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eDiscovery Year in Review: eDiscovery Case Law, Part 4
 

As we noted the past three days, eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases!  Yesterday, we looked back at cases related to discovery of social media.  One final set of cases to review.

We grouped those cases into common subject themes and have been reviewing them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

SANCTIONS / SPOLIATION

Behold the king!  I’ll bet that you won’t be surprised that the topic with the largest number of case law decisions (by far!) related to eDiscovery are those related to sanctions and spoliation issues.  Late in 2010, eDiscovery Daily reported on a Duke Law Journal article that indicated back then that sanctions were at an all-time high and the number of cases with sanction awards remains high.

Of the 50 cases we covered this past year, over a third of them (17 total cases) related to sanctions and spoliation issues.  Here they are.  And, as you’ll see by the first case (and a few others), sanctions requested are not always granted.  Then again, sometimes both sides get sanctioned!

No Sanctions for Scrubbing Computers Assumed to be Imaged.  In this case, data relevant to the case was lost when computers were scrubbed and sold by the defendants with the permission of the court-appointed Receiver, based on the Receiver’s mistaken belief that all relevant computers had been imaged and instruction to the defendants to scrub all computers before selling.  Because of the loss of this data, defendants filed a motion for spoliation sanctions for what they described as “the FTC’s bad-faith destruction of Defendants’ computer systems.”  Was the motion granted?

Spoliate Evidence, Don’t Go to Jail, but Pay a Million Dollars.  Defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to "be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs". However, ruling on the defendants’ appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating it was not "appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment…". So, how much was he ordered to pay?  Now we know.  That decision was affirmed here.

Deliberately Produce Wrong Cell Phone, Get Sanctioned.  In this case, the plaintiff originally resisted production of a laptop and a cell phone for examination, but ultimately produced a laptop and cell phone. The problem with that production? After examination, it was determined that neither device was in use during the relevant time period and the actual devices used during that time frame were no longer in plaintiff’s possession. When requested to explain as to why this was not disclosed initially, the plaintiff’s attorney explained that he was torn between his “competing duties” of protecting his client and candor to the court.  Really?

Destroy Data, Pay $1 Million, Lose Case.  A federal judge in Chicago has levied sanctions against Rosenthal Collins Group LLC and granted a default judgment to the defendant for misconduct in a patent infringement case, also ordering the Chicago-based futures broker's counsel to pay "the costs and attorneys fees incurred in litigating this motion" where plaintiff’s agent modified metadata related to relevant source code and wiped several relevant disks and devices prior to their production and where the court found counsel participated in "presenting misleading, false information, materially altered evidence and willful non-compliance with the Court’s orders."

Conclusion of Case Does Not Preclude Later Sanctions.  In this products liability case that had been settled a year earlier, the plaintiff sought to re-open the case and requested sanctions alleging the defendant systematically destroyed evidence, failed to produce relevant documents and committed other discovery violations in bad faith. As Yogi Berra would say, “It ain’t over ‘til it’s over”.

Written Litigation Hold Notice Not Required.  The Pension Committee case was one of the most important cases of 2010 (or any year, for that matter). So, perhaps it’s not surprising that it is starting to become frequently cited by those looking for sanction for failure to issue a written litigation hold. In this case, the defendant cited Pension Committee, arguing that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions.  Was the court’s ruling consistent with Pension Committee?

No Sanctions Ordered for Failure to Preserve Backups.  A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

Discovery Violations Result in Sanctions Against Plaintiff and Counsel.  Both the plaintiff and plaintiff's counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

Meet and Confer is Too Late for Preservation Hold.  A US District court in Indiana ruled on June 28 in favor of a motion for an Order to Secure Evidence in an employment discrimination lawsuit. The defendant had given the plaintiff reason to believe that emails and other relevant documents might be destroyed prior to Rule 26(f) meeting between the parties or Rule 16(b) discovery conference with the court. As a result, the plaintiff formally requested a litigation hold on all potentially relevant documents, which was approved by US Magistrate Judge Andrew Rodovich.

Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery.  A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures "wholly devoid of competence, yet only once motivated by guile". Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff's attorney fees and costs.

Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data.  The Supreme Court of Delaware recently upheld the sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction. In this case, Arie Genger, CEO of Trans-Resources, Inc., argued that sanctions against him were unreasonable and made a motion for the court to overturn its previous decision regarding spoliation of discovery materials. Instead, after due process, the court upheld its earlier decision.

Sanctions for Spoliation, Even When Much of the Data Was Restored.  A Virginia court recently ordered sanctions against the defendant in a case of deliberate spoliation of electronic discovery documents. In this case, the defendant was found to have committed spoliation "in bad faith" in a manner that constituted a "violation of duty… to the Court and the judicial process."

"Untimely" Motion for Sanctions for Spoliation Denied.  A recent ruling by the US District Court of Tennessee has denied a motion for sanctions for spoliation on the grounds that the motion was "untimely." In this case, the plaintiff argued that the defendants' admitted failure to preserve evidence "warrants a harsh penalty," but the court found in favor of the defense that the motion was untimely.

