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Proportionality

Apple Recovers Part, But Not All, of its Requested eDiscovery Costs from Samsung – eDiscovery Case Law

Apple won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”, but ultimately may have lost the war when the court refused to ban Samsung from selling products that were found to have infringed on Apple products.  Now, they’re fighting over relative chicken-feed in terms of a few million that Apple sought to recover in eDiscovery costs.

On December 5, 2013, Apple submitted its Bill of Costs seeking a total of over $6.2 million in three categories of taxable costs: “printed or electronically recorded transcripts;” “exemplification and the costs of making copies;” and “[c]ompensation of interpreters.” Samsung filed objections on January 24 of this year. Apple then filed an Amended Bill of Costs on February 6, 2014, waiving and withdrawing certain costs, including the costs related to its sanctions motion against Samsung. Apple’s Amended Bill of Costs sought a total of nearly $5.9 million in costs (of which, nearly $1.5 million related to eDiscovery costs).  Yet, on February 20, Samsung again filed objections.

On June 6, the Clerk taxed costs in the amount of $2,064,940.55, disallowing: $193,884.17 in transcript costs $3,346,652.74 in costs for exemplification and copies and $282,500 in compensation of interpreters.  Both parties sought judicial review of the Clerk’s assessment with Apple requesting that the Court increase the costs award to the full amount requested in their Amended Bill of Costs and Samsung making multiple arguments against the assessment of costs, including the fact that they were appealing the award, Apple only received a partial recovery and that millions of dollars requested were either untaxable or unjustified.

California District Judge Lucy H. Koh found that there was “no basis to defer a decision on the bill of costs pending Samsung’s appeal” and also concluded that Apple is the prevailing party because “[t]he large jury damages award in favor of Apple clearly “materially alter[ed] the legal relationship between the parties” in this case. Moreover, Samsung did not prevail on any of its counterclaims.”

With regard to the eDiscovery costs, Samsung argued that 1) Apple failed to prove that these costs were the functional equivalent of making copies and not costs for intellectual effect, 2) Apple’s documentation failed to prove whether the costs requested are tied to documents actually produced to Samsung and 3) Apple’s “extremely high per page e-discovery rate is excessive and therefore impermissible.”

Judge Koh focused in on the second argument, stating that “it is somewhat unclear from Apple’s documentation of its e-discovery costs whether and to what extent Apple’s claimed costs cover only the costs of documents produced to Samsung. However, in the briefing on the parties’ Cross-Motions, Apple acknowledges that many of its claimed e-discovery costs relate to documents not produced to Samsung.”  As a result, she ruled that “Using Apple’s own figures, Apple estimates that it uploaded a total of 18,264,712 pages of which 2,944,467 pages were ultimately produced…Based on this, the Court calculates that approximately 16.12% of Apple’s e-discovery costs were spent on documents produced to Samsung. The Court will therefore award Apple e-discovery costs in the amount of $238,102.66.” [emphasis added]

The awarded eDiscovery costs were part of an overall award to Apple of nearly $1.9 million.

So, what do you think?  Should the eDiscovery portion of the award have been limited to documents Apple produced?  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.

Survey of Corporate Counsel Finds that there is Much Room for Improvement in Handling eDiscovery – eDiscovery Trends

Yesterday, we discussed a new self-assessment test that enables organizations to measure their eDiscovery “maturity”.  Today, we look at a new survey of corporate counsel from BDO Consulting that shows that they feel there is substantial room for improvement when evaluating their organizations’ effectiveness in managing eDiscovery.

According to BDO’s press release promoting their inaugural Inside E-Discovery Survey by BDO Consulting, corporate counsel give their internal and external resources a grade of 6.5 out of 10 for overall effectiveness in handling and managing their eDiscovery.  The survey was completed by 100 senior in-house counsel and is scheduled to be released in late October.

