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Proportionality

Don Philbin of Picture It Settled – eDiscovery Trends

This is the fourth of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Don Philbin.  Don is a nationally recognized attorney-mediator and is President and founder of Picture It Settled®, a predictive analytics tool for negotiation.  Holding both a law degree and an MBA, Don mediates individual and class matters, and he teaches courses at Pepperdine Law’s Straus Institute for Dispute Resolution.  He was one of three Texas mediators listed in the 2011 inaugural edition of The International Who’s Who of Commercial Mediation, and he was named the 2011 Outstanding Lawyer in Mediation by the San Antonio Business Journal.   He is an elected fellow of the International Academy of Mediators and the American Academy of Civil Trial Mediators.

What are your general observations about LTNY this year and how it fits into emerging trends?

This is my first LegalTech and I was kind of “bug eyed” about it.  It’s a big show.  Everyone that I’ve talked to tells me this year’s show is bigger than it has been in four years and I rode in the elevator with some of the ALM execs this morning and they were happy to see the increased attendance.  As for some of the highlights of the show so far, I went to yesterday’s keynote and enjoyed hearing Ted Olsen’s speech – he is always interesting.  I also went to a couple of eDiscovery forums that were mainly focused on housing the data and security concerns for the data.  I did walk through the exhibit hall to check out the variety of vendors and clearly most of them appear to be eDiscovery related, though there were some telecom and conferencing vendors.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

I may not the best one to ask about that since I am not a vendor, but it looks to me like the “next big thing” would be adoption of the predictive coding technology at this point.  It seems as though the court opinions that have come through have validated the technology as acceptable.  A survey on Twitter at one of the sessions found that 48% of respondents have been involved in predictive coding or technology assisted review in the last year and one of the commentators at the session said “this is the bubble”.  So, it seems as though the development for the next year is how far it gets outside “the bubble” in terms of adoption.

What are you working on that you’d like our readers to know about?

We’re here to let people know about Picture It Settled, which is a predictive analytics tool in its own right – for the settlement negotiation process.  To support this process, we have collected data for about ten thousand cases – not just the outcomes, but also the incremental moves that people make in negotiation.  Some cases have as few as two or three rounds while others have many more – one case has at least fifty four pain staking rounds of negotiation.  We measure two dimensions of data: the dollar concession for each offer (i.e., the dollar amount each negotiating party moves from one offer to the next) and the elapsed time between the offers.  We know the right number at the wrong time is the wrong number.  People have to get used to the deal and need ample time to ensure that they are getting everything they possibly can from the other side.  Also, negotiations always expand to fit the space available.  Whether it’s deal making in Washington regarding the fiscal cliff, or settlement negotiations for a case, negotiating parties tend to go “right up to the buzzer” to make the deal.

We find that an all-day negotiation will typically take all day, so the question is “how do you pace yourself so that you can get the best deal?”  We have reverse engineered “splines” that separate the settled cases from the cases that ended in impasse. From that, we studied how successful negotiators “let out the string” in a way that kept their opponent engaged and cooperative instead of going competitive and “slamming their briefcase.” So we have developed a planning curve from the successful negotiations that can be applied to the current round.

Also, cases vary in value depending on the venue where they are filed and also by claim type.  For example, people negotiate personal injury cases differently than construction cases.  We collect the demographic data, ask whether there is insurance and the financial size of the negotiating parties.  Each of us have different risk preferences and tolerances. The scenario planning piece enables the lawyers to do a “high/medium/low/zero” assessment of the case, estimating their best case, worst case and in-between scenario. By attaching probabilities to those assessments, scenarios start to develop.  They use that tool to frame a valuation for the case.

Assuming you are going to negotiate the case and, for example, that the weighted average of the scenarios are $1.6 million, the software will plot the curve and suggest to you what you might consider in terms of offers to get from the best case scenario of perhaps $4 million if you are the plaintiff down to $1.9 million or whatever you assess to be your best alternative to a negotiated deal.  The inputs are lawyer driven, requiring their expertise.  So, this is certainly not removing the lawyers from the negotiation process; instead, it is just giving them a “scope on their gun” to “improve their aim” in negotiations.