Defendant Sanctioned for Abandonment and Sale of Server; Defendants' Counsel Unaware of Spoliation.  An Illinois District Court ordered heavy sanctions against the defense for spoliation "willfully and in bad faith" of documents stored on a server, in a case revolving around damages sought for breach of loan agreements.

Facebook Spoliation Significantly Mitigates Plaintiff’s Win.  In this case with both social media and spoliation issues, monetary sanctions were ordered against the plaintiff and his counsel for significant discovery violations. Those violations included intentional deletion of pictures on the plaintiff’s Facebook page as instructed by his Counsel as well as subsequent efforts to cover those instructions up, among others.

Lilly Fails to Meet its eDiscovery Burden, Sanctions Ordered.  In this case, a Tennessee District court found that “Lilly failed to take reasonable steps to preserve, search for, and collect potentially relevant information, particularly electronic data, after its duty to preserve evidence was triggered by being served with the complaint.” As a result, the court ordered sanctions against Lilly. How far did the court go with those sanctions?

Court Grants Adverse Inference Sanctions Against BOTH Sides.  Have you ever seen the video where two boxers knock each other out at the same time? That’s similar to what happened in this case. In this case, the court addressed the parties’ cross motions for sanctions, ordering an adverse inference for the defendants’ failure to preserve relevant video surveillance footage, as well as an adverse inference for the plaintiff’s failure to preserve relevant witness statements. The court also awarded defendants attorneys’ fees and costs and ordered re-deposition of several witnesses at the plaintiff’s expense due to other plaintiff spoliation findings.

Next week, we will begin looking ahead at 2012 and expected eDiscovery trends for the coming year.

So, what do you think?  Of all of the cases that we have recapped over the past four days, which case do you think was the most significant?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Plaintiff Not Required to Review Millions of Pages of Unallocated Space
 

While plaintiff “should have known better than to agree to search terms” that arguably resulted in recovery from unallocated space files of 65 million pages of documents for plaintiff to review for privilege, a magistrate judge in I-Med Pharma, Inc. v. Biomatrix, Inc., No. 03-3677 (DRD), (D.N.J. Dec. 9, 2011) properly excused plaintiff from its stipulation to produce such documents after reviewing them for privilege.

Plaintiff alleged that defendants breached a distribution agreement relating to eye-drops after one of the defendants was acquired by another defendant. A stipulation among the parties provided for a keyword search by defendants’ expert of plaintiff’s computer network, servers, and related storage devices using English and French terms, including “claim”, “revenue*”, and “profit*”. The search resulted in over 64 million hits just in unallocated space of plaintiff’s computer systems.

District Judge Dickinson Debevoise affirmed a magistrate judge’s order excusing plaintiff from a privilege review of the estimated equivalent of 65 million documents in the unallocated space that contained an agreed search term. Judge Debevoise stated its concern over the cost of such a review:

“A privilege review of 65 million documents is no small undertaking. Even if junior attorneys are engaged, heavily discounted rates are negotiated, and all parties work diligently and efficiently, even a cursory review of that many documents will consume large amounts of attorney time and cost millions of dollars.”

Judge Debevoise rejected defendant’s suggestion that plaintiff could simply review documents with the word “privileged” and produce everything else:

“Even when dealing with intact files, potentially privileged information may often be found in emails, memoranda, presentations, or other documents that are not explicitly flagged as privileged or confidential. And since the data searched here is likely to contain fragmented or otherwise incomplete documents, it is entirely possible for privileged material to be found without its original identifying information.”

Defendants had not shown that relevant, non-duplicate information likely would be found in the unallocated space, according to the court. Thus, plaintiff should have known better than to agree on the search terms, but requiring a privilege review of the results would not be fair or just. Judge Debevoise added a list of factors that parties should consider in evaluating reasonableness of search terms:

“In evaluating whether a set of search terms are reasonable, a party should consider a variety of factors, including: (1) the scope of documents searched and whether the search is restricted to specific computers, file systems, or document custodians; (2) any date restrictions imposed on the search; (3) whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents; (4) whether operators such as "and", "not", or "near" are used to restrict the universe of possible results; (5) whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.”

So, what do you think?  Did common sense prevail or should the plaintiff have been held to the agreement?  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).

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: John Simek
 

This is the third of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is John Simek. John is the Vice President of Sensei Enterprises, a computer forensics firm in Fairfax, Va, where he has worked since 1997. He is an EnCase Certified Examiner and is a nationally known testifying expert in computer forensic issues. Together with his wife, Sharon Nelson, John has become a frequent speaker on eDiscovery topics and digital forensic issues. We have also interviewed Sharon, who serves as Sensei’s President, for this series, and her interview will appear this coming Wednesday.

You have been a forensic examiner for a long time. How has the business changed over that time? How much does the rate of change in computer technology make your job difficult? Has social media and mobile technology changed the nature of your work and the evidence in play?