Here are the top critical factors identified by in-house legal professionals as impacting their eDiscovery process:

  • Nearly half (48.4 percent) of respondents ranked understanding the universe of potentially responsive evidence early in the case as the most critical factor, more than three times as much as the next ranked factor;
  • 15.6 percent of respondents ranked predicting the total cost of eDiscovery as the most critical factor;
  • 14.1 percent of respondents ranked reducing eDiscovery review fees as the most important factor; and
  • 12.5 percent of respondents reported the ability to use previously collected and processed electronically stored information (ESI) for other matters as the most important factor, pointing to a desire among corporate counsel to achieve efficiencies by reusing prior work product.

When it comes to selecting eDiscovery providers, quality of provider (47.6 percent of respondents) is twice as important as cost (23.8 percent) as the most important factor for provider selection.

Other findings:

  • Response to Challenges: To respond to the increasing challenges of eDiscovery, 31.4 percent of respondents reported implementing new guidelines or policies within the past year to streamline and improve their response to litigation. Just over one in four (25.5 percent) say they have adopted tools and technologies, while 15.7 percent say they have hired an outside vendor.
  • Top eDiscovery Challenges Going Forward: When asked about key forward-looking challenges with regards to eDiscovery management, the largest percentage of in-house counsel (22.5 percent) say managing mobile and social networking data is the number one issue they will face in the near future, followed by cost control (17.5 percent), new regulations (15 percent) and automating processes (12.5 percent).
  • Few Organizations are Ahead of the Curve: Only 5.4 percent of respondents identify their organization as an “early adopter” when it comes to its willingness to adopt new tools and technologies. In addition, only 17.6 percent currently use customized customer portals to view and track project statistics and only 16.2 percent use data visualization techniques to assist in priority processing or review.
  • Spending on the Rise: 43.2 percent of corporate counsel respondents predict eDiscovery spend will increase within the next year, while a mere 6.2 percent expect it to decrease.

An infographic of the survey results is available from BDO Consulting here.

So, what do you think?  Do any of these results surprise you?  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 Rules to Limit Scope of Discovery, Noting that “Searching for ESI is only one discovery tool” – eDiscovery Case Law

In United States v. Univ. of Neb. at Kearney, 4:11CV3209 (D. Neb. Aug. 25, 2014), Nebraska Magistrate Judge Cheryl R. Zwart denied the government’s motion to compel discovery, finding that “ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks” and stating that searching for ESI “should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions”.

This Fair Housing Act case involved a case brought about by the government with claims that students were prohibited or hindered from having “emotional assistance animals in university housing when such animals were needed to accommodate the requesting students’ mental disabilities.  Discovery has been a lengthy and disputed process since the parties filed a Stipulation and Order Regarding Discovery back in March of 2012.

The scope of ESI was a major part of the dispute. The defendants objected that the government’s search parameters were too expansive, and the cost of compliance would be unduly burdensome. The defendants explained that the cost of retrieval, review, and production would approach a million dollars, and provided an outline identifying the document “hits” and the estimated discovery costs.  The government served revised search terms on April 14, 2014. Although narrowed, the government’s search terms would still yield 51,131 responsive documents, and based on the defendants’ estimate, would require the defendants to expend an additional $155,574 to retrieve, review, and produce the responsive ESI.

To date, the defendants had paid $122,006 to third-party vendors for processing the government’s ESI requests and proposed the requests be narrowed to the “housing” or “residential” context. The defendants’ search terms would yield 10,997 responsive documents.  The Government did not want to limit the scope of discovery and recommended producing all the ESI subject to a clawback agreement for the Government to search the ESI. The Defendants argued such an agreement would violate the Family Educational Rights and Privacy Act by disclosing student personal identifiable information without their notice and consent.

The court had ordered the parties to provide answers to specific questions regarding their efforts at resolving ESI as part of any motion to compel filed. The government’s responsive statement does not include information comparing the cost of its proposed document retrieval method and amount at issue in the case, any cost/benefit analysis of the discovery methods proposed, or a statement of who should bear those costs.

Judge Zwart stated that she “will not order the university to produce ESI without first reviewing the disclosure, even with the protection afforded under a clawback order. And if UNK must review the more than 51,000 documents requested by the government’s proposed ESI requests, the cost in both dollars and time exceeds the value to be gained by the government’s request.”

