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Proportionality

Never Mind! Plaintiffs Not Required to Use Predictive Coding After All – eDiscovery Case Law

Remember EORHB v. HOA Holdings, where, in a surprise ruling, both parties were instructed to use predictive coding by the judge?  Well, the judge has changed his mind.

As reported by Robert Hilson in the Association of Certified E-Discovery Specialists® (ACEDS) web site (subscription required), Delaware Chancery Court Vice Chancellor J. Travis Laster has revised his decision in EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. May 6, 2013).  The new order enables the defendants to continue to utilize computer assisted review with their chosen vendor but no longer requires both parties to use the same vendor and enables the plaintiffs, “based on the low volume of relevant documents expected to be produced” to perform document review “using traditional methods.”

Here is the text of this very short order:

WHEREAS, on October 15, 2012, the Court entered an Order providing that, “[a]bsent a modification of this order for good cause shown, the parties shall (i) retain a single discovery vendor to be used by both sides, and (ii) conduct document review with the assistance of predictive coding;”

WHEREAS, the parties have proposed that HOA Holdings LLC and HOA Restaurant Group LLC (collectively, “Defendants”) retain ediscovery vendor Kroll OnTrack for electronic discovery;

WHEREAS, the parties have agreed that, based on the low volume of relevant documents expected to be produced in discovery by EORHB, Inc., Coby G. Brooks, Edward J. Greene, James P. Creel, Carter B. Wrenn and Glenn G. Brooks (collectively, “Plaintiffs”), the cost of using predictive coding assistance would likely be outweighed by any practical benefit of its use;

WHEREAS, the parties have agreed that there is no need for the parties to use the same discovery review platform;

WHEREAS, the requested modification of the Order will not prejudice any of the parties;

NOW THEREFORE, this –––– day of May 2013, for good cause shown, it is hereby ORDERED that:

(i) Defendants may retain ediscovery vendor Kroll OnTrack and employ Kroll OnTrack and its computer assisted review tools to conduct document review;

(ii) Plaintiffs and Defendants shall not be required to retain a single discovery vendor to be used by both sides; and

(iii) Plaintiffs may conduct document review using traditional methods.

Here is a link to the order from the article by Hilson.

So, what do you think?  Should a party ever be ordered to use predictive coding?  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.

Court Rejects Defendants’ Claim of Undue Burden in ERISA Case – eDiscovery Case Law
 

In the case we covered on Monday, the court ruled for the defendant in their effort to avoid what they felt to be undue burden and expense in preserving data.  Here is another case where the defendant made an undue burden claim, but with a different result.

In the case In re Coventry Healthcare, Inc.: ERISA Litigation, No. AW 09-2661 (D. Md. Mar. 21, 2013), Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

In this Employee Retirement Income Security Act (ERISA) class action, a discovery dispute arose when the defendants filed a motion to curtail the relevant time frame for discovery due in part to the burden it would impose on them. The plaintiffs sought discovery from February 9, 2007 to October 22, 2008; the defendants asked the court to limit it to January 1, 2008 to June 30, 2008.

The defendants relied on Rule 26(b)(2)(C)(iii) to establish that the burden of producing the data outweighed any benefit it offered the plaintiffs. Judge Schulze noted that the “party seeking to lessen the burden of responding to electronic records discovery ‘bears the burden of particularly demonstrating that burden and of providing suggested alternatives that reasonably accommodate the requesting party’s legitimate discovery needs’”.

Here, the defendants claimed they tested the plaintiffs’ proposed search terms on the custodians’ data and hit 200,000 documents. They claimed it would cost roughly $388,000 to process, host, and review the data for responsiveness and privilege. However, the defendants did not suggest “any alternative measures that could reasonably accommodate Plaintiffs’ discovery needs other than negotiating more refined search terms.”

In response, the plaintiffs argued they had tried to collaborate with the defendants to “develop appropriate searches for ESI by limiting the searches to certain designated custodians” and by shortening the discovery period by three months.

Judge Schulze found that the narrowing of the discovery period would reduce the costs, and that “a clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege.” Finally, “[t]o further reduce any undue burden, Plaintiffs may need to refine their proposed search terms to narrow the pool of potentially relevant documents.”  With these options available, Judge Schulze found that the defendants had not met their burden to show that producing the evidence would be unduly burdensome.

So, what do you think?  Should the defendant’s 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.

Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough – eDiscovery Case Law

In United States ex rel. King v. Solvay, S.A., No. H-06-2662, 2013 U.S. Dist. LEXIS 30752 (S.D. Tex. Mar. 5, 2013), Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

In this False Claims Act, the plaintiffs, qui tam relators whose claims led to investigation by several state attorneys general, claimed the defendants engaged in off-label promotion of drugs, violated the anti-kickback statute, and retaliated against them.

The defendant, Solvay Pharmaceuticals, now doing business as Abbott Products (after Abbott acquired Solvay in 2010), filed a motion seeking a protective order from having to respond to the relators’ discovery requests about ongoing fraud, which it claimed were irrelevant to the claims in the lawsuit.

During the course of discovery, the company imposed a litigation hold and preserved more than 2,500 eMail backup tapes, more than 56,000 network share backup tapes, and roughly 5 terabytes of data on its network share drives—all dating from the 1990s through 2010 – and covering 89 custodians, both former and current employees. But the relators requested more. If the litigation hold were to expand to accommodate the relators’ requests, it would require the company to dedicate additional server space to store the data. Moreover, the company argued that it would cost at least $480,000 to process the eMails it was already preserving, and the review of those eMails would cost $2.3 million, excluding quality control, privilege review, and production costs. Adding the additional data from after Abbott acquired Solvay would drive these costs substantially higher. The relators objected, suggesting that the company’s “sweeping generalizations” about the potential burden were inaccurate. In the alternative, the relators agreed to an end date of December 31, 2012 or to depose witnesses to determine the appropriate cutoff.

Under Federal Rule of Civil Procedure 26(c)(1), courts can limit discovery to protect parties from undue burden or expense. Judge Miller agreed with the defendant that a few references that conduct was continuing “‘to the present’ in a 267-page complaint containing more than 768 paragraphs does not justify the burden and expense associated with unfettered discovery ‘to the present’ in a case in which discovery is already going to be incredibly expensive and time-consuming.” Although Judge Miller was willing to extend the relevant time frame to include some claims outside of the relators’ personal knowledge because the real party in interest was the United States, he was not willing to go so far as to permit the “generalized claims of ongoing conduct to form the basis for a fishing expedition.”  As a result, he granted the motion for a protective order, limiting the time frames for Solvay’s discovery obligations.

So, what do you think?  Was the judge right to limit the defendant’s discovery obligations?  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.

Court Forces Defendant to Come to Terms with Plaintiff Search Request – eDiscovery Case Law

In Robert Bosch LLC v. Snap-On, Inc., No. 12-11503, (D. ED Mich. Mar. 14, 2013), Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform.  The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

The plaintiff filed a motion to compel the defendant to perform the following two search terms for discovery purposes (where “!” is a wildcard character):

  • (diagnostic! and test!), and
  • ([ECU or “electronic control unit”] and diagnostic!)

Under Fed. R. Civ. P. 34(a)(1)(A), a party must produce relevant documents and electronically stored information. While the defendant did not dispute that the search terms are relevant, they argued that the terms were so broad and commonly used in day-to-day business that searching the terms would be burdensome and result in overproduction by including large portions of their business unrelated to the case.  The defendant’s arguments were twofold:

  1. Overbroad: The defendant claimed that “the word ‘diagnostics’ is included in at least one custodian’s email signature and that ‘the vast majority of documents in Snapon’s Diagnostic Group include the word `Diagnostics,’ thereby effectively reducing the disputed terms to `test!’ and `(ECU or “electronic control unit”).’”
  2. More Appropriate Alternatives: The defendant contended that the term “diagnostic” would be sufficiently searched by already agreed upon searches which pair “diagnostic” with “more narrowly tailored conjunctive terms, such as ‘plug’ and ‘database,’ that are not as common as ‘test’ and ‘ECU.’” The defendant also claimed that the search terms were unnecessary because they agreed to run searches of all of the variations of the names of the accused products.

Judge Cleland stated that he found the defendant’s arguments “unpersuasive”, stating that “[e]ven though Snap-on has agreed to search all variations of the names of the accused products, the disputed search terms may uncover relevant documents that do not contain the accused products’ names. The court is not convinced that the terms “test” and “ECU” are significantly more common than “plug” and “database” such that searching (diagnostic! and plug) is reasonable but searching (diagnostic! and test!) is burdensome.”

