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Proportionality

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law

As reported in Ralph Losey’s e-Discovery Team® blog, Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012) – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

As Ralph notes, this “appears to be the first time a judge has required both sides of a dispute to use predictive coding when neither has asked for it. It may also be the first time a judge has ordered parties to use the same vendor.”  Vice Chancellor Laster’s instruction was as follows:

“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding.  I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor.  Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information.  If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.  The problem is that these types of indemnification claims can generate a huge amount of documents.  That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”

Ralph notes that there “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”  It will be interesting to see if either, or both party, proceeds to object and attempt to “show cause” as to why they shouldn’t use predictive coding.

So, what do you think?  Is this an isolated case or the start of a trend?  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.

Proportionality Rules! (and other proportionality sources) – eDiscovery Best Practices

I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules!  Here are the highlights.

As the author notes, Rules 1, 26 and 37 each provide verbiage addressing proportionality, as follows:

  • Rule 1 states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • In Rule 26(a)(1) disclosures, a party must describe  by category and location all electronically stored information in the party’s possession, custody or control  “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”
  • Rule 26(f) mandates that the parties confer and discuss “any issues about preserving discoverable information; and develop a proposed discovery plan” that indicates the “parties’ views and proposals” concerning, inter alia, issues relating to the disclosure or discovery of ESI, form of production and assertions of privilege.
  • Rule 26(g) requires certification, based on a reasonable inquiry, that Rule 26(a) disclosures were complete and that discovery requests, responses and objections are proper, necessary and reasonable given the law, nature and stage of the case.
  • Rule 37(f) authorizes sanctions for failure to make disclosures or cooperate in discovery, including for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”

The author also recommends two publications from the The Sedona Conference®: Its Cooperation Proclamation and its Commentary on Proportionality (previously covered on this blog here and here), as well as this proportionality test white paper from the American Bar Association.  If you want case law dealing with proportionality, take a look here, here, here, here and here.  And, that’s just this year!

With 90% of the data in the world having been created in the last two years, managing eDiscovery of all that data continues to get more and more expensive.  Key to keeping those costs in check is the ability to promote proportionality, especially through the Rule 26(f) meet and confer with opposing counsel, and with the court (especially when the parties can’t agree on conducting eDiscovery more cost effectively).  The sources listed in this article provide excellent ammunition to advocate proportionality in eDiscovery with opposing counsel as well as with the court.

So, what do you think?  Have you disputed eDiscovery scope with opposing counsel in your cases?   If so, how have you addressed those disputes?  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.

EDRM Announces Several Updates at Mid-Year Meeting – eDiscovery Trends

Last week, the Electronic Discovery Reference Model (EDRM) conducted its mid-year meeting to enable the working groups to meet and further accomplishments in each of the teams for the year.  Having attended several of these meetings in the past, I’ve always found them to usually yield significant progress within the working groups, as well as providing a great opportunity for eDiscovery professionals to get together and talk shop.  Based on the results of the meeting, EDRM issued an announcement with updates from several of their more active projects.

Here are the updates:

  • Data Set: The Data Set project announced the launch of its new file upload utility. “The upload utility will allow us to develop a modern data set that more accurately represents the type of files that are commonly encountered in data processing,” said Eric Robi of Elluma Discovery, co-chair of the project with Michael Lappin of NUIX. The Data Set project also announced a soon-to-be-published “million file dataset” and an upcoming redacted version of the Enron data set, previously described on this blog here.
  • Information Governance Reference Model (IGRM): The IGRM team announced that its updated model (IGRM v3) was recently published and presented at ARMA International’s 57th Annual Conference & Expo and the IAPP Privacy Academy 2012. As discussed on this blog just a couple of weeks ago, the updated version adds privacy and security as key stakeholders in the model.
  • Jobs: The Jobs project continued development of the EDRM RACI (responsible, accountable, consulted, informed) Matrix, a tool designed to help hiring managers better understand the responsibilities associated with common e-discovery roles. RACI maps responsibilities to the EDRM framework so e-discovery duties associated can be assigned to the appropriate parties.
  • Metrics: The Metrics project team refined the EDRM Metrics database, an anonymous set of e-discovery processing metrics derived from actual matters, which will include a CSV upload function to make it easier for vendors and law firms to anonymously submit data to the system.  Having worked on the early stages of this project, my “hats off” to the team for the additional accomplishments.
  • Search: The Search group announced that its EDRM Computer Assisted Review Reference Model (CARRM) soon will be available for public comment. The goal of CARRM is to demystify the predictive coding process and to allow for a common communication platform between vendors and end-users at each phase of the CAR process and it will be interesting to see the document that emerges from these efforts.