Illustrating the lack of proportionality in the government’s requests, Judge Zwart stated “Searching for ESI is only one discovery tool. It should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery is complete. For example, the government proposes search terms such as ‘document* w/25 policy.’ The broadly used words “document” and “policy” will no doubt retrieve documents the government wants to see, along with thousands of documents that have no bearing on this case. And to what end? Through other discovery means, the government has already received copies of UNK’s policies for the claims at issue.”

As a result, Judge Zwart stated that “the court is convinced ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks. Standard document production requests, interrogatories, and depositions should suffice—and with far less cost and delay.”

So, what do you think?  Were the government’s requests overbroad or should they have been granted their motion to compel?  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.

How Much Will it Cost? – eDiscovery Best Practices

By far, the most important (and, therefore, the most asked) question asked of eDiscovery providers is “How much will it cost?”.  Actually, you should be asking a few questions to get that answer – if they are the right questions, you can actually get the answer you seek.

With these questions, you can hopefully prevent surprises and predict and control costs:

  • What is the Unit Price for Each Service?: It’s important to make sure that you have a clear understanding of every unit price the eDiscovery provider includes in an estimate.  Some services may be charged per-page or per-document, while others may be charged per gigabyte, and others may be charged on an hourly basis.  It’s important to understand how each service is being charged and ensure that the price model makes sense.
  • Are the Gigabytes Counted as Original or Expanded Gigabytes?: For the per gigabyte services, it’s also important to make sure that you whether they are billed on the original GBs or the expanded GBs.  Expanded GBs can be two to three times as large (or more) as the original GBs.  Some services are typically billed on the original GBs (or at least the unzipped GBs) while others are typically billed on the expanded GBs.  It’s important to know which metric is used; otherwise, your ESI collection may be larger than you think and you may be in for a surprise when the bill comes.
  • Will I Get an Estimate in Advance for Hourly Billed Services?: When you ask for specific hourly billed services from the provider (such as professional consulting or technician services) to complete a specific task, it’s important to get an estimate to complete that task as well as advanced notification if the task will require more time than estimated.
  • What Incidental Costs are Billed?: It’s not uncommon (or unreasonable) for incidentals like project management, supplies and shipping to be included in invoices.  In particular, project management services can be an important component to the services provided by the eDiscovery provider.  But, the rates charged for these incidentals can vary widely.  Understanding what incidentals are being billed and the rates for those services is important to controlling costs.
  • If Prices are Subject to Change, What is the Policy for Those Changes and Notification of Clients?: Let’s face it, prices do change, even in the eDiscovery industry.  In ongoing contracts, most eDiscovery providers will retain the right to change prices to reflect the cost of doing business (whether they exercise those rights or not).  It’s important to know the terms that your provider has set for the ability to change prices, what the notification policy is for those price changes and what your options are if the provider exercises that right.

With the right questions and a good understanding of your project parameters, you can get to the answer to that elusive question “How much will it cost?”.

So, what do you think?  How do you manage costs with your eDiscovery providers?  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.

Though it was “Switching Horses in Midstream”, Court Approves Plaintiff’s Predictive Coding Plan – eDiscovery Case Law

In Bridgestone Americas Inc. v. Int’l Bus. Mach. Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014), Tennessee Magistrate Judge Joe B. Brown, acknowledging that he was “allowing Plaintiff to switch horses in midstream”, nonetheless ruled that that the plaintiff could use predictive coding to search documents for discovery, even though keyword search had already been performed.

In this case where the plaintiff sued the defendant for a $75 million computer system that it claimed threw its “entire business operation into chaos”, the plaintiff requested that the court allow the use of predictive coding in reviewing over two million documents.  The defendant objected, noting that the request was an unwarranted change to the original case management order that did not include predictive coding, and that it would be unfair to use predictive coding after an initial screening had been done with keyword search terms.

Judge Brown conducted a lengthy telephone conference with the parties on June 25 and, began the analysis in his order by observing that “[p]redictive coding is a rapidly developing field in which the Sedona Conference has devoted a good deal of time and effort to, and has provided various best practices suggestions”, also noting that “Magistrate Judge Peck has written an excellent article on the subject and has issued opinions concerning predictive coding.”  “In the final analysis”, Judge Brown continued, “the uses of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible.”