Certainly the technology changes present a challenge for any forensic examiner. We are constantly investing in training and tools to deal with the changing landscape. Social media investigations and mobile devices are explosive forms of evidence for many of our cases. The constant changes in smartphones means we must have dozens of tools to extract data from iPads, Androids, BlackBerrys, iPhones, tablets and other mobile devices. Access to social media data varies as well. Some is readily available in the public areas, some may reside on the actual computer used to access the social media sites and some data may be held by the providers themselves, where the user has no clue it is being collected.

There have been several cases of law firms and EDD providers suing each other of late. Why is there this seeming rise in conflict and how does it affect relationships in the industry?

I’ve only seen two such cases and they get ugly really quick. I think the primary reason is lack of transparency and adequate communication. The client should always know what the anticipated costs and effort will be. Should scope change then a new estimate needs to be communicated. I think all too often the EDD providers launch out of the gate and the costs spiral out of control. Obviously, if you are one of those providers that ended up in court over fees or even inadequate or improper processing of ESI, your reputation will be forever spoiled.

There are a lot of certifications a forensic examiner can obtain. What is the value of certification? How should buyers of EDD services evaluate their forensic examiners?

Certifications are a good starting point, although I think they have lost their value over the last several years. Perhaps the tests are getting easier, but I’m seeing folks with forensic certifications that shouldn’t be trusted with a mouse in their hand. Don’t just look to forensic certifications either. Other technology (network, operating system, database, etc.) certifications are also valuable. Check CVs. Do they speak, write and have previous experiences testifying? One of the best methods of evaluation is referrals. Did they do a quality job? Were they on time? Did the costs fall within budget?

You’ve done a lot of work in family law cases. In cases where emotions are running high, how do you counsel clients? Is there a way to talk to people about proportionality when they are angry?

You’ve hit the nail on the head. There is very little logic in family law cases, especially when emotions are running high. I’ve lost count of the number of times we’ve told clients NOT to spend their money on continuing or even starting a forensic analysis. Some listen and some don’t. The exception is where there are issues pertaining to the welfare of any children. We had one case where dad was into BDSM and exhibiting similar behavior towards the children. Mom had no job and was extremely brutalized from the abuse over the years. We completed that case pro bono as it was the right thing to do. Dad lost custody and ordered supervised visitation only.

There has been a lot of hype about EDD services for small firms. In your experience, is this becoming a reality? Can small and solo firms compete with large firms for more EDD cases?

Electronic evidence plays a part in more and more cases. There is a crying need for better tools and methods to review ESI in the smaller cases. Thankfully, some vendors are listening. Products like Digital Warroom and Nextpoint’s products are very affordable for the smaller cases and don’t require a large investment by the solo or small firm attorney. These are hosted solutions, which means you are using the cloud. Large firms are also using hosted solutions, but may use other vendor products depending on the type of data (e.g. foreign language) and/or volume.

You testify in a lot of cases as an expert witness. What are the reasons your services might be needed in this area? What are common reasons that forensic evidence is being challenged, and how can legal teams avoid being challenged?

The good news is that less than 10% of our cases end up going to trial. As we say in the forensic world, “The truth is the truth.” Once we have had a chance to analyze the evidence and report the findings, there are rarely any challenges. That’s what a forensic exam is all about- being repeatable. The opposing party’s examiner better find the same results. The challenge may come from the interpretation of the results. This is where experience and knowledge of the expert comes into play. Many of the forensic examiners today have never used a computer without a graphical interface. Remember the Casey Anthony case? I cringed when I heard the prosecution testimony about the activity surrounding the Internet searches. It failed the smell test in my mind, which ended up being true since the expert later admitted there was a problem with the software that was used.

Would you recommend a similar career path to young technologists? What do you like about being a forensic examiner?

Some universities are now offering degrees in Digital Forensics or some similar name. I’m not sure I would go the route of computer forensics as a baseline. I’m seeing more activity in what I would call digital investigations. This includes network forensics and dealing with cases such as data breaches. We are doing more and more of these types of exams. It’s sort of like following the data trail. Probably the single best thing about being a forensic examiner is getting to the truth. Since we also do criminal defense work, there are many times that we’ve had to call the attorney and tell them that their client needs a new story.

Thanks, John, 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!

eDiscovery Trends: Bennett Borden
 

This is the second of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today's thought leader is Bennett B. Borden. Bennett is the co-chair of Williams Mullen’s eDiscovery and Information Governance Section. Based in Richmond, Va., his practice is focused on Electronic Discovery and Information Law. He has published several papers on the use of predictive coding in litigation. Bennett is not only an advocate for predictive coding in review, but has reorganized his own litigation team to more effectively use advanced computer technology to improve eDiscovery.

You have written extensively about the ways that the traditional, or linear review process is broken. Most of our readers understand the issue, but how well has the profession at large grappled with this? Are the problems well understood?

