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eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com 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!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

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

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

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

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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

eDiscovery History: A Look Back at Zubulake
 

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212.  Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data.  Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case.  But, do you understand just how many groundbreaking opinions resulted from that case?  For those who aren’t aware, let’s take a look back.

The plaintiff, Laura Zubulake, filed suit against her former employer UBS Warburg, alleging gender discrimination, failure to promote, and retaliation. Southern District of New York Judge Shira Sheindlin's rulings in this case are the most often cited in the area of electronic discovery, and were issued prior to the 2006 amendments to the Federal Rules of Civil Procedure. That’s somewhat like establishing laws before the Ten Commandments!  The important opinions related to eDiscovery are commonly known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V.  Here is a summary of each of those opinions:

Zubulake v. UBS Warburg, 217 F.R.D. 309 (Zubulake I) and Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III)

The plaintiff argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email, but the plaintiff produced approximately 450 pages of email correspondence on her own. To address the discrepancy, the plaintiff requested for UBS to locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002). In May 2003, the court ruled stating that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format". The court determined that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic media, as follows:

  1. Online data, including hard disks;
  2. Near-line data, including optical disks;
  3. Offline storage, such as magnetic tapes;
  4. Backup tapes;
  5. Fragmented, erased and damaged data.

The last two categories were considered inaccessible as they were not readily available and thus subject to cost-shifting. Discussing the Rowe decision, the court concluded that it needed modification and created a new seven factor balance test for cost-shifting:

  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.

The defendant was ordered to produce, at its own expense, all responsive email existing on its servers, optical disks, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

In July 2003, Zubulake III applied the cost-shifting test outlined in Zubulake I based on the sample recovery of data from five backup tapes.  After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimated costs for production was $273,649, including attorney and paralegal review costs. After applying the seven factor test, it determined that the defendant should account for 75 percent of the restoration and searching costs, excluding attorney review costs.

Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV)

During the restoration effort, the parties discovered that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes and also sought an adverse inference instruction against UBS and the costs for re-deposing some individuals required because of the destruction of evidence.

In October 2003, Judge Scheindlin found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, at the time, she concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. But, she did order the defendant to cover the costs as claimed by the plaintiff.

Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (Zubulake V)

In July 2004, Judge Scheindlin ruled that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for adverse inference instruction sanctions, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case.

The court also indicated that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched" by ensuring all relevant documents are discovered, retained, and produced and that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.

In the final instructions to the jury Judge Scheindlin instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, monetary sanctions were awarded to the plaintiff for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in the plaintiff’s favor on both claims awarding compensatory and punitive awards totaling $29.2 million.

Judge Scheindlin’s opinions in Zubulake, including definitions of accessible and inaccessible data, the seven factor balance test for cost shifting and definition of counsel’s obligation for preserving data, have been referenced in numerous cases since and have provided guidance to organizations preparing for litigation.  For any of you who may not have fully understood the significance of the case, I hope this look back was helpful.

So, what do you think?  Did you learn something new about Zubulake?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Plaintiff Not Compelled To Turn Over Facebook Login Information
 

In Davids v. Novartis Pharm. Corp., No. CV06-0431, (E.D.N.Y. February 24, 2012), the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

Plaintiff claimed ongoing suffering from osteonecrosis of the jaw (a severe bone disease that affects the maxilla and the mandible) against the defendant. Defendant served Plaintiff with its Second Set of Requests for Production of Documents, which requested Plaintiff’s log-in information to all of her social-networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.  In responding to the request, the Plaintiff only produced materials that were available to all Facebook users — not items hidden through Facebook’s privacy settings — claiming that the request was overbroad and a fishing expedition. As a result, the Defendant filed a motion to compel the Plaintiff to turn over her login information, including login for Facebook.

Why did the Defendant request the additional access?  As noted in the transcript:

“Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition.”