As a result, noting that “we are talking about millions of documents to be reviewed with costs likewise in the millions”, Judge Brown permitted the plaintiff “to use predictive coding on the documents that they have presently identified, based on the search terms Defendant provided.”  Judge Brown acknowledged that he was “allowing Plaintiff to switch horses in midstream”, so “openness and transparency in what Plaintiff is doing will be of critical importance.”

This case has similar circumstances to Progressive Cas. Ins. Co. v. Delaney, where that plaintiff also desired to shift from the agreed upon discovery methodology for privilege review to a predictive coding methodology.  However, in that case, the plaintiff did not consult with either the court or the requesting party regarding their intentions to change review methodology and the plaintiff’s lack of transparency and lack of cooperation resulted in the plaintiff being ordered to produce documents according to the agreed upon methodology.  It pays to cooperate!

So, what do you think?  Should the plaintiff have been allowed to shift from the agreed upon methodology or did the volume of the collection warrant the switch?  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.

Our 1,000th Post! – eDiscovery Milestones

When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis.  Now, after doing so each business day (except for one), I’m happy to announce that today is our 1,000th post on eDiscovery Daily!

We’ve covered the gamut in eDiscovery, from case law to industry trends to best practices.  Here are some of the categories that we’ve covered and the number of posts (to date) for each:

We’ve also covered every phase of the EDRM (177) life cycle, including:

Every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 474%!  Our subscriber base has more than tripled in the last three years!  We want to take this time to thank you, our readers and subcribers, for making that happen.  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan University, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

I also want to extend a special thanks to Jane Gennarelli, who has provided some serial topics, ranging from project management to coordinating review teams to what litigation support and discovery used to be like back in the 80’s (to which some of us “old timers” can relate).  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 999 previous posts.  Now is your chance to catch up!  😉

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 Sides with Defendant in Dispute over Predictive Coding that Plaintiff Requested – eDiscovery Case Law

In the case In re Bridgepoint Educ., Inc., Securities Litigation, 12cv1737 JM (JLB) (S.D. Cal. Aug. 6, 2014), California Magistrate Judge Jill L. Burkhardt ruled that expanding the scope of discovery by nine months was unduly burdensome, despite the plaintiff’s request for the defendant to use predictive coding to fulfill its discovery obligation and also approved the defendants’ method of using search terms to identify responsive documents for the already reviewed three individual defendants, directing the parties to meet and confer regarding the additional search terms the plaintiffs requested.

In this case involving several discovery disputes, a telephonic discovery conference was held in the instant action on June 27, during which, the Court issued oral orders on three of four discovery disputes.  As to the remaining dispute, the Court requested supplemental briefings from both parties and issued a ruling in this order, along with formalizing the remaining orders.

The unresolved discovery dispute concerned the plaintiffs’ “request for discovery extending beyond the time frame that Defendants have agreed to” for an additional nine months.  In their briefing, the defendants (based on the production efforts to date) claimed that expanding the scope of discovery by nine months would increase their review costs by 26% or $390,000.  The plaintiffs’ reply brief argued that the defendants’ estimate reflected the cost of manual review rather than the predictive coding system that the defendants would use – according to the plaintiffs, the cost of predictive coding was the only cost relevant to the defendants’ burden, estimating the additional burden to be roughly $11,279.

Per the Court’s request, the defendants submitted a reply brief addressing the arguments raised by the plaintiffs, arguing that predictive coding software “does not make manual review for relevance merely elective”.  The defendants argued that the software only assigns a percentage estimate to each document that reflects the assessment of the probability that the document is relevant, but the software is not foolproof and that attorney review is still required to ensure that the documents produced are both relevant and not privileged.

Judge Burkhardt, citing the “proportionality” rule of Federal Rule of Civil Procedure Rule 26(b)(2)(C), denied expanding the scope of discovery by nine months, finding that “Defendants have set forth sufficient evidence to conclude that the additional production would be unduly burdensome”.