The third component of the application is the most powerful. Based on early offers, the Settlement Prophet™ will make forecasts resembling “hurricane” projections, which take the data points on each side and project those out as many as fifth rounds to get a sense of where the opposing party might be headed. The darkest intersect point of the hurricane-type cones is the best estimate of where negotiations are headed. Armed with such data, a user can make mid-course corrections.  It is truly a data driven approach to improving your shot in negotiations.

{Editor’s Note: Don provided a demo for me of the software at the show so the comments above reflect that.  For more information about Picture It Settled and to request your own demo, click here.}

Thanks, Don, for participating in the interview!

And to the readers, as always, 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.

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 1

2012 was quite a year from an eDiscovery standpoint, with a number of cases that impacted how organizations handle discovery.  There were case decisions that broke new ground (such as technology assisted review) and other cases that showed that many organizations still have a lot to learn in terms of inadvertent disclosures of privileged documents and sanctions assessed due to spoliation.

As we did last year, it seems appropriate to review cases from 2012 before moving forward to this year.  eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue.  Here are three such cases:

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification.  In Boeynaems v. LA Fitness International, LLC, Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

There’s a New Sheriff in Town – Judge Facciola.  In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery.  In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC.

PRIVILEGE / INADVERTENT DISCLOSURES

There were a few cases related to privilege issues, with parties failing the five factor test and paying the price for inadvertent disclosures of privileged documents (even when disclosing two privileged pages out of two million pages produced!).  Here are five cases where disclosure of privileged documents was addressed:

Another Disclosure of Privileged Documents Fails the Five Factor Test.  In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Counsel, The Inadvertent Disclosure “Buck” Stops With You.  In Blythe v. Bell, North Carolina Business Superior Court Judge James L. Gale denied a motion for an order compelling the return of privileged documents inadvertently disclosed by the defendants, ruling that privilege had been waived on those documents.

Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production.  In D’Onofrio v. Borough of Seaside Park, New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure.

Inadvertent Disclosure By Expert Waives Privilege.  In Ceglia v. Zuckerberg (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege.  In Jacob v. Duane Reade, Inc., Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner. According to Defendants’ counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

EDISCOVERY COST REIMBURSEMENT

In 2011, there were several cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Last year, that trend reversed somewhat as there were some cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted).  Here are five cases, some of which fall into each category:

Court Reduces, But Allows, Reimbursement of eDiscovery Costs.  In Moore v. The Weinstein Company LLC, noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

Trend Has Shifted Against Reimbursement of eDiscovery Costs.  Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs. Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts. Now, here is another case where reimbursement of eDiscovery costs was denied.

Google Awarded $1 Million from Oracle, But Denied Discovery Costs.  Judge William Alsup ordered Oracle to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software. However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted.  Last May, in Race Tires America, Inc. v. Hoosier Racing Tire Corporation, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs. (Hoosier Daddy!) But, then in March, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs. Now, a new case addresses the issue of taxation of costs once again.

Not So Fast On eDiscovery Cost Reimbursement.  Today, we look at another eDiscovery ruling where a significant reduction in award amount was ruled.

We’re just getting started!  Tomorrow, we will cover cases related to social media and technology assisted review.  Stay tuned!

So, what do you think?  Did you miss any of these?  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 Reduces, But Allows, Reimbursement of eDiscovery Costs – eDiscovery Case Law

In some cases, such as this case and this case, the prevailing party received reimbursement of eDiscovery costs, whereas in this case, this case and this case requests for reimbursement of costs was denied (or reversed) by the courts.  In this case, the prevailing party was awarded a reduced amount, but still received reimbursement of eDiscovery costs.

In Moore v. The Weinstein Company LLC, No. 3:09-cv-0166, 2012 U.S. Dist. (M.D. Tenn. Dec. 18, 2012), noting it had wide discretion to determine costs recoverable by a prevailing party under federal statutes providing for the taxation of costs, a court reduced costs awarded for eDiscovery expenditures based on its analysis of which costs were reasonable, necessary, and taxable.