The problem with the expense of document review is well understood, but how to solve it is less well known. Fortunately, there is some great research being done by both academics and practitioners that is helping shed light on both the problem and the solution. In addition to the research we’ve written about in The Demise of Linear Review and Why Document Review is Broken, some very informative research has come out of the TREC Legal Track and subsequent papers by Maura R. Grossman and Gordon V. Cormack, as well as by Jason R. Baron, the eDiscovery Institute, Douglas W. Oard and Herbert L. Roitblat, among others.  Because of this important research, the eDiscovery bar is becoming increasingly aware of how document review and, more importantly, fact development can be more effective and less costly through the use of advanced technology and artful strategy. 

You are a proponent of computer-assisted review- is computer search technology truly mature? Is it a defensible strategy for review?

Absolutely. In fact, I would argue that computer-assisted review is actually more defensible than traditional linear review.  By computer-assisted review, I mean the utilization of advanced search technologies beyond mere search terms (e.g., topic modeling, clustering, meaning-based search, predictive coding, latent semantic analysis, probabilistic latent semantic analysis, Bayesian probability) to more intelligently address a data set. These technologies, to a greater or lesser extent, group documents based upon similarities, which allows a reviewer to address the same kinds of documents in the same way.

Computers are vastly superior to humans in quickly finding similarities (and dissimilarities) within data. And, the similarities that computers are able to find have advanced beyond mere content (through search terms) to include many other aspects of data, such as correspondents, domains, dates, times, location, communication patterns, etc. Because the technology can now recognize and address all of these aspects of data, the resulting groupings of documents is more granular and internally cohesive.  This means that the reviewer makes fewer and more consistent choices across similar documents, leading to a faster, cheaper, better and more defensible review.

How has the use of [computer-assisted review] predictive coding changed the way you tackle a case? Does it let you deploy your resources in new ways?

I have significantly changed how I address a case as both technology and the law have advanced. Although there is a vast amount of data that might be discoverable in a particular case, less than 1 percent of that data is ever used in the case or truly advances its resolution. The resources I deploy focus on identifying that 1 percent, and avoiding the burden and expense largely wasted on the 99 percent. Part of this is done through developing, negotiating and obtaining reasonable and iterative eDiscovery protocols that focus on the critical data first. EDiscovery law has developed at a rapid pace and provides the tools to develop and defend these kinds of protocols. An important part of these protocols is the effective use of computer-assisted review.

Lately there has been a lot of attention given to the idea that computer-assisted review will replace attorneys in litigation. How much truth is there to that idea? How will computer-assisted review affect the role of attorneys?

Technology improves productivity, reducing the time required to accomplish a task. This is no less true of computer-assisted review. The 2006 amendments to the Federal Rules of Civil Procedure caused a massive increase in the number of attorneys devoted to the review of documents. As search technology and the review tools that employ them continue to improve, the demand for attorneys devoted to review will obviously decline.

But this is not a bad thing. Traditional linear document review is horrifically tedious and boring, and it is not the best use of legal education and experience. Fundamentally, litigators develop facts and apply the law to those facts to determine a client’s position to advise them to act accordingly. Computer-assisted review allows us to get at the most relevant facts more quickly, reducing both the scope and duration of litigation. This is what lawyers should be focused on accomplishing, and computer-assisted review can help them do so.

With the rise of computer-assisted review, do lawyers need to learn new skills? Do lawyers need to be computer scientists or statisticians to play a role?

Lawyers do not need to be computer scientists or statisticians, but they certainly need to have a good understanding of how information is created, how it is stored, and how to get at it. In fact, lawyers who do not have this understanding, whether alone or in conjunction with advisory staff, are simply not serving their clients competently.

You’ve suggested that lawyers involved in computer-assisted review enjoy the work more than in the traditional manual review process. Why do you think that is?

I think it is because the lawyers are using their legal expertise to pursue lines of investigation and develop the facts surrounding them, as opposed to simply playing a monotonous game of memory match. Our strategy of review is to use very talented lawyers to address a data set using technological and strategic means to get to the facts that matter. While doing so our lawyers uncover meaning within a huge volume of information and weave it into a story that resolves the matter. This is exciting and meaningful work that has had significant impact on our clients’ litigation budgets.

How is computer assisted review changing the competitive landscape? Does it provide an opportunity for small firms to compete that maybe didn’t exist a few years ago?

We live in the information age, and lawyers, especially litigators, fundamentally deal in information. In this age it is easier than ever to get to the facts that matter, because more facts (and more granular facts) exist within electronic information. The lawyer who knows how to get at the facts that matter is simply a more effective lawyer. The information age has fundamentally changed the competitive landscape. Small companies are able to achieve immense success through the skillful application of technology. The same is true of law firms. Smaller firms that consciously develop and nimbly utilize the technological advantages available to them have every opportunity to excel, perhaps even more so than larger, highly-leveraged firms. It is no longer about size and head-count, it’s about knowing how to get at the facts that matter, and winning cases by doing so.