Judge Cleland also suggested techniques “to limit any overproduction”, including not producing emails in which the term “diagnostic” was found only in the signature portion and using proximity connectors (agreed-upon with the plaintiff) in the searches.  He also recommended that the defendant “should communicate the proposed techniques to Bosch prior to running the searches” and that the “parties should discuss and agree upon the details of the techniques so that the searches are conducted without generating further motion practice on the matter.”

The judge, however, denied the plaintiff’s request for sanctions in the form of reimbursement of attorneys’ fees and expenses for filing the motion to compel, indicating that the defendant “has provided logical reasons for objecting to the disputed search terms”.

It’s interesting that the defendant didn’t provide document retrieval counts and try to argue on the basis of proportionality.  Perhaps providing the counts would reveal too much strategy?  Regardless, it seems that the wildcard search for “test” could be argued as potentially overbroad – there are 60 words in the English language that begin with “test”.  It looks like somebody is getting “wild” with wildcards!

So, what do you think?  Could the defendant have made a more effective argument, based on proportionality?  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.

Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected – eDiscovery Case Law

Is it possible to produce documents for discovery too early?  At least one plaintiff’s group says yes.

In the case In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), thhttps://cloudnine.com/ediscoverydaily/ralph-losey-of-jackson-lewis-llp-ediscovery-trends-part-1/e Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching.  Indiana District Judge Robert L. Miller, Jr. denied the request.

Defendant’s Discovery Efforts to Date

In this dispute over hip implant products, the defendant began producing documents in cases that were eventually centralized, despite (sometimes forceful) requests by plaintiffs’ counsel not to begin document production until the decision whether to centralize was made.  The defendant used keyword culling to reduce the universe of documents and attachments from 19.5 million documents to 3.9 million documents, and removing duplicates left 2.5 million documents and attachments. The defendant performed statistical sampling tests, with a 99 percent confidence rate, to determine that between .55% and 1.33% of the unselected documents would be responsive and (with the same confidence level) that between 1.37% and 2.47% of the original 19.5 million documents were responsive.  The defendant’s approach actually retrieved 16% of the original 19.5 million.  The defendant then performed predictive coding to identify responsive documents to be produced from the set of 2.5 million documents.

According to the order, the defendant’s eDiscovery costs “are about $1.07 million and will total between $2 million and $3.25 million.” {emphasis added}  The defendant “invited the Plaintiffs’ Steering Committee to suggest additional search terms and offered to produce the rest of the non-privileged documents from the post-keyword 2.5 million”, but they declined, “believing they are too little to assure proper document production”.

Plaintiffs’ Objections

The plaintiffs’ Steering Committee objected, claiming that the defendant’s use of keyword searching “has tainted the process”, pointing to an article which “mentioned unidentified ‘literature stating that linear review would generate a responsive rate of 60 percent and key word searches only 20 percent, and [the defendants in the case being discussed] proposed that predictive coding at a 75 percent responsive rate would be sufficient.’” {emphasis added}  They requested that the defendant “go back to its 19.5 million documents and employ predictive coding, with plaintiffs and defendants jointly entering the ‘find more like this’ commands.”  In response to the defendant’s objections that virtually starting over would cost additional millions, the Steering Committee blamed the defendant for spending millions on document production despite being warned not to begin until the cases had been centralized.

Judge’s Ruling

Noting that “[w]hat Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2)”, Judge Miller noted that “the Steering Committee’s request that Biomet go back to Square One…and institute predictive coding at that earlier stage sits uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Continuing, Judge Miller stated:

“Even in light of the needs of the hundreds of plaintiffs in this case, the very large amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of this discovery in resolving the issues, I can’t find that the likely benefits of the discovery proposed by the Steering Committee equals or outweighs its additional burden on, and additional expense to, Biomet.”

Judge Miller also rejected the Steering Committee’s position that the defendant can’t rely on proportionality arguments because they proceeded with document production while the centralization decision was pending: “The Steering Committee hasn’t argued (and I assume it can’t argue) that Biomet had no disclosure or document identification obligation in any of the cases that were awaiting a ruling on (or even the filing of) the centralization petition.”  As a result, he ruled that the Steering Committee would have to bear the expense for “production of documents that can be identified only through re-commenced processing, predictive coding, review, and production”.

So, what do you think?  Was the judge correct to accept the defendant’s multimodal approach to discovery?  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.