In the process of determining whether the Defendant could compel such discovery, Magistrate Judge William Wall first noted that “[n]o cases in the Second Circuit or the Eastern District of New York have directly addressed this issue”.  The Defendant based its argument on two cases where access to social media information was granted: Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) and Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010).  In both cases, “publically available content on the individual plaintiffs’ public Facebook profiles provided sufficient relevant information for the courts to infer that further discovery was necessary”; however, as the court noted in this case, “no such evidence exists”.  Therefore, the court ruled as follows:

“Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.”

As a result, the court denied the defendant’s motion to compel.

So, what do you think?  Was the lack of publically available content sufficient justification for not granting the motion to compel?  Or should this case have been handled in the same manner as Largent and Romano?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: eDiscovery Violations Leave Delta Holding the Bag
 

In the case In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 41-43 (N.D. Ga. Feb. 3, 2012), U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

Plaintiffs asserted that Delta did not conduct a reasonable inquiry to confirm its implicit representations that (1) all of the relevant hard drives had been processed, and (2) there were no missing back-up tapes. Arguing that Delta should have ensured that all sources of discoverable information were identified and searched and searched in the evidence locker, Plaintiffs contended that Delta falsely certified that its discovery responses were correct and complete. As a result, Plaintiffs contended that the case had been “unnecessarily delayed and its costs unnecessarily increased, and the fact that Delta is now producing these documents is immaterial”.

The Court agreed, noting:

“The Court finds that Delta did not conduct a reasonable inquiry. With respect to the collected but unsearched hard drives, Delta has not substantially justified its failure to ensure the drives were run through Clearwell and searched back in 2009. While its counsel did email {Delta’s IT Group} CSIRT a list of custodians whose hard drives should have been loaded onto Clearwell, CSIRT did not respond with confirmation that each listed person’s drive was on the system; CSIRT only stated that files were identified by “user employee id, not by name.” Delta has not shown that it ever confirmed with CSIRT that each hard drive that was supposed to be run through Clearwell actually had been. This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed through Clearwell and searched.”

Judge Batten determined that Delta had violated FRCP 26(g) early disclosure requirements and failed to supplement discovery, justifying sanctions under FRCP 37(c)(1). Ruling that Delta needed to pay plaintiffs’ fees and costs in bringing the discovery motions and for extended discovery activities, Judge Batten strongly suggested that both sides meet and confer to attempt to agree to those fees and costs.  However, Judge Batten found that Delta would not be sanctioned with the exclusion of the late production, because Delta: 1) Informed the Court and Plaintiffs after they discovered the issue; 2) Requested the Court suspend the case schedule; and 3) There was no evidence the Defendants willfully withheld the discovery.

So, what do you think?  Were the sanctions justified?  Or should more sanctions have been applied?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: At The Eleventh Hour, Encrypted Hard Drive Is Decrypted
 

In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that a woman must produce an unencrypted version of her Toshiba laptop's hard drive to prosecutors in a mortgage fraud case for police inspection.  The woman, Ramona Fricosu, had argued that the Fifth Amendment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop and seized when investigators served a search warrant on her home.

In providing his ruling, Judge Blackburn referenced In re Grand Jury Subpoena to Boucher in which a password protected laptop was seized. After an initial magistrate judge ruling finding that the defendant could not be compelled to reveal the contents of his mind (via the password), the grand jury requested (which a Vermont District judge granted) to require the defendant to produce, not the password itself, but rather an unencrypted version of the drive.

While Judge Blackburn ruled that Fricosu was required to provide the government in this case with an unencrypted copy of the Toshiba laptop computer’s hard drive, he also ruled that the government would be “precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution”.

Still, the defendant appealed.  On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu's case must first be resolved in District Court before her attorney can appeal.  She would have been required to turn over the unencrypted contents of the drive as of March 1.

However, at the last minute, Colorado federal authorities decrypted the laptop.  “They must have used or found successful one of the passwords the co-defendant (Scott Whatcott) provided them,” Fricosu’s attorney, Philip Dubois, said in a telephone interview.  Dubois said the authorities delivered to him a copy of the information they discovered on the drive, but he said he had not examined it.

So, what do you think?  Will disclosure of the password preclude a later appeal?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP, Part Two
 

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm's National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here's the rest of the interview!