EDRM meets in person twice a year, in May for the annual meeting and October for the mid-year meeting, with regular working group phone calls scheduled throughout the year to keep the projects progressing.  The next in person meeting is next year’s annual meeting, currently scheduled for May 7 thru 9, 2013.  For more information about EDRM, click here.  For information on joining EDRM, including fee information for participation, click here.

So, what do you think?  Have you been following the activity of EDRM?  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.

EDBP.com, A Lawyer Centric Work Flow Model for eDiscovery – eDiscovery Best Practices

Take a closer look – that’s not the EDRM model you see above.  It’s the new EDBP model.

EDBP stands for Electronic Discovery Best Practices and is the brainchild of Ralph Losey, whose e-Discovery Team® blog is one of the must-read blogs (and one of the most in-depth) in the industry.  Ralph is also National e-Discovery Counsel with the law firm of Jackson Lewis, LLP, an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery and has also previously been a thought leader interviewee on this blog.  Other than all that, he’s not very busy.

As Ralph describes on his blog, “EDBP is a new reference of legal best practices for practicing attorneys and paralegals.  It is also an open project where other specialists in the field are invited to make contributions.”  He also notes that “The ten-step diagram…serves as the basic structure of the tasks performed by attorneys in electronic discovery practice. This structure may also change with time to keep up with evolving attorney practices.”

According to the EDBP site (ironically at EDBP.com), the stated mission is as follows:

“The purpose of EDBP is to provide a model of best practices for use by law firms and corporate law departments. EDBP is designed to be an educational resource for all lawyers striving to stay current with the latest thinking on excellence in legal services in electronic discovery law.”

Other notable aspects about EDBP:

  • It’s lawyer-centric, designed to address legal services, not the work of vendors.  As a result, it’s different in scope from EDRM, which covers non-legal service activities as well.  “The EDBP chart will focus solely on legal practice and legal services. It will be by and for lawyers only and the paralegals who assist their legal services”.
  • It does not address minimum standards for legal services, but instead “embodies an evolving understanding of excellence in legal services”.  In other words, if it were a final exam, you’re expected to ace the exam, not just get a passing grade.

The EDBP site also provides linked detailed write ups of each of the color coded sections, entitled Pre-Suit (gray), Preservation (blue), Cooperation (red), C.A.R. (green), Productions (yellow) and Evidence (turquoise?).  The sections include links to resources of information, such as The Sedona Conference® (including flowcharts) and case cites, as well as references to Federal Rules.

On his blog, Losey says “I am writing the beginning statements of best practices (about half-way through) and will serve as the first editor and gate-keeper for future contributions from others.”  The site also provides a place to provide your email address to subscribe to updates and a comments section to leave a comment for suggestions on how to improve EDBP.  It will be interesting to see how this site evolves – it promises to be an invaluable resource for eDiscovery best practices for lawyers and other legal services personnel.

So, what do you think?  Do you think EDBP will be a useful resource?  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.

Home Depot’s “Extremely Broad” Request for Social Media Posts Denied – eDiscovery Case Law
 

In Mailhoit v. Home Depot, CV 11 03892 DOC (SSx) (C.D. Cal.; Sept. 7, 2012), Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Case Background

The plaintiff had been a manager of the defendant's store in Burbank, California, and filed a suit against her employer after being fired, charging unlawful discrimination based on gender, as well as failure to accommodate her known physical disability.  The plaintiff testified at her deposition that she suffers from post traumatic stress disorder, depression and isolation, and has cut herself off from communication with friends because of Defendant’s alleged wrongdoing.  The defendant argued “that it is entitled to Plaintiff’s communications posted on social networking sites (“SNS”) such as Facebook and LinkedIn to test Plaintiff’s claims about her mental and emotional state.”