Thanks, Bennett, 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!

eDiscovery Trends: Jason R. Baron
 

This is the first of the Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Jason R. Baron. Jason has served as the National Archives' Director of Litigation since May 2000 and has been involved in high-profile cases for the federal government. His background in eDiscovery dates to the Reagan Administration, when he helped retain backup tapes containing Iran-Contra records from the National Security Council as the Justice Department’s lead counsel. Later, as director of litigation for the U.S. National Archives and Records Administration, Jason was assigned a request to review documents pertaining to tobacco litigation in U.S. v. Philip Morris.

He currently serves as The Sedona Conference Co-Chair of the Working Group on Electronic Document Retention and Production. Baron is also one of the founding coordinators of the TREC Legal Track, a search project organized through the National Institute of Standards and Technology to evaluate search protocols used in eDiscovery. This year, Jason was awarded the Emmett Leahy Award for Outstanding Contributions and Accomplishments in the Records and Information Management Profession.

You were recently awarded the prestigious Emmett Leahy Award for excellence in records management. Is it unusual that a lawyer wins such an award? Or is the job of the litigator and records manager becoming inextricably linked?

Yes, it was unusual: I am the first federal lawyer to win the Emmett Leahy award, and only the second lawyer to have done so in the 40-odd years that the award has been given out. But my career path in the federal government has been a bit unusual as well: I spent seven years working as lead counsel on the original White House PROFS email case (Armstrong v. EOP), followed by more than a decade worrying about records-related matters for the government as Director of Litigation at NARA. So with respect to records and information management, I long ago passed at least the Malcolm Gladwell test in "Outliers" where he says one needs to spend 10,000 hours working on anything to develop a level of "expertise."  As to the second part of your question, I absolutely believe that to be a good litigation attorney these days one needs to know something about information management and eDiscovery — since all evidence is "born digital" and lots of it needs to be searched for electronically. As you know, I also have been a longtime advocate of a greater linking between the fields of information retrieval and eDiscovery.

In your acceptance speech you spoke about the dangers of information overload and the possibility that it will make it difficult for people to find important information. How optimistic that we can avoid this dystopian future? How can the legal profession help the world avoid this fate? 

What I said was that in a world of greater and greater retention of electronically stored information, we need to leverage artificial intelligence and specifically better search algorithms to keep up in this particular information arms race. Although Ralph Losey teased me in a recent blog post that I was being unduly negative about future information dystopias, I actually am very optimistic about the future of search technology assisting in triaging the important from the ephemeral in vast collections of archives. We can achieve this through greater use of auto-categorization and search filtering methods, as well as a having a better ability in the future to conduct meaningful searches across the enterprise (whether in the cloud or not). Lawyers can certainly advise their clients how to practice good information governance to accomplish these aims.

You were one of the founders of the TREC Legal Track research project. What do you consider that project’s achievement at this point?

The initial idea for the TREC Legal Track was to get a better handle on evaluating various types of alternative search methods and technologies, to compare them against a "baseline" of how effective lawyers were in relying on more basic forms of keyword searching. The initial results were a wake-up call, in showing lawyers that sole reliance on simple keywords and Boolean strings sometimes results in a large quantity of relevant evidence going missing. But during the half-decade of research that now has gone into the track, something else of perhaps even greater importance has emerged from the results, namely: we have a much better understanding now of what a good search process looks like, which includes a human in the loop (known in the Legal Track as a topic authority) evaluating on an ongoing, iterative basis what automated search software kicks out by way of initial results. The biggest achievement however may simply be the continued existence of the TREC Legal Track itself, still going in its 6th year in 2011, and still producing important research results, on an open, non-proprietary platform, that are fully reproducible and that benefit both the legal profession as well as the information retrieval academic world. While I stepped away after 4 years from further active involvement in the Legal Track as a coordinator, I continue to be highly impressed with the work of the current track coordinators, led by Professor Doug Oard at the University of Maryland, who was remained at the helm since the very beginning.

To what extent has TREC’s research proven the reliability of computer-assisted review in litigation? Is there a danger that the profession assumes the reliability of computer-assisted review is a settled matter?

The TREC Legal Track results I am most familiar with through calendar year 2010 have shown computer-assisted review methods finding in some cases on the order of 85% of relevant documents (a .85 recall rate) per topic while only producing 10% false positives (a .90 precision rate). Not all search methods have had these results, and there has been in fact a wide variance in success achieved, but these returns are very promising when compared with historically lower rates of recall and precision across many information retrieval studies. So the success demonstrated to date is highly encouraging. Coupled with these results has been additional research reported by Maura Grossman & Gordon Cormack, in their much-cited paper Technology-Assisted Review in EDiscovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, which makes the case for the greater accuracy and efficiency of computer-assisted review methods.

Other research conducted outside of TREC, most notably by Herbert Roitblat, Patrick Oot and Anne Kershaw, also point in a similar direction (as reported in their article Mandating Reasonableness in a Reasonable Inquiry). All of these research efforts buttress the defensibility of technology-assisted review methods in actual litigation, in the event of future challenges. Having said this, I do agree that we are still in the early days of using many of the newer predictive types of automated search methods, and I would be concerned about courts simply taking on faith the results of past research as being applicable in all legal settings. There is no question however that the use of predictive analytics, clustering algorithms, and seed sets as part of technology-assisted review methods is saving law firms money and time in performing early case assessment and for multiple other purposes, as reported in a range of eDiscovery conferences and venues — and I of course support all of these good efforts.