Are there any other key trends you see?  Is there anything else interesting in terms of the trends you see here at LegalTech, at least as far as the curriculum goes?

[Interviewed the first morning, before the show began]  In all candor, the show hasn't begun yet, so I haven't seen anything.  I'm doing four presentations on predictive coding and one with Craig Ball, which I'm looking forward to.  I hope I don't suffer too bad of a public humiliation by Master Ball. 

But, you know, the keynote speech that's getting ready to start is on ethics, and I see a lot of ethics in the curriculum.  I'm pleased by that.  I do lecture a lot on eDiscovery ethics, and I think it comes down to fundamentally what we are doing with discovery.  Are we, as legal practitioners, willing to stop playing “hide the ball”, stop all this nonsense and waste of money, and get down to actually finding the key facts and getting them out there quickly?  That's always been my attitude, but I was lucky – I was brought up in a firm that really put ethics first and money second.  But, there are a lot of people out there for which money's first, and ethics is a gray area.

Ethics is not a gray area.  We're supposed to try and get the case resolved and save money for our clients.  That's rule one.  Just do it speedy and inexpensively.  A lot of lawyers, say, “yeah, right” and that's how they make a living.  Well, shame on them.

You don’t make a living by exploiting your clients.  You make a living by winning cases, and sometimes the best way to win a case is to settle it when you realize the facts are against you – not to try to change the facts or hide the facts.  So that's ethics.  Most clients want ethical lawyers like that.

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

I'm doing a lot of law firm training.  I do that internally and, since my current law firm specializes in labor and employment only, we're not really a competitor to most law firms.  So, we actually can offer a service to help train other law firms in eDiscovery.

I'm also now doing a lot of training for our corporate clients.  We represent Fortune 500 type companies, and it's important for those companies to be prepared for eDiscovery.  Now that we’re coming out of the recession, companies can spend the money needed to get ready for litigation and eDiscovery that they put off before, because of other priorities.  Companies are now saying “I want to finally get my e-mail retention policy in order.  I want to figure out how to get a litigation hold implemented in my company without causing all kinds of disruption and chaos and confusion and expense.”

It just takes preparation.  It takes time.  The fundamental way to do that is to set up your own internal team, eDiscovery team.  That's one of the main ideas that I've been talking about for six years now when I started my blog, e-Discovery Team®, is the joint approach of people working together.  Get the IT people, the law people and the management people working together as teams for – in this case – litigation readiness.

It can cost a fair amount of money to do it right.  But, if you spend $100,000 now to get ready and get your systems in order, you can save yourself millions later on and also save yourself the embarrassment of making a mistake, of being found out to be a spoliator.  There are plenty of examples where it makes sense to spend a little money up front to save more money down the road.  So, I want to encourage companies to think about that, whether they use me or somebody else.  There are a number of attorneys that provide those services, and it's money well spent.  Pay me a little bit now or pay me a lot later.

Ten years ago, when Cisco was probably the first company in the country to form their own eDiscovery team, it was after they faced hundreds of investor law suits.  They found that by forming their own eDiscovery team, they reduced their litigation expenses by 90 percent because most of their litigation expenses were related to eDiscovery.  While I'm not promising you'll save 90 percent like Cisco did, I am saying it's a well-established fact that spending a little money up front to prepare will help you save costs in the long run.

I'd also like point out to people the other program that I've developed, which I call eDiscovery team training.  And you'll also find that on the web, at e-Discovery Team Training.  I took what I had developed in law school in teaching eDiscovery to law students for the past three or four years, and I developed an online program with the University of Florida, School of Law.  With their permission, I developed my own private version of that, which is actually much longer and harder than what I taught to law students.  Law students had to take it in two months.

So, I've developed a program that built on that, which you can take up to two years to complete.  It's 75 hours of work to go through the training program and it's all online.  It has homework assignments at the end for additional reading and presents different essays, hypertext-type writings and videos.  It takes advantage of the power of online education, which I really think is more the future than these expensive, face-to-face education programs, like we have at LegalTech.