The plaintiffs, claiming that the defendants “unilaterally-selected search terms” to identify the original production, also argued discovery produced from three Individual Defendants should be added to the Defendants’ predictive coding software.  But, Judge Burkhardt, formalizing the oral order, stated “[t]he Court approved Defendants’ method of using linear screening with the aid of search terms to identify responsive documents with regard to the emails already reviewed for the three Individual Defendants. The parties were directed to meet and confer regarding the additional search terms Plaintiffs would like Defendants to use.”

So, what do you think?  Was the additional discovery scope unduly burdensome or did the plaintiff have a point about reduced discovery costs?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume posts on Tuesday.  Happy Labor Day!

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 Orders Sharing of Costs for Forensic Examination of Plaintiff’s Emails – eDiscovery Case Law

In Zeller v. So. Central Emergency Med. Servs. Inc., 1:13-CV-2584 (M.D. Pa. May 20, 2014), Pennsylvania Magistrate Judge Karoline Mehalchick used the Zubulake seven factor test to rule that the costs for restoring and searching the plaintiff’s emails should be shared, up to a maximum contribution by $1,500 by the plaintiff.

In this wrongful termination case based on plaintiff’s claims of retaliation by the defendant after the plaintiff took a leave of absence under the Family and Medical Leave Act (FMLA), the parties began the eDiscovery process to recover the plaintiff’s emails and asked the Court to resolve the issue of “first review” of documents identified as a result of an agreed upon search of Plaintiff’s emails, and the matter of cost-sharing.

The plaintiff asserted that he is entitled to a “first review” of all documents to be produced while the defendants asserted that after forensic retrieval of emails from Plaintiff’s email account, all non-potentially privileged documents should be forwarded directly to the defendants to save time.  Noting that “Plaintiff has no obligation to produce emails that are wholly irrelevant to either party’s claim or defense” and that broad search terms such as the plaintiff’s wife’s name was used, Judge Mehalchick ruled that the plaintiff was entitled to a “first review” of the results of the forensic examination of his email account.

Regarding the cost sharing request by the defendants, Judge Mehalchick referenced Fed. R. Civ. P. 26(b)(2)(B) and determined that the data requested was inaccessible without the forensic examination and used the seven factor balance test below for cost-shifting from Zubulake v. UBS Warburg to decide whether forensic examination costs should be shifted.  The factors are:

  1. The extent to which the request is specifically tailored to discover relevant information;
  2. The availability of such information from other sources;
  3. The total cost of production, compared to the amount in controversy;
  4. The total cost of production, compared to the resources available to each party;
  5. The relative ability of each party to control costs and its incentive to do so;
  6. The importance of the issues at stake in the litigation; and
  7. The relative benefits to the parties of obtaining the information.

Judge Mehalchick stated that “the parties were unable to identify the total cost of production of the search, compared to the amount in controversy and the resources to each party”.  However, with regard to the other five factors, she ruled that “the request is specifically tailored to discovery relevant information”, that “there is no other source which could possibly be available”, that since the parties have agreed on a forensic examiner “neither party has any more ability than the other to control the cost”, that “the information sought is important to the issues at stake in the litigation” and that “it is to the benefit of both parties to obtain the information sought”.

As a result, Judge Mehalchick found “that some cost-shifting is appropriate” and ruled “Plaintiff and Defendant should share equally in the cost of restoring and searching Plaintiff’s emails, up to a maximum contribution by Plaintiff of One Thousand Five Hundred Dollars ($1500.00).”

So, what do you think?  Was the Zubulake test applied appropriately?  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 Denies Defendant’s Request to Image Plaintiff’s PCs Three Years after Termination – eDiscovery Case Law
 

Here’s an interesting case courtesy of Virginia Lawyer’s Weekly…

In Downs v. Virginia Health Systems, Civil No. 5:13cv00083, (W.D. Va. June 2, 2014), Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

The plaintiff brought an employee discrimination case against the defendant following being terminated after nearly seventeen years of employment as an executive secretary.  Among the reasons the defendant gave to justify her discharge was that that she had accessed her supervisor’s e-mail account without authority (she disputed that the access was not authorized) and that she had similarly forwarded information from that account to her personal email accounts and her home computers without permission.