Changes to Federal eDiscovery Rules Could Be Coming Within a Year – eDiscovery Trends

As reported by Henry Kelston in Law Technology News (Are We on the Cusp of Major Changes to E-Discovery Rules?), another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  The United States Courts’ Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

Potential Revisions that Have Impact to Discovery Include:

  • Rule 26: Changes incorporate a limitation to the general scope of discovery allowed by Rule 26(b)(1) as to what is proportional to the needs of the case, measured by the cost-benefit calculus now required by Rule 26(b)(2)(C)(iii) that is currently used most often when a party moves to limit discovery.
  • Rules 30 and 31: Changes reduce the number of depositions (oral and written) allowed per side, from 10 to 5, and reduce the time limit for each deposition, from 7 hours to 6 hours.
  • Rule 33: Changes reduce the number of interrogatories permitted, from 25 to 15.
  • Rule 34: Amendment requires that objections to document requests be stated with specificity and include a statement as to whether any responsive materials are being withheld on the basis of the objection.
  • Rule 36: Implements a new limit of 25 requests for admission for each party, with requests to admit the genuineness of documents expressly exempted from the limit of 25.
  • Rule 37: The proposed amendment in Rule 37(e) is intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation, establishing a non-sanction category of measures a court may impose when it finds that a party failed to meet its preservation obligation, such as allowing additional discovery, requiring a party to recreate or obtain the information it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.  Rule 37(b)(2)(A) includes a “hotly debated” amendment that the court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

The proposed changes to Rule 37, in particular, appear to give producing parties more latitude when failing to meet their preservation obligation was not willful or in bad faith.  As the article notes, “if the standing committee approves the proposed amendments for publication at its meeting in early June, the amendments would be published for public comment soon thereafter. The public comment period for proposed rules normally lasts six months. The advisory committee, anticipating a high level of public interest in the proposals, plans to hold several days of public hearings in different cities around the U.S., with dates and locations yet to be announced.”

So, what do you think?  Are you pleased or concerned with the proposed amendments?  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.

Appeals Court Upholds Decision Not to Recuse Judge Peck in Da Silva Moore – eDiscovery Case Law

As reported by IT-Lex, the Second Circuit of the US Court of Appeals rejected the Plaintiff’s request for a writ of mandamus recusing Magistrate Judge Andrew J. Peck from Da Silva Moore v. Publicis Groupe SA.

The entire opinion is stated as follows:

“Petitioners, through counsel, petition this Court for a writ of mandamus compelling the recusal of Magistrate Judge Andrew J. Peck. Upon due consideration, it is hereby ORDERED that the mandamus petition is DENIED because Petitioners have not ‘clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion’ in denying their district court recusal motion, In re Basciano, 542 F. 3d 950, 956 (2d Cir. 2008) (internal quotation marks omitted) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988)), or that the district court erred in overruling their objection to that decision.”

Now, the plaintiffs have been denied in their recusal efforts in three courts.

Since it has been a while, let’s recap the case for those who may have not been following it and may be new to the blog.

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, 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, 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”.

So, what do you think?  Will this finally end the recusal question in this 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.

The Hammer Comes Down on Losing Plaintiff for Spoliation of Data – eDiscovery Case Law

Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data.  You can also be ordered to pay the winning party over $200,000 in fees and costs for the case.

In Taylor v. Mitre Corp., No. 1:11-cv-1247, 2013 (E.D. Va. Feb. 13, 2013), Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence. The court refused to grant the costs of image processing because the defendant did not adequately explain the services involved; it granted the costs of forensic analysis of the plaintiff’s laptop and made a partial award of attorneys’ fees given the difficulty in litigating this issue.

In November 2012 (as discussed on this blog here), Judge O’Grady dismissed the plaintiff’s employment-related claims against his former employer, Mitre. Taylor had used a sledgehammer to destroy a computer and data wiping programs to eliminate data from his laptop, prompting case-ending spoliation remedies. When the court ruled in favor of Mitre, it also ruled that Taylor should pay for Mitre’s fees and costs associated with its motion for sanctions.