There are still a few events that I'll go to each year (like LegalTech and the Sedona Conference), and then I'll train inside corporations or in my own law firm.  The fact that most lawyers aren't doing eDiscovery is not because they're trying to do anything wrong or hide the truth.  They simply don't know how.  And if you teach them how to do it, they'll do it.  This is against a lot of vendors' models – they would rather serve a nice fish dinner.  I'm more into teaching people how to fish so that they can feed themselves, and that's what I go around trying to do.

Thanks, Ralph, 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: Ralph Losey of Jackson Lewis, LLP
 

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm's National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  So, today is part one.  Part two will be published in the blog tomorrow!

Many people are saying that 2012 is the year of technology assisted review.  What do you think needs to happen for that to come true?

Well, many things.  First of all, we need to have better training for lawyers so that they'll know how to use the technology.  If you bring an advanced computer to anyone, they're going to need some kind of instruction on how to use it.  You have to have people trained to use the tools.  That's very important and I spend a lot of time focusing on training in my firm and around the country to other attorneys and bar groups.  The tool alone really can't do much or help you unless you fit in the use of it into a larger, legal methodology.

In other words, just bringing in technology in itself doesn't answer any questions.  It may answer some, but it doesn't give you the answers you need in order to use it in your practice.

I'm a legal practitioner.  I've been practicing law, for, I guess about 32 years now.  So, that's how I look at technology – as tools to practice law and represent clients.  And, the truth is most people don't know how to use predictive coding yet, so we're going to have a training and learning curve like you do with any new technology.

Vendors also need to start bringing the prices down so that it's more affordable and make it accessible to a large number of attorneys, rather than just a few attorneys that can afford to handle it in large cases.  I've been complaining about this to vendors for a while now.  The good news is I think that they're listening.  I'm beginning to see prices come down and I think this trend will continue.  It's in their own best interest to do that because in the long run, they are going to be more successful in bringing this technology to attorneys and making money for their companies if they look at more of a large scale, larger volume, lower profit as opposed to making larger amounts of profit and fewer projects.

I think most of the vendors are receptive to that.  The reason they probably just don't jump on it right away is the demand isn’t there yet.  Build it and they will come.  But, they're only coming in small numbers.  When they're only coming in small numbers in order to pay for their business, they have to charge a lot.

So, it's a circle.  It comes back again to training.  An educated consumer will want this.  I want this.  I like it, and I want it affordable.

Do you think that it's just merely a matter of bringing prices down?  Or is it being creative in how you price differently?

Well, it's both.  The bottom line is always the bottom line, but it’s important to get there in a way that's win-win for both the consumer (law firms and corporate law departments) and for the provider.  So, there needs to be creative solutions.  As a result, I think people are now “putting on their thinking caps” and coming up with new ways to price solutions because there are different needs.  I have my own ideas on how I want to use it, and so I want people to price accordingly.  I don't want there to be a “one-size-fits-all” type of solution.  I think the vendors are hearing that, too.

You had a recent blog post about bottom line proportional review and you noted that the larger cases have a lot at stake, so the budget is much higher.  How does it work for smaller cases?

It's going to take a legal method, and I think that the method I described (bottom line proportional review) is the way to make it happen.  In order to make bottom line driven review (where you're basically setting a budget up front) to be acceptable to the requesting party, they're going to want to make sure that this isn't just another way to “hide the ball”.  They're going to want to make sure that they can find the relevant evidence that they need to evaluate their case to either see that they've got a winning case (so they can move for a summary-judgment, establish a strong settlement position, or go to trial) or see that they have a weak case and value it accordingly.

We all want to find out as quickly as possible how good a case it is.  We really don't want to spend all of our time and money just doing discovery.  The whole point of discovery is to discover how good your case is and then resolve it.

I'm very oriented to resolving cases.  That's really most of my life.  I wasn't an eDiscovery lawyer most of my career.  I was a trial lawyer, and I think that perspective is lacking from some of the vendors and some of the analysts and some of the other people in eDiscovery.  People seem to think discovery is an end in itself.  It's not.  It's just a way to prepare for trial.