Defendant’s Motion to Compel

The defendant filed a Motion to Compel Further Responses to Defendant’s Request for Production of Documents, which included a request for (among other things):

“Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005(the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state”.

The defendant also requested “[t]hird-party communications to Plaintiff that place her own communications in context”, “[a]ll social networking communications between Plaintiff and any current or former Home Depot employees” and any pictures posted to the plaintiff’s profile or otherwise linked via tagging.

Judge Rules against Defendant in Three of Four Categories

Judge Segal noted that “while a party may conduct discovery concerning another party’s emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.  A court can limit discovery if it determines, among other things, that the discovery is…unreasonably cumulative or duplicative”.  Since Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity”, Judge Segal ruled that “three of the four categories of SNS communications sought by Defendant fail Rule 34(b)(1)(A)’s ‘reasonable particularity’ requirement”, only granting the defendant’s request for social networking communications between Plaintiff and any current or former Home Depot employees.

So, what do you think?  Should the defendant’s requests have been denied, or were they “unreasonably cumulative”?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to the Ride the Lightning blog for the tip on this case!

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 Should Pay for Extensive Discovery Prior to Class Certification – eDiscovery Case Law
 

Have you ever joined a health club, then later tried to cancel your membership?  Did the health club make it easy to do so?  If not, then this case is for you.

In Boeynaems v. LA Fitness International, LLC, No. 10-2326, 2012 U.S. Dist. (E.D. Pa. Aug. 16, 2012), 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.”

This case emerged from two separate claims filed by plaintiffs who claimed they “encountered deception and breaches concerning their desire to terminate their membership” with the national gym chain LA Fitness. The two cases were consolidated, and the plaintiffs were seeking class certification so that other plaintiffs could join the suit.

After recounting the discovery history between the parties, Judge Baylson noted that this case arose because of an unresolved dispute, including who should bear the cost of continued discovery. To produce ESI requested by the plaintiffs, LA Fitness approximated it would cost the company hundreds of thousands of additional dollars. LA Fitness had already incurred expenses for discovery tasks previously undertaken, including the review of thousands of e-mails, review of “(1) over 500,000 Member Notes from five states for 30 months looking for certain terms, (2) over 1,000 boxes of cancellation requests, of which Plaintiffs reviewed only 70 boxes, (3) over 19,000 pages of documents, and (4) an electronic search of over 32,000 e-mails, maintained by five custodians.” Moreover, LA Fitness asserted that its review of “a sampling of these Member Notes has exhibited only an extremely small proportion with any evidence probative of Plaintiffs’ claims.”

Judge Baylson pointed out that as a result of the extensive review already undertaken by LA Fitness, the plaintiffs had already “already amassed, mostly at Defendant’s expense, a very large set of documents that may be probative as to the class action issue.” In fairness, Judge Baylson concluded that the costs should now shift to the plaintiffs: “In other words, given the large amount of information defendant has already provided, plaintiffs need to assess the value of additional discovery for their class action motion. If plaintiffs conclude that additional discovery is not only relevant, but important to proving that a class should be certified, then plaintiffs should pay for that additional discovery from this date forward, at least until the class action determination is made.” Also, “if the plaintiffs have confidence in their contention that the court should certify the class, then the plaintiffs should have no objection to making an investment.” Moreover, Judge Baylson noted its counsel could afford the investment, as the plaintiffs were represented by “the very successful and well-regarded Philadelphia firm of Berger & Montague. . . . If the Berger & Montague firm believes that this case is meritorious, it has the financial ability to make the investment in discovery.”

Therefore, for production of any requested documents going forward, the plaintiffs were found to have the responsibility for bearing the costs.

So, what do you think?  Should the plaintiffs pay for additional discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

eDiscovery Case Law: Google Awarded $1 Million from Oracle, But Denied Discovery Costs
 

As noted in SiliconBeat and ARN, Judge William Alsup ordered Oracle on Tuesday 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.