You have discussed the need for industry standards in eDiscovery. What benefit would standards provide?

Ever since I served as Co-Editor in Chief on The Sedona Conference Commentary on Achieving Quality in eDiscovery (2009), I have been thinking that the process for conducting good eDiscovery. That paper focused on project management, sampling, and imposing various forms of quality controls on collection, review, and production. The question is, is a good eDiscovery process capable of being fit into a maturity model of sorts, and might be useful to consider whether vendors and law firms would benefit from having their in-house eDiscovery processes audited and certified as meeting some common baseline of quality? To this end, the DESI IV workshop ("Discovery of ESI") held in Pittsburgh last June, as part of the Thirteenth International AI and Law Conference (ICAIL 2011), had as its theme exploring what types of model standards could be imposed on the eDiscovery discipline, so that we all would be able to work from some common set of benchmarks, Some 75 people attended and 20-odd papers were presented. I believe the consensus in the room was that we should be pursuing further discussions as to what an ISO 9001-type quality standard would look like as applied to the specific eDiscovery sector, much as other industry verticals have their own ISO standards for quality. Since June, I have been in touch with some eDiscovery vendors have actually undergone an audit process to achieve ISO 9001 certification. This is an area where no consensus has yet emerged as to the path forward — but I will be pursuing further discussions with DESI workshop attendees in the coming months and promise to report back in this space as to what comes of these efforts.

What sort of standards would benefit the industry? Do we need standards for pieces of the eDiscovery process, like a defensible search standard, or are you talking about a broad quality assurance process?

DESI IV started by concentrating on what would constitute a defensible search standard; however, it became clear at the workshop and over the course of the past few months that we need to think bigger, in looking across the eDiscovery life cycle as to what constitutes best practices through automation and other means. We need to remember however that eDiscovery is a very young discipline, as we're only five years out from the 2006 Rules Amendments. I don't have all the answers, by any means, on what would constitute an acceptable set of standards, but I like to ask questions and believe in a process of continuous, lifelong learning. As I said, I promise I'll let you know about what success has been achieved in this space.

Thanks, Jason, 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!

eDiscovery Best Practices: Search “Gotchas” Still Get You
 

A few days ago, I reviewed search syntax that one of my clients had prepared and noticed a couple of “gotchas” that typically cause problems.  While we’ve discussed them on this blog before, it was over a year ago (when eDiscovery Daily was still in its infancy and had a fraction of the readers it has today), so it bears covering them again.

Letting Your Wildcards Run Wild

This client liberally used wildcards to catch variations of words in their hits.  As noted previously, sometimes you can retrieve WAY more with your wildcards than you expect.  In this case, one of the wildcard terms was “win*” (presumably to catch win, wins, winner, winning, etc.).  Unfortunately, there are 253 words that begin with “win”, including wince, winch, wind, windbag, window, wine, wing, wink, winsome, winter, etc.

How do I know that there are 253 words that begin with “win”?  Am I an English professor?  No.  But, I did stay at a Holiday Inn Express last night.  Just kidding.

Actually, there is a site to show a list of words that begin with your search string.  Morewords.com shows a list of words that begin with your search string (e.g., to get all 253 words beginning with “win”, go here – simply substitute any characters for “win” in the URL to see the words that start with those characters).  This site enables you to test out your wildcard terms before using them in searches and substitute the variations you want if the wildcard search is likely to retrieve too many false hits.  Or, if you use an application like FirstPass™, powered by Venio FPR™, for first pass review, you can type the wildcard string in the search form, display all the words – in your collection – that begin with that string, and select the variations on which to search.  Either way enables you to avoid retrieving a lot of false hits you don’t want.

Those Stupid Word “Smart” Quotes

As many attorneys do, this client used Microsoft Word to prepare his proposed search syntax.  The last few versions of Microsoft Word, by default, automatically change straight quotation marks ( ' or " ) to curly quotes as you type. When you copy that text to a format that doesn’t support the smart quotes (such as HTML or a plain text editor), the quotes will show up as garbage characters because they are not supported ASCII characters.  So:

“smart quotes” aren’t very smart

will look like this…

âsmart quotesâ arenât very smart

And, your search will either return an error or some very odd results.

To learn how to disable the automatic changing of quotes to smart quotes or replace smart quotes already in a file, refer to this post from last year.  And, be careful, there’s a lot of “gotchas” out there that can cause search problems.  That’s why it’s always best to be a “STARR” and test your searches, refine and repeat them until they yield expected results.