In this case involving Samuel David Moore, professionally known as Legendary Soul Man Sam Moore, and others as plaintiffs, the defendants prevailed on a motion for summary judgment and subsequently filed a bill of costs. The plaintiffs, however, objected to the costs, and therefore U.S. Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) reviewed the case. One category of costs the plaintiffs objected to involved eDiscovery expenses.

The court noted that the defendants requested over $40,000 in costs for eDiscovery, approximately half of which was to compensate a third-party vendor for its services. Other costs were for expenses related to in-house eDiscovery work performed by defendants’ counsel Waller, Lansden, Dortch & Davis, LLP. The court also noted that the parties had agreed to the eDiscovery procedures they would use in their Case Management Order, and these processes included producing electronic data in a TIFF format.

Noting simply that precedent gives courts wide discretion in determining which costs are taxable, the court concluded that certain eDiscovery expenditures submitted by the defendants in their bill of costs were reasonably taxable and some were not:

The Magistrate Judge has reviewed these charges and believes some are unreasonable and should be reduced or eliminated. The Document Solutions charges are reasonable and necessary. Pursuant to the Case Management Order, costs for processing documents into specific formats were required to be borne by each party. Moreover, further processing that document for production by, for example, searching for specific custodians, is also a necessary cost of this litigation.

With respect to the in-house “Technology Services” charges, however, the Magistrate Judge is persuaded that the per hour charge of $150 is unreasonable. Document Solutions billed “tech time” at $175 per hour, which would presumably be significantly higher than the rates billed to Waller clients by Waller’s in-house technical staff. The Magistrate Judge believes that a rate comparable to an experienced paralegal would be more appropriate. The technology services technologists have specialized expertise and training similar to a paralegal. Therefore, the Magistrate Judge will set a more reasonable billing rate of $100/hour for Technology Services billing.

Additionally, the Magistrate Judge concluded that several other costs were “not properly taxed” to the plaintiffs, including costs for “[w]ork on discovery budget”; and “[p]reparation of deposition transcripts for review” and “[p]reparation of documents for hearing,” as they represented “paralegal work.” Finally, an entry for an attorney to “[p]repare for and attend [a] telephonic deposition of IT vendor” was deemed non-taxable by the court as it was “unnecessary.”

Accordingly, the court reduced the total taxable costs for eDiscovery to $36,196.90.

So, what do you think?  Should the costs have been reimbursed?  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.

Trend Has Shifted Against Reimbursement of eDiscovery Costs – eDiscovery Case Law

Last year, the trend seemed to be to award the prevailing party reimbursement of eDiscovery costs, including in this case and this case.  Now, that trend appears to have been reversed with those requests being denied (or reversed) by the courts, including this case and this case.  Now, here is another case where reimbursement of eDiscovery costs was denied.

In adhering to the Third Circuit’s 2012 decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp., a district court declined to permit a prevailing party to bill its opponent under 28 U.S.C. § 1920(4) in Abbott Point of Care, Inc. v. Epocal, Inc., No. CV-08-S-543-NE, 2012 U.S. Dist. (N.D. Ala. Nov. 5, 2012) for costs associated with its eDiscovery database because such a request did not comport with a strict interpretation of the statute.

In a lawsuit originally based on Abbott’s allegations that Epocal infringed four of its patents and tortiously interfered with the employment contracts of some of its former employees, a jury awarded Epocal a fully favorable decision. The judgment provided that all costs associated with the lawsuit were taxed to Abbott; accordingly, Epocal filed a bill of costs with the court. This dispute arose when Abbott objected to Epocal’s bill of costs.