So, there is no reason to get all of the relevant evidence.  That's an archaic notion of the past.  There's too much relevant evidence.  All that counts is the important relevant evidence.  The smoking guns are what counts.  The highly relevant or hot documents are what counts.

You do have to wade through some relevant documents to get there, but the point is to get there.  It gets back to my “seven plus or minus two” rule.  It's not my rule.  It's an old rule of persuasion.  That's never going to change.  People are never going to remember more than seven documents at a trial.  They just can't.  The juror's mind is not capable of it.

Lawyers can handle probably several hundred exhibits, and they can keep it in their head.  But, they don't make the decisions.  And, the several hundred exhibits are merely predicates or evidentiary foundations in order to get the key exhibits out there that you then use in your closing argument.

The point of discovery and litigation is to identify and locate these key documents.  When you understand that, then you'll accept and understand the fact that you don't need all relevant information, all relevant documents.  You just need the most highly relevant documents so that you can feel pretty confident you've got the handful of documents you need to try the case.

The thing that’s exciting about predictive coding is its ranking abilities.  You don't have to look at the junk that's not really that relevant.  You only look at the most relevant documents, whether it’s the most relevant 5,000, 50,000 or 100,000.  Whatever it is that's appropriate to your size case.  You're not going to look at 100,000 documents in a $250,000 dollar discrimination case.  It makes no sense.

That's where you get back to proportionality.  It's a somewhat long answer to your question, but people need to understand that this isn't a way to hide the truth.  It's really a way to get the truth out there in an efficient, economic manner.

So, based on the five dollar per document review cost example in your post, if you have $25,000 to spend, you can review the top 5,000 documents, right?

That's right.  And the five dollars is just like a working number that you use.  Some document collections can be even more expensive and difficult.  For example, a collection with a lot of 20-page spreadsheets (where you actually determine what's confidential and what's not in each sheet) can drive that number up.  Banking cases are a nightmare.  You've got all this financial information, where some of it's relevant and some of it's not.  For other cases, it can be a lot cheaper.  But, you also have to take some vendor claims with a big grain of salt.  “Oh, I'll do your whole thing for you for a buck a document.”  Will you?  Really?  What does that include?

Thanks, Ralph, for participating in the interview!

And to the readers, just a reminder that part two of our interview with Ralph Losey will be published tomorrow.  Don't miss it!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols
 

Criminal attorneys, are you discouraged that there is a lack of eDiscovery rules and guidelines for criminal cases?  If you work for the Department of Justice or other related law enforcement agencies, cheer up!

As noted in the Law Technology News article, DOJ Lays Down the Law on Criminal E-Discovery Protocols, written by Evan Koblentz, the government's Joint Electronic Technology Working Group (JETWG), led by the DOJ, unveiled its best practices guide for eDiscovery at a federal software summit in Washington on February 10.  The 21 page document, “intended for cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case”, primarily consists of three sections:

  • Recommendations for ESI Discovery in Federal Criminal Cases: Provides a general framework for managing ESI, including planning, production, transmission, dispute resolution, and security;
  • Strategies and Commentary on ESI Discovery in Federal Criminal Cases: Provide more detailed guidance for implementing the recommendations – this section will evolve to reflect experiences in actual cases; and
  • ESI Discovery Checklist: One page checklist for addressing ESI production issues.

While the one page checklist has several items that would apply to any case, there are some items specific to criminal cases that would make it a handy reference for conducting eDiscovery on those cases.  The three sections are based on ten basic principles, which should have familiarity to those who have been dealing with eDiscovery in civil cases.  They are as follows:

  1. Lawyers have a responsibility to have an adequate understanding of electronic discovery.
  2. In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
  3. At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.
  4. The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.
  5. When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
  6. Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
  7. The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
  8. In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.
  9. The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
  10. All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Evan’s article provides comments from Andrew Goldsmith, the national criminal eDiscovery coordinator, regarding the efforts and intent of the document and training program for DOJ attorneys and other law enforcement personnel, as well as efforts of the department to determine how to apply commercial, civil litigation oriented, eDiscovery software to criminal cases.  It’s a good read and the guidelines look promising as a resource for criminal attorneys to manage eDiscovery in those cases.

