-Discovery Order. The parties proposed, and the district court approved, limitations on discovery. In addition to other limitations on interrogatories and depositions, they also agreed to limits on e-mail production. Specifically, they agreed that “production would be phased to occur after basic document production, that such production would be limited to seven custodians per producing party, and that each requesting party would ‘limit its email production requests to include no more than fifteen (15) search terms per producing party for all such requests, with no more than seven (7) search terms used to search the email of any one custodian.’”

However, as the court noted, the “parties’ laudable efforts at controlling discovery costs . . . imploded.” As discovery closed, the plaintiff filed 10 joint discovery letters seeking additional discovery from the defendant; simultaneously, the defendant filed a non-joint letter to “‘preserve its right to discover [] withheld documents.’”

MediaTek asked the court to order Freescale to produce the e-mail of seven custodians based on 15 search terms and “further identified the 7 search terms to be applied to each custodian’s email as required by the stipulated ESI Discovery Order.” Freescale objected and refused to run any searches.

The court addressed certain search terms, ruling as follows:

“The search terms which are variants of the word “United States,” including “domestic,” are considered one search term. The terms”*mcf* OR *mx* OR *mpc* OR *ppc* OR *pcf* OR *sc*” are not variants of the same word; instead, each term applies to a different accused product. Accordingly, each is a separate search term. The same is true for *845* OR *331* etc.; each refers to a different patent, not a variant of the same word. Thus, for example, MediaTek’s first proposed search term (Dkt. No. 133-1 at 3) is actually six search terms.”

The judge ruled the remaining objections to search terms and date ranges premature. Although Freescale claimed the terms were overly broad, it had “not run a test search on a single identified custodian for any of the proposed searches.” If it were to do so, it might learn “that the searches will not return a disproportionately burdensome number of hits.” If, on the other hand, they returned too many irrelevant documents, then the parties needed to work together to narrow the requests.

Therefore, the court ordered MediaTek to provide amended search requests and for Freescale to run test searches before asserting that any request was too broad. If Freescale did find the requests objectionable, the parties had to “meet and confer in person.” As the court noted, the “[t]he process is designed to be collaborative, something that has not occurred up to this point.”

So, what do you think?  Should courts require producing parties to test searches before declaring them overly broad?   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.

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