Claims Against Google Dismissed Despite Inadvertent Disclosure

As you may recall, claims against Google that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language were dismissed by Judge Alsup back on May 31.  The claims were dismissed despite a significant inadvertent disclosure of information during discovery by Google, where drafts of a privileged email were not caught by Google’s search technology since they didn’t include the words “Attorney Work Product”, nor were they yet addressed to in-house counsel.  Judge Alsup ruled late last year that the draft emails were not privileged and the Federal Circuit court upheld that ruling.  However, these rulings did not ultimately cost Google as Oracle’s claims were dismissed.  As Judge Alsup noted, “Oracle initially sought six billion dollars in damages and injunctive relief but recovered nothing after nearly two years of litigation and six weeks of trial.”  Oracle plans to appeal.

Google Seeks Recovery of Costs

As the prevailing party, Google was able to seek recovery of costs and did so, seeking nearly $4 million from Oracle.  As noted above, Judge Alsup awarded Google $1 million as reimbursement for Google’s fees for a court-appointed expert.  However, Judge Alsup rejected Google's request that Oracle also pay $2.9 million for discovery-related costs, calling the search giant's arguments "unpersuasive".

“The problem with Google's e-discovery bill of costs is that many of [the] item-line descriptions seemingly bill for 'intellectual effort' such as organizing, searching, and analyzing the discovery documents," Judge Alsup stated in the ruling. "Most egregious are attempts to bill costs for 'conferencing,' 'prepare for and participate in kickoff call,' and communications with co-workers, other vendors, and clients. These are non-taxable intellectual efforts.”

So, what do you think?  Should Google have been reimbursed more?  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.

eDiscovery Trends: Florida Supreme Court Adopts New eDiscovery Rule Amendments

As we discussed last October, the state of Florida has been working to adopt new rules regarding handling of eDiscovery.  Earlier this summer, the Supreme Court of Florida approved eDiscovery rule amendments that were proposed by the Florida Bar’s Civil Procedure Rules Standing Committee. The amendments to address Electronically Stored Information (ESI) generally follow the 2006 amendments to the Federal Rules of Civil Procedure, are entirely contained within existing Rules 1.200, 1.201, 1.280, 1.340, 1.350, 1.380 and 1.410 of the Florida Rules of Civil Procedure and went into effect this past Saturday, September 1.

Here is a summary of the rules changes related to eDiscovery and handling of ESI:

  • Rule 1.200 (Pretrial Procedure): Amended to allow the trial court to consider various issues (such as the possibility of obtaining admissions of fact, the voluntary exchange of documents and ESI, and stipulations regarding the authenticity of documents and ESI) related to eDiscovery during a pretrial conference.
  • Rule 1.201 (Complex Litigation): Amended to require the parties in a complex civil case to explore the possibility of reaching an agreement regarding preservation and the form of production of ESI prior to the start of discovery.
  • Rule 1.280 (General Provisions Governing Discovery): Amended to now expressly allow for the discovery of ESI.  The amendments also add a new subsection (d) which limits eDiscovery for ESI that is not reasonably accessible or overly burdensome or expensive and allows for the court to order the requesting party to bear some or all of the expenses of complying with the discovery request.
  • Rule 1.340 (Interrogatories to Parties): Amended to expressly allow for the production of electronically stored information as both an answer to an Interrogatory or Response to a Request to Produce (in the form in which it is ordinarily maintained or in a reasonably usable form).
  • Rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection of Other Purposes): Like Rule 1.340, it has been amended to expressly allow for the production of electronically stored information as both an answer to an Interrogatory or Response to a Request to Produce (in the form in which it is ordinarily maintained or in a reasonably usable form).
  • Rule 1.380 (Failure to Make Discovery; Sanctions): Amended to require that, absent exceptional circumstances, the court is not permitted to impose sanctions on a party for failing to provide ESI if it was lost as a result of the routine good faith operation of the electronic information system.
  • Rule 1.410 (Subpoena): Amended to allow ESI to be requested via subpoena.  Like Rule 1.280, it limits eDiscovery for ESI that is not reasonably accessible or overly burdensome or expensive and allows for the court to order the requesting party to bear some or all of the expenses of complying with the discovery request.

