Proportionality

eDiscovery Case Law: KPMG Denied in Request for “Proportionality Test” to Preservation

In Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), (S.D.N.Y. Oct. 7, 2011), defendant’s request for a protective order allowing it to maintain only a random sample of 100 hard drives from 2,500 laptops or to require plaintiffs to bear the cost of maintaining 2,500 hard drives was denied.

It was not shown that information on the hard drives was duplicative, and it was too early in the litigation to know whether the cost of maintaining the hard drives was proportional to plaintiffs’ potential recovery. In an action concerning whether accountants should be considered exempt employees under the Fair Labor Standards Act, defendant sought an order allowing it to preserve only a random sample of 100 hard drives from laptops of former and departing accountant employees. Defendant already was preserving almost 2,500 such hard drives at a cost of $1.5 million. As an alternative, defendant sought an order requiring plaintiffs to bear the cost of maintaining more than 100 of the hard drives.

Plaintiffs were willing to use sampling to lessen the number of hard drives but contended that a random sample of the hard drives would not be a meaningful sample. Plaintiffs also contended that keyword searching of the random samples suggested by defendant was outmoded and not likely to cull out information sought by plaintiffs, including work product and hours worked by defendant’s accountant associates. Plaintiffs sought an order requiring production of five of the hard drives for inspection so that the parties could negotiate a resolution to the hard drive preservation issue. The court denied defendant’s motion for a protective order and directed defendant to preserve hard drives of members of the New York class that plaintiffs sought to represent.

While the court considered defendant’s preservation efforts “comprehensive,” it did not appear that other information being preserved duplicated information on the hard drives. Also, the cost of preserving the hard drives could be substantial but it was too early to know whether that cost would be proportional to the value of the litigation. The court added that courts in the Southern District of New York “have cautioned against the application of a proportionality test as it relates to preservation.” While the court would not order defendant to provide plaintiffs with five sample hard drives, it encouraged the parties to seek agreement on sampling pending a ruling on class certification and a lifting of the stay of discovery in the action.

So, what do you think?  Do proportionality and preservation mix?  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 Trends: Opinions…Everybody Has One

 

With the number of presidential candidacy polls already being conducted with over a year(!) before the 2012 presidential election, it’s no surprise that just about everyone is willing to express an opinion on just about anything.  With that in mind, one of the best eDiscovery blogs out there, Ralph Losey’s e-Discovery Team blog, is currently conducting a confidential poll of its readers related to various eDiscovery topics.

Using Polldaddy.com, Ralph asks questions related to various eDiscovery topics, including confidentiality orders, privacy rights, eDiscovery certification and new Federal Rules for eDiscovery.  He even asks a polling question of his readers as to whether they like these polls!  Amazingly, 13 people (10.48%) so far have responded ‘no’ to that question, which makes me wonder why they would take the time to respond when they don’t like polls?  Hmmm…  😉

Each of the polling questions not only provides a button to vote, but also provides a link to view results.  If there’s an end date to the poll at some point, Ralph doesn’t indicate one, so it appears that the ‘polls’ are open indefinitely.  The questions each have ‘yes’ and ‘no’ selections, along with an ‘other’ (with space to put in a comment and usually a fourth qualifying option (for example, question #2 below provides a choice for ‘Most of the time, but not always’).

I don’t want to “steal anyone’s thunder” and report current results, but you can use the link above to check out current results for each of the questions.  I will say that it appears that most of the questions have at least 100 responses so far, with some having a clear majority opinion and others being much more evenly distributed in responses.  Here are the questions Ralph asks in his blog post (excepting the aforementioned question about liking polls):

  1. Should courts routinely enter umbrella confidentiality protective orders during the discovery phase of the case?
  2. Should the public have a right to see all information filed with a court?
  3. Should all information accepted into evidence in a trial be disclosed to the public?
  4. Should Plaintiffs in civil suits have a right to protect from public disclosure any of their confidential information that is directly relevant to their case?
  5. Should Defendants in civil suits have a right to protect from public disclosure their confidential information that is directly relevant to the case?
  6. Should corporations have the same privacy rights as individuals?
  7. Is lack of privacy a problem in the United States?
  8. Are you concerned about your employer's right to read your email?
  9. Would you like stronger U.S. privacy laws where no one can read your email and other personal communications without your permission? (multiple answers allowed)
  10. Would you like to see privacy protection on the Internet strengthened?
  11. Do you agree with Patrick Oot? (and his criticism of eDiscovery certification programs)
  12. Do you think there is a need for certification of expertise in the field of electronic discovery?*
  13. Do you think there is a need for extensive training programs in e-discovery law?
  14. Do we need to amend the Federal Rules of Civil Procedure again soon to address e-discovery issues?
  15. Do we need to amend the FRCP to add one or more new rules on preservation?
  16. Should the rules be amended to limit the scope of relevancy in discovery?

*I have a ‘bone to pick’ with one of the potential responses to question 12 (Yes, but only State Bar Associations should do it) as it implies that the only people who need certification are attorneys and other legal practitioners, when technologists and consultants need it too.

I encourage you to check out the post, vote and view current results.  Even if you don’t like polls.  😉

So, what do you think?  Can we learn anything from polls like this?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

 

A recent article in Texas Lawyer discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. As noted at the 2011 Eastern District of Texas Bench Bar Conference in Irving last week, the "Model Order on E-Discovery in Patent Cases" was unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in patent cases.

What's Wrong with eDiscovery Now?

In his speech at the 2011 Eastern District of Texas Bench Bar Conference, "Thoughts on the Status and Direction of Patent Litigation in the United States," Judge Rader accuses the courts of becoming “intolerantly expensive”, forcing “accused infringers to acquiesce to non-meritorious claims” therefore imposing “an unhealthy tax on innovation and open competition”.  He compared the model order to the current Federal Rule of Civil Procedure 30, which limits cases to 10 depositions of 7 hours or fewer.

Rader said "the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses." Hence, the proposed model order to save the participants in these cases time and money.

Model Order Proposes Limits on eDiscovery

Rader's model order would create several limits on the production of electronically stored information in patent cases, including:

  • Exclusion of metadata from eDiscovery production requests without "good cause";
  • Restrictions on email production requests to specific issues and “not general discovery of a product or business”;
  • Delaying of email production requests until after disclosures about the patents, the accused uses of the invention, relevant financial information and the prior art;
  • A maximum of five custodians per party in email requests, and only five search terms each, unless courts specifically allow in excess of that number (if litigants submit requests that exceed those court orders, they must pay for the extra production);
  • Receiving parties cannot use materials asserted by producing parties as attorney-client or work product privileged;
  • Prohibitions on the use of privileged information produced as part of a mass production or other inadvertent release.

For more information about this model order and its implications, see Model Order Would Limit E-Discovery in Patent Cases.

So, what do you think?  Will the model order “catch on” as a way to limit the eDiscovery possible in patent cases?  Will other jurisdictions adopt the model order? Please share any comments you might have or if you'd like to know more about a particular topic.