The points of the bill that Abbott disputed included “$175,390 in eDiscovery database charges through discovery (item 5) [and] $165,108 in eDiscovery database charges through trial (item 6).” The court pointed out that although “Abbott object[ed] to Epocal’s recovery of any costs for the creation and maintenance of an electronic discovery database under § 1920(4),” the Eleventh Circuit had not issued any controlling guidance on how courts within its limits should interpret the language of Section 1920(4). {emphasis added}

The court noted that Abbott relied on, and many district courts—including those within the Eleventh Circuit—also turned to Race Tires, where “[t]he Third Circuit emphasized that the determination of whether a particular cost can be awarded pursuant to § 1920 is purely a matter of statutory construction.” Section 1920(4) permits taxation only for “‘exemplification’ or ‘making copies,’” and the Third Circuit further explained that those actions meant “‘produc[ing] illustrative evidence or the authentication of public records.’” The court noted that because the statute did not provide for such relief, “[t]he Third Circuit refused to give any weight to equitable considerations, including the importance of database services to the ultimate act of production, the technical skill required to create a database, and the ‘efficiencies and cost savings resulting from the efforts of electronic discovery consultants.’” Moreover, the Third Circuit “refused to allow costs for any of the steps that might lead up to the actual copying of documents or other materials, including ‘gathering, preserving, processing, searching, culling, and extracting’ discoverable information.”

Although the court was “sympathetic to the practical arguments advanced by Epocal,” it declined to extend the scope of the Third Circuit’s interpretation of Section 1920(4). Noting that “[u]nfortunately . . . the law does not always favor efficiency or practicality,” the court followed the Third Circuit’s “thorough, reasonable, and persuasive interpretation of that statute.” As such, it found that Epocal would “not be permitted to recover any costs for the maintenance of an electronic discovery database” and therefore it did not need to distinguish between the costs Epocal requested for eDiscovery charges incurred at different times during the litigation.

So, what do you think?  Should the costs have been reimbursed?  Should prevailing parties have some means for recouping their eDiscovery costs?  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.

Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends

According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”.  Let’s take a closer look at the numbers and look at some cases in each category.

As indicated in their December 4 news release, in the past year, Kroll Ontrack experts summarized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of electronically stored information (ESI). The breakdown of the major issues that arose in these eDiscovery cases is as follows:

  • Thirty-two percent (32%) of cases addressed sanctions regarding a variety of issues, such as preservation and spoliation, noncompliance with court orders and production disputes.  Out of 70 cases, that would be about 22 cases addressing sanctions this past year.  Here are a few of the recent sanction cases previously reported on this blog.
  • Twenty-nine percent (29%) of cases addressed procedural issues, such as search protocols, cooperation, production and privilege considerations.  Out of 70 cases, that would be about 20 cases.  Here are a few of the recent procedural issues cases previously reported on this blog.
  • Sixteen percent (16%) of cases addressed discoverability and admissibility issues.  Out of 70 cases, that would be about 11 cases.  Here are a few of the recent discoverability / admissibility cases previously reported on this blog.
  • Fourteen percent (14%) of cases discussed cost considerations, such as shifting or taxation of eDiscovery costs.  Out of 70 cases, that would be about 10 cases.  Here are a few of the recent eDiscovery costs cases previously reported on this blog.
  • Nine percent (9%) of cases discussed technology-assisted review (TAR) or predictive coding.  Out of 70 cases, that would be about 6 cases.  Here are a few of the recent TAR cases previously reported on this blog, how many did you get?

While it’s nice and appreciated that Kroll Ontrack has been summarizing the cases and compiling these statistics, I do have a couple of observations/questions about their numbers (sorry if they appear “nit-picky”):