So, what do you think?  Have you run into these “gotchas” in your searches? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases
 

Since eDiscovery Daily debuted over 14 months ago, we’ve covered a lot of case law decisions related to eDiscovery.  65 posts related to case law to date, in fact.  We’ve covered cases associated with sanctions related to failure to preserve data, issues associated with incomplete collections, inadequate searching methodologies, and inadvertent disclosures of privileged documents, among other things.  We’ve noted that 80% of the costs associated with eDiscovery are in the Review phase and that volume of data and sources from which to retrieve it (including social media and “cloud” repositories) are growing exponentially.  Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis).

All of those phases lead to one inevitable stage in eDiscovery: Production.  Yet, few people talk about the actual production step.  If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

It’s the final crucial step in the process, and if it’s not handled correctly, all of the due diligence spent in the earlier phases could mean nothing.  So, it’s important to plan for production up front and to apply a number of quality control (QC) checks to the actual production set to ensure that the production process goes as smooth as possible.

Planning for Production Up Front

When discussing the production requirements with opposing counsel, it’s important to ensure that those requirements make sense, not only from a legal standpoint, but a technical standpoint as well.  Involve support and IT personnel in the process of deciding those parameters as they will be the people who have to meet them.  Issues to be addressed include, but not limited to:

  • Format of production (e.g., paper, images or native files);
  • Organization of files (e.g., organized by custodian, legal issue, etc.);
  • Numbering scheme (e.g., Bates labels for images, sequential file names for native files);
  • Handling of confidential and privileged documents, including log requirements and stamps to be applied;
  • Handling of redactions;
  • Format and content of production log;
  • Production media (e.g., CD, DVD, portable hard drive, FTP, etc.).

I was involved in a case recently where opposing counsel was requesting an unusual production format where the names of the files would be the subject line of the emails being produced (for example, “Re: Completed Contract, dated 12/01/2011”).  Two issues with that approach: 1) The proposed format only addressed emails, and 2) Windows file names don’t support certain characters, such as colons (:) or slashes (/).  I provided that feedback to the attorneys so that they could address with opposing counsel and hopefully agree on a revised format that made more sense.  So, let the tech folks confirm the feasibility of the production parameters.

The workflow throughout the eDiscovery process should also keep in mind the end goal of meeting the agreed upon production requirements.  For example, if you’re producing native files with metadata, you may need to take appropriate steps to keep the metadata intact during the collection and review process so that the metadata is not inadvertently changed. For some file types, metadata is changed merely by opening the file, so it may be necessary to collect the files in a forensically sound manner and conduct review using copies of the files to keep the originals intact.

Tomorrow, we will talk about preparing the production set and performing QC checks to ensure that the ESI being produced to the requesting party is complete and accurate.

So, what do you think?  Have you had issues with production planning in your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Potential ESI Sources Abound in Penn State Case
 

Whether you’re a college football fan or not, chances are you’ve heard about the scandal associated with the allegations of serial child abuse by former Penn State football coach Jerry Sandusky.  There seems to be new developments almost daily and the scandal has already cost the jobs of the university president, vice president, athletic director and the head football coach, Joe Paterno, who had been head coach since 1965 and on the coaching staff since 1950 (most of us weren’t even born yet!).  Numerous lawsuits seem highly likely to arise as a result of the alleged abuse against a variety of defendants, including the university, individuals alleged to be involved in the abuse and cover-up and also the Second Mile Foundation founded by Sandusky.

Seth Row, an attorney with Parsons Farnell & Grein LLP in Portland (OR), has written an article published in the Association of Certified eDiscovery Specialists (ACEDS) web site providing a detailing of potential sources of ESI that may be relevant in the case.  The article illustrates the wide variety of sources that might be responsive to the litigation.  Here are some of the sources cited by Row:

  • Videotape of entry and exit from the athletic facilities at Penn State, to which Paterno gave Sandusky access after the latter resigned in 1999;
  • Entry/exit logs, which are likely housed in a database if keycards were used, for the Lasch Football Building, where abuse was allegedly witnessed
  • Phone records of incoming and outgoing calls;
  • Electronic rosters of football players, coaches, staff, student interns, and volunteers affiliated with the Penn State football program over time;
  • The personal records of these individuals, including telephone logs, internet search histories, email accounts, medical and financial records, and related information created over time;
  • University listservs;
  • Internet forums – a New York Times article reported last week that a critical break in the investigation came via a posting on the Internet, mentioning that a Penn State football coach might have seen something ugly, but kept silent;
  • Maintenance logs maintained by the two custodial employees who allegedly witnessed abuse;
  • Identities of all media beat reporters who covered the Penn State football team;
  • Passenger and crew manifests for all chartered flights of the Penn State football team in which Sandusky was a passenger;
  • Sandusky's credit card records to document meals and outings where he may have been accompanied by victims, and records of gifts he purchased for them;
  • All records of the Second Mile Foundation identifying boys who participated in its programs, as well as the names of donors and officers, directors and staff;
  • Paper record equivalents of this ESI that were produced in the 1990s before electronic recordkeeping became prevalent;
  • All electronic storage and computing devices owned or maintained by Sandusky, Paterno and other central figures in the scandal, including cell phones, personal computers, tablet computers, flash drives, and related hardware.