So, what do you think?  Where does your state stand in adopting rules for handling eDiscovery?  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.

eDiscovery Best Practices: Assessing Your Data Before Meet and Confer Shouldn’t Be Expensive
 

So, you’re facing litigation and you need help from an outside provider to “get your ducks in a row” to understand how much data you have, how many documents have hits on key terms and estimate the costs to process, review and produce the data so that you’re in the best position to negotiate appropriate terms at the Rule 26(f) conference (aka, meet and confer).  But, how much does it cost to do all that?  It shouldn’t be expensive.  In fact, it could even be free.

Metadata Inventory

Once you’ve collected data from your custodians, it’s important to understand how much data you have for each custodian and how much data is stored on each media collected.  You should also be able to break the collection down by file type and by date range.  A provider should be able to process the data and provide a metadata inventory of the collected electronically stored information (ESI) that enables the inventory to be queried by:

  • Data source (hard drive, folder, or custodian)
  • Folder names and sizes
  • File names and sizes
  • Volume by file type
  • Date created and last date modified

When this done prior to the Rule 26(f) conference, it enables your legal team to intelligently negotiate at the conference by understanding the potential volume (and therefore potential cost) of including or excluding certain custodians, document types, or date ranges in the discovery order. 

Word Index of the Collection

Want to get a sense of how many documents mention each of the key players in the case?  Or, how many mention the key issues?  After a simple index of the data, a provider should be able to at least provide a consolidated report of all the words (not including stop words, of course), from all sources that includes number of occurrences for each word in the collected ESI (at least for files that contain embedded text).  This initial index won’t catch everything – image-only files and exception (e.g., corrupted or password protected) files won’t be included – but it will enable your legal team to intelligently negotiate at the meet and confer by understanding the potential volume (and therefore potential cost) of including or excluding certain key words in the discovery order.

eDiscovery Budget Worksheet

Loading the metadata inventory into an eDiscovery budget worksheet that includes standard performance data (such as document review production statistics) and projected billing rates and costs can provide a working eDiscovery project budget projection for the case.  This projection can enable your legal team to advise their client of projected costs of the case, negotiate cost sharing or cost burden arguments in the meet and confer, and create a better discovery production strategy.

It shouldn’t be expensive to prepare these items to develop an initial assessment of the case to prepare for the Rule 26(f) conference.  In fact, the company that I work for, CloudNine Discovery, provides these services for free.  But, regardless who you use, it’s important to assess your data before the meet and confer to enable your legal team to understand the potential costs and risks associated with the case and negotiate the best possible approach for your client.

So, what do you think?  What analysis and data assessment do you perform prior to the meet and confer?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S.: No ducks were harmed in the making of this blog post.

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

eDiscovery History: Zubulake’s e-Discovery
 

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law.  When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly.  A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

Laura A. Zubulake, the plaintiff in the Zubulake vs. UBS Warburg case, has written a new book: Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  It is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.

Zubulake begins the story by developing an understanding of the Wall Street setting of her employer within which she worked for over twenty years and the growing importance of email in communications within that work environment.  It continues through a timeline of the allegations and the evidence that supported those allegations leading up to her filing of a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and her subsequent dismissal from the firm.  This Allegations & Evidence chapter is particularly enlightening to those who may be familiar with the landmark opinions but not the underlying evidence and how that evidence to prove her case came together through the various productions (including the court-ordered productions from backup tapes).  The story continues through the filing of the case and the beginning of the discovery process and proceeds through the events leading up to each of the landmark opinions (with a separate chapter devoted each to Zubulake I, III, IV and V), then subsequently through trial, the jury verdict and the final resolution of the case.

Throughout the book, Zubulake relays her experiences, successes, mistakes, thought processes and feelings during the events and the difficulties and isolation of being an individual plaintiff in a three-year litigation process.  She also weighs in on the significance of each of the opinions, including one ruling by Judge Shira Scheindlin that may not have had as much impact on the outcome as you might think.  For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won.  Everybody loves a good “David versus Goliath story”, right?

The book is available at Amazon and also at CreateSpace.  Look for my interview with Laura regarding the book in this blog next week.

So, what do you think?  Are you familiar with the Zubulake opinions?  Have you read the book?  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.