The plaintiff represented that she had deleted all material she sent to her home computers following her August 2011 termination; therefore, the defendant requested to have the plaintiff’s two family computers mirror-imaged “to ensure against any further spoliation or destruction of evidence”.  The plaintiff objected to that request as “overly broad, burdensome, ‘personally intrusive,’ and ‘would necessarily invade’ the attorney-client privilege”.  She also argued that the defendants’ in-house IT experts and its own computer logs and reports would provide the same information being requested by the defendant to be mirror-imaged.

Judge Welsh stated that “On its face, the discovery issue presented by the defendants’ request for an exhaustive forensic examination of the plaintiff’s computers is also directly within the scope of ESI discovery contemplated by the inspection, copying, testing and sampling provisions of Rule 34(a)(1)(A).”  Ultimately, however, he also stated as follows:

“Consideration of the defendants’ ESI motion in a manner consistent with the forgoing discovery rules, standards and principles, compels the following findings and conclusions:

(1) nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) the “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) there was no duty on the part of the plaintiff to preserve her family computers as evidence,

(4) principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) on the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.”

As a result, “even though the defendants have demonstrated a connection between the plaintiff’s two family computers and the issues this lawsuit”, Judge Welsh stated that “the court’s consideration of the several other relevant factors, including the proportionality balance required by Rule 26(b)(2), all weigh heavily against permitting the exhaustive and intrusive computer forensic examination the defendants seek” and denied the defendant’s motion to compel.

So, what do you think?  Should the drives have been imaged or did the defendant’s request fail the proportionality test?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Want My Production? Here’s my Database! – eDiscovery Trends

A couple of weeks ago, we covered a case where the US Government was ordered to continue providing access to an eDiscovery database to a defendant in a criminal case.  That case shed light on a growing trend in the industry that I have also observed personally – “producing” documents to opposing counsel by providing access to the documents via a hosted eDiscovery solution.

In Craig Ball’s Lawyer’s Guide to Forms of Production (that we recently covered here), Craig identified hosted production as one of the options for forms of production that can be requested.  However, as Craig notes, “More commonly, hosted data and online review tools are used internally by a producing party’s counsel to search the data for privileged and responsive items rather than as a means to afford access to the requesting party. The items identified are then duplicated onto transfer media (e.g., optical disks or a hard drive) and produced in one or more of the formats described above.”

That is certainly true, though more parties in litigation are choosing to provide access to the online database as a means of production (“production without production” as Craig calls it).  While I don’t have any statistics to point to, that has at least been my recent experience as platform manager for OnDemand®, CloudNine Discovery’s own hosted eDiscovery platform.

Typically, there are two options for producing documents by providing online access: 1) provide access to the existing database, or 2) create a new database of produced documents.  Here are the pros and cons of each:

  • Existing Database: Many parties provide access to portions of their existing eDiscovery database.  This reduces costs because the data is already hosted and may be a way for both parties to share hosting costs.  In those instances, security becomes paramount.  As attorneys need to exclude access to non-responsive or privileged documents and other work product, the eDiscovery application needs to provide the ability to limit the documents that users can see as well as limit the fields that users can see.  In addition, it’s important to have a well-documented plan for the database administrator to follow to ensure that the correct rights are assigned.  If not, inadvertent disclosures of documents or data fields used during review and production can occur.
  • New Database: While it may cost more to create a new database of produced documents (essentially doubling the storage of those documents into a new database), it is much easier to secure privileged information and attorney work product because those documents and data fields simply aren’t there, essentially eliminating the possibility of an inadvertent disclosure due to incorrect rights assignments.  In these cases, the receiving party often agrees to bear the costs of hosting their portion of the data.

In both cases, the advantages to the receiving party include access to the same produced documents in the same format in which they were reviewed using the same search and analytical tools that the producing party used to produce the documents, putting both parties on equal footing.

So, what do you think?  Have you been part of a hosted production?  If so, how did it go?  Were you on the producing or receiving end?  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.