So, what do you think?  Do these guidelines show promise for eDiscovery in criminal cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Best Practices: Google’s Blunder Keeps Them Under the (Smoking) Gun

As we noted back in November, a mistake made by Google during discovery in its lawsuit with Oracle could cost the company dearly, perhaps billions.  Here’s a brief recap of the case:

Google is currently involved in a lawsuit with Oracle over license fees associated with Java, which forms a critical part of Google’s Android operating system.  Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.

Despite the use of search technology to cull down a typically large ESI population, a key email, written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google, was produced that could prove damaging to their case.  With the threat of litigation from Oracle looming, 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; however, 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 produced to Oracle.

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 and despite Google’s motion to “clawback” the email on the grounds it was “unintentionally produced privileged material”, Alsup refused to exclude the document at trial.  Google next filed a petition for a writ of mandamus with the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., seeking to have the appeals court overrule Alsup’s decision permitting Oracle to use the email as evidence in the trial.

On February 6, the Federal Circuit upheld Alsup’s ruling that the email is not privileged, denying Google’s mandamus petition. Observing that the email was written at the request of Google’s co-founders, Larry Page and Sergey Brin (who are not lawyers) and did not refer specifically to legal advice or the senior counsel’s investigation, the appeals court rejected Google’s petition.

As we noted before, 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 and not produced.

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.

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

eDiscovery Case Law: Burn Your Computer and the Court Will Burn You
 

In Evans v. Mobile Cnty. Health Dept., No. CA 10-0600-WS-C, (S.D. Ala. Jan. 24, 2012), Alabama Magistrate Judge William Cassady granted a motion for sanctions, including an adverse inference instruction, where the plaintiff had burned and destroyed her computer that she used during the time she claimed she was harassed.

Evans sued the Mobile County Health Department alleging reverse discrimination. The court entered a scheduling order that instructed Evans to preserve all relevant information. In discovery, the health department asked Evans for all documents, including electronically stored information (ESI), related to her claims.

Initially, Evans did not produce any documents in response to the defendant's request, but at her deposition, she produced a small number of documents and admitted that she had others, including e-mails. After her deposition, the defendant renewed its request for Evans to produce all ESI in her possession and asked to inspect her personal computer. When the plaintiff did not comply, the defendant filed a motion to compel.

After the motion was filed, Evans' counsel told the defendant that Evans had destroyed her computer. Evans explained that her computer crashed about eight months after her complaint was filed. When she sought help from computer experts, who told her to buy another computer, she burned her computer to destroy the personal information it contained due to the "threat of identity theft." She then bought a new computer. The defendant filed a motion for sanctions and sought dismissal of the case.

Judge Cassady granted the defendant's motion to compel, finding that the plaintiff's claims that she had produced all relevant ESI difficult to believe in light of her deposition testimony and her other discovery violations. Accordingly, Judge Cassady required Evans to produce e-mails from her gmail account and a notebook she referenced in her deposition that contained relevant evidence. The plaintiff also had to produce her new computer for inspection and pay for the defendant's fees and costs in bringing the motion.

Judge Cassady also granted defendant's request for sanctions. In determining the appropriate punishment, he looked first to Eleventh Circuit law, but the court had not set forth specific guidelines for the imposition of sanctions. Therefore, Judge Cassady applied Alabama state law, since it was consistent with general federal spoliation standards. Alabama law requires courts to consider five factors in analyzing a request for sanctions: "(1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information obtainable from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal."

Judge Cassady found that Evans had destroyed the evidence in bad faith: her culpability was "excessively high." However, the judge stopped short of dismissing the case. Since the defendant could still defend itself against Evans' allegations, the magistrate judge decided that the court would give the jury an adverse inference instruction at trial. It also awarded defendant its attorneys' fees and costs for the motion.

So, what do you think?  Should the case have been dismissed or were the sanctions sufficient?  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.