With such a wide variation of potential custodians and time frames, it will be difficult to quickly narrow down the potential ESI sources.  As the author points out, it seems likely that Penn State has already locked down its records retention policies throughout the university.  They certainly would seem to have a reasonable expectation of litigation.  Investigators and attorneys will likely be racing against time to identify as many other parties as possible with potentially responsive ESI.

So, what do you think?  Have you been involved in litigation with such a wide distribution of potentially responsive ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Grants Adoption of Model Order for Patent Case

Model orders to limit discovery for patent cases have gained popularity in various jurisdictions, including this recent order proposed in Texas.  Here’s one patent case where the defendant sought to adopt such a model order.

In DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C-11-03792 PSG, (N.D. Cal. Nov. 2, 2011), defendant Checkpoint asked the court to enter a version of the model order. (The proposed version differed from the model order in the number of keywords and custodians and on an issue of metadata.) The court granted defendant’s motion.

Plaintiff DCG objected to the entry of the order. It argued that since this was a case between competitors, and not a case brought by a nonpracticing entity (an “NPE,” or sometimes called a “patent troll”), the discovery would be improperly impeded by the model order’s limitations on email discovery.

NPE or patent troll cases often involve asymmetrical discovery – the plaintiff has few documents but the defendant has many. And some commentators have proposed that the model eDiscovery order seeks to reduce the ill-effects of this asymmetry. In this case plaintiff argued that it would need discovery on legitimate issues that may have arisen with an actual competitor, e.g., whether defendant copied plaintiff’s technology and whether plaintiff was entitled to an injunction. Plaintiff’s argument presupposed that the model order’s limitations would cut into the scope of that purported legitimate discovery.

The court rejected plaintiff’s arguments. It found that: (1) nothing in the model order or the Chief Judge of the Federal Circuit’s speech unveiling the order suggested that it was intended only for NPE cases, and (2) there was no reason to believe that non-NPE (competitor) cases presented less compelling circumstances in which to impose reasonable restrictions on the timing and scope of email discovery.

The court also addressed the notion that the model order would help only in NPE cases or cases involving asymmetrical eDiscovery. It observed that the model order could have double the benefit in competitor cases. If using the model order to relieve the burden on the producing party in an NPE case was a good thing, then using it in a suit between competitors benefit both sides and be twice as good.

So, what do you think?  Are model orders to limit discovery a good idea?  If so, should they apply to other types of cases? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Practical eDiscovery Blog, by Hinshaw & Culbertson, LLP.

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: Could This Be the Most Expensive eDiscovery Mistake Ever?
 

Many of you have Android phones.  I do, as well.  As you may know, Android is Google’s operating system for phones and Android phones have become extraordinarily popular.

However, as noted in this Computerworld UK article, it may be a failure in searching that ironically may cost Google big time in its litigation with Oracle over the Android operating system.

Google is currently involved in a lawsuit with Oracle over license fees associated with Java.  Oracle acquired Java when it purchased Sun Microsystems and many companies license Java.  Java forms a critical part of Google’s Android operating system and Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.  Android has been so successful for Google that a loss to Oracle could result in billions of dollars in damages.

To cull down a typically large ESI population, Google turned to search technology to help identify potentially responsive and potentially privileged files.  Unfortunately for Google, a key email was produced that could prove damaging to their case.  The email was written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google. With Oracle having threatened to sue Google for billions of dollars, Lindholm was instructed by Google executives to identify alternatives to Java for use in Android, presumably to strengthen their negotiating position.

"What we've actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome," the email reads in part, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

Lindholm added the words “Attorney Work Product” and sent the email to Andy Rubin (Google’s top Android executive) and Google in-house attorney Ben Lee.  Unfortunately, Lindholm’s computer saved nine drafts of the email while he was writing it – before he added the words and addressed the email to Lee.  Because Lee's name and the words "attorney work product" weren't on the earlier drafts, they weren't picked up by the eDiscovery software as privileged documents, and they were sent off to Oracle's lawyers.

Oracle's lawyers read from the email at two hearings over the summer and Judge William Alsup of the U.S. District Court in Oakland, California, indicated to Google's lawyers that it might suggest willful infringement of Oracle's patents.  Google filed a motion to "clawback" the email on the grounds it was "unintentionally produced privileged material." Naturally, Oracle objected, and after a three-month legal battle, Alsup refused last month to exclude the document at trial.

How did Google let such a crucial email slip through production?  It’s difficult to say without fully knowing their methodology.  Did they rely too much on technology to identify files for production without providing a full manual review of all files being produced?  Or, did manual review (which can be far from perfect) let the email slip through as well?  Conceivably, organizing the documents into clusters, based on similar content, might have grouped the unsent drafts with the identified “attorney work product” final version and helped to ensure that the drafts were classified as intended.

So, what do you think?  Could this mistake cost Google billions?  Please share any comments you might have or if you’d like to know more about a particular topic.