  • Sometimes Cases Belong in More Than One Category: The case percentage totals add up to 100%, which would make sense except that some cases address issues in more than one category.  For example, In re Actos (Pioglitazone) Products Liability Litigation addressed both cooperation and technology-assisted review, and Freeman v. Dal-Tile Corp. addressed both search protocols and discovery / admissibility.  It appears that Kroll classified each case in only one group, which makes the numbers add up, but could be somewhat misleading.  In theory, some cases belong in multiple categories, so the total should exceed 100%.
  • Did Cases Addressing Procedural Issues Really Double?: Kroll reported that “cases addressing procedural issues more than doubled”; however, here is how they broke down the category last year: 14% of cases addressed various procedural issues such as searching protocol and cooperation, 13% of cases addressed various production considerations, and 12% of cases addressed privilege considerations and waivers.  That’s a total of 39% for three separate categories that now appear to be described as “procedural issues, such as search protocols, cooperation, production and privilege considerations” (29%).  So, it looks to me like the percentage of cases addressing procedural issues actually dropped 10%.  Actually, the two biggest category jumps appear to be discoverability and admissibility issues (2% last year to 16% this year) and TAR (0% last year to 9% this year).

So, what do you think?  Has your organization been involved in any eDiscovery opinions this year?  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.

New eDiscovery Guidelines for Northern District of California – eDiscovery Trends

The U.S. District Court for the Northern District of California has announced new Guidelines for counsel and litigants regarding the discovery of electronically stored information (“ESI”) effective as of last Tuesday (November 27). The Guidelines were developed by a bench-bar committee chaired by Magistrate Judge Elizabeth D. Laporte in partnership with the Court’s Rules Committee and unanimously approved by the entire Court.

As stated in the announcement: “Counsel and litigants should familiarize themselves with the Guidelines and immediately begin using the revised Standing Order for All Judges of the Northern District of California when preparing case management statements and the Checklist as appropriate when meeting and conferring.”

As noted in the announcement, in addition to the Standing Order noted above, the package of new ESI-related documents is comprised of:

In the announcement, Judge Laporte stated: “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure… The Court requires counsel to be familiar with these tools and confirm in the initial case management statement that they have reviewed the Guidelines regarding preservation and decided whether to enter into a stipulated order governing e-discovery, in light of the Model Stipulated Order.”

To confirm that familiarity and understanding by counsel, paragraph 6 of the Standing Order requires that all Joint Case Management Statements include:

“A brief report certifying that the parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored Information (“ESI Guidelines”), and confirming that the parties have met and conferred pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in this action.”

As noted in this blog previously, other courts, such as the Southern District of New York (pilot program) and the Eastern District of Texas (for patent cases) have implemented standards for handling ESI, at least in certain situations.

So, what do you think?  Should all District courts adopt similar standards and provide similar guidelines and checklists?  If not, why not?  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.

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review – eDiscovery Case Law

During this Thanksgiving week, we at eDiscovery Daily thought it would be a good time to catch up on some cases we missed earlier in the year.  So, we will cover a different case each day this week.  Enjoy!

In the case In re Actos (Pioglitazone) Products Liability Litigation, No. 6:11-md-2299, (W.D. La. July 27, 2012), a case management order applicable to pretrial proceedings in a multidistrict litigation consolidating eleven civil actions, the court issued comprehensive instructions for the use of technology-assisted review (“TAR”).

In an order entitled “Procedures and Protocols Governing the Production of Electronically Stored Information (“ESI”) by the Parties,” U.S. District Judge Rebecca Doherty of the Western District of Louisiana set forth how the parties would treat data sources, custodians, costs, and format of production, among others. Importantly, the order contains a “Search Methodology Proof of Concept,” which governs the parties’ usage of TAR during the search and review of ESI.

The order states that the parties “agree to meet and confer regarding the use of advanced analytics” as a “document identification mechanism for the review and production of . . . data.” The parties will meet and confer to select four key custodians whose e-mail will be used to create an initial sample set, after which three experts will train the TAR system to score every document based on relevance. To quell the fears of TAR skeptics, the court provided that both parties will collaborate to train the system, and after the TAR process is completed, the documents will not only be randomly sampled for quality control, but the defendants may also manually review documents for relevance, confidentiality, and privilege.

The governance order repeatedly emphasizes that the parties are committing to collaborating throughout the TAR process and requires that they meet and confer prior to contacting the court for a resolution.

So, what do you think?  Should more cases issue instructions like this?  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.