Mitre claimed fees in the amount of $378,480 and costs in the amount of $49,245. The fees included the costs of forensic analysis of Taylor’s computer and image processing. Noting the “scant case law on the issue of image processing,” Judge O’Grady declined to award costs for this service and also referenced Mitre’s failure to explain “what these image processing services entailed (for example, what does it mean to ‘blow back TIFF images,’ why does it cost $686.00, and why did it need to be performed twice?), but Mitre [made] no claim that the resulting images were ever admitted into evidence.” Although rejecting more than $5,000 of Mitre’s claim, the court permitted Mitre to submit an additional motion to explain these fees.

Mitre also claimed costs of more than $32,000 to analyze Taylor’s laptop. Finding that “Taylor’s intentional destruction of evidence no doubt made forensic analysis of his computer more time consuming and expensive,” Judge O’Grady awarded the fee. However, he partially rejected the request for costs because “the Taxation Guidelines do not entitle Mitre to expert witness fees beyond the $40 per day, plus travel and incidentals, afforded to lay witnesses.” Accordingly the court awarded Mitre the costs of the forensic analysis, minus the costs of $3,200 charged for “‘testimony preparation’ and ‘expert testimony.’”

In addition, Mitre’s attorneys sought compensation for the work they did “as a result of Mr. Taylor’s spoliation. The bill is for 649.2 hours of attorney time and 245.4 hours of paralegal time, for a grand total of $378,480.00 in fees.” The court reduced the hours of the attorneys to 487 hours, finding that some of the time would have been spent regardless of the spoliation, with the rest acceptable because the “spoliation issue was, however, contentious and much ink was spilled.” The court rejected the request for paralegal time, finding the tasks they performed either administrative or attorney work. Ultimately, the court awarded fees of $163,882.18.  Including the awarded costs, the total came to $202,399.66 in fees and costs awarded – a hefty price for using a sledgehammer and data wiping software on two discoverable computers.

So, what do you think?  Were the awarded costs appropriate?  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.

Court Says Scanning Documents to TIFF and Loading into Database is Taxable – eDiscovery Case Law

Awarding reimbursement of eDiscovery costs continues to be a mixed bag.  Sometimes, reimbursement of costs is awarded, such as in this case and this case.  Other times, those requests have been denied (or reversed) by the courts, including this case, this case and this case.  This time, reimbursement of eDiscovery costs was approved.

In Amana Society, Inc. v. Excel Engineering, Inc., No. 10-CV-168-LRR, (N.D. Iowa Feb. 4, 2013), Iowa District Judge Linda R. Reade found that “scanning [to TIFF format] for Summation purposes qualifies as ‘making copies of materials’ and that these costs are recoverable”.

With regard to the plaintiff’s claims of negligent misrepresentation and professional negligence, the defendant obtained partial summary judgment from the court on one claim and prevailed at trial on the other claim. The defendant subsequently filed a bill of costs asking the court to tax $51,233.51 in fees against the plaintiff, including “fees and disbursements for printing.” Last October, the plaintiff filed an objection to the bill of costs; in its response, the defendant withdrew its requests for certain costs and reduced the total amount requested to $50,050.61.

The requested costs included $6,000 in copying costs, including almost $5,000 in costs for uploading documents to Summation, the popular litigation support software application. The plaintiff claimed the costs were not taxable because “(1) the costs were incurred for the convenience of counsel; and (2) the costs were discovery related and were not necessary for use at trial.” On the other hand, the defendant asserted “‘[t]he electronic scanning of documents is the modern-day equivalent of exemplification and copies of paper and therefore can be taxed pursuant to§ 1920(4).’”  Taxable costs under 28 U.S.C. § 1920, includes “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

Judge Reade cited Race Tires America, Inc. v. Hoosier Racing Tire Corp. (where the winning defendants were originally awarded $367,000 as reimbursement for eDiscovery costs, but that amount was reduced to $30,370 on appeal), and found “the conversion of native files to TIFF . . . and the scanning of documents to create digital duplicates are generally recognized as the taxable ‘making copies of material.’”  Approving reimbursement for these expenses “in light of the facts and document-intensive nature of this case”, the judge rejected the plaintiff’s claim that $2,435.68 of the Summation costs awarded should be disallowed because “they were incurred for discovery purposes”, noting that “[t]here is no absolute bar to recovering costs for discovery-related copying and scanning.”

Judge Reade refused to reimburse some other document related costs, noting that “Bates match, OCR and document utilization are used to organize documents and make them searchable, activities that would traditionally be done by attorneys or support staff, and therefore, are not taxable.”

So, what do you think?  Should the costs have been awarded?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

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

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

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

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

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

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

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