Judge Carter Refuses to Recuse Judge Peck in Da Silva Moore – eDiscovery Trends

It seems like ages ago when New York Magistrate Judge Andrew J. Peck denied the motion of the plaintiffs in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) to recuse himself in the case.  It was all the way back in June.  Now, District Court Judge Andrew L. Carter, Jr. has ruled on the plaintiff’s recusal request.

In his order from last Wednesday (November 7), Judge Carter stated as follows:

“On the basis of this Court’s review of the entire record, the Court is not persuaded that sufficient cause exists to warrant Magistrate Judge Peck’s disqualification…Judge Peck’s decision accepting computer-assisted review … was not influenced by bias, nor did it create any appearance of bias.”

Judge Carter also noted, “Disagreement or dissatisfaction with Magistrate Judge Peck’s ruling is not enough to succeed here…A disinterested observer fully informed of the facts in this case would find no basis for recusal”.

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.

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.  Finally, on June 15, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal, which Judge Carter has now upheld.

So, what do you think?  Will Judge Carter’s decision not to recuse Judge Peck restart the timetable for predictive coding on 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.

Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

As was the case in Mailhoit v. Home Depot previously, Ohio Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012) that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Background on Defendant’s Request

In this employment discrimination action where the plaintiff alleged that male supervisors, senior youth leaders, and coworkers sexually harassed her, the defendant filed a Motion to Compel in August to compel the plaintiff to give them her user names and passwords for each of the social media sites she uses.  The defendant contended that information on the plaintiff’s social media sites “may be relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional state”, indicating their belief that the plaintiff “is not currently impaired by serious emotional distress and is enjoying life”.

The plaintiff contended that the defendant’s discovery request was “overbroad and unduly burdensome” and that the defendant had “offered no evidence or other reason to back up” their speculation that there might be relevant information in the private sections of her social media sites.  The defendant countered that the plaintiff testified as to several impacts of the alleged sexual harassment and that she cannot regularly update her Facebook account, yet her Facebook public pages contained evidence that the plaintiff still regularly updates her account.

Judge Abel’s Ruling

Judge Abel acknowledged that “[r]elevant information in the private section of a social media account is discoverable”, but that “a litigant has no right to serve overbroad discovery requests that seek irrelevant information”.  Comparing the request of electronic social media data to that of hard copy documents, Judge Abel stated:

“The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files. Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”

Judge Abel did note that the plaintiff “remains under an obligation to preserve all the information” in her social media accounts, so the defendants would presumably be able to access that information through requests for specific relevant information.

So, what do you think?  How does this case compare to other cases (such as these three cases) where user names and passwords to social media sites were granted?  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.

Russell Taber: eDiscovery in Tennessee – eDiscovery Trends

We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI).  But, not all cases are Federal jurisdiction cases.  Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery.  One of those states is Tennessee.  Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.

Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III.  Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee.  His practice focuses on business litigation.  He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery).  Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University.  I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.

Why did you decide to write the book and what are you hoping for readers to learn from reading it?

First of all, thank you for the eDiscovery Daily Blog.  I’ve been a subscriber for some time and have benefitted from its insights.  Thank you also for taking the time for this interview.

I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues.  It begins with the premise: “The era of paper discovery in Tennessee is over.”  Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true.   Virtually all information is created electronically.  EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small.  Even so, eDiscovery can be very challenging, and the stakes can be high.  Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee.   Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.

As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009?  How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?

That’s right.   The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects.   For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue.  The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.

Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court.  Under the Tennessee rule, a judge first determines whether the ESI is subject to production.  If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.

Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?

Yes.  While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose.  In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.

Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc.  The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party.  The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.

Are there any plans to amend Tennessee rules for eDiscovery in the near future?  What do you expect to see in the eDiscovery landscape within the state over the next few years?

I’m not aware of any plans to amend the Tennessee rules for eDiscovery.  A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules).  I think there is a need for more uniformity in the eDiscovery rules in Tennessee.

We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery.  Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees.  These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.

For more information about the book, including the link on Amazon.com to purchase it, click here.

Thanks, Russell, for participating in the interview!

And to the readers, as always, 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.