Privileged Archives

eDiscovery Trends: International Trade Commission Considers Proportionality Proposal

February 13, 2012

As eDiscovery costs continue to escalate, proposals to bring proportionality to the eDiscovery process have become increasingly popular, such as this model order to limit eDiscovery in patent cases proposed by Federal Circuit Chief Judge Randall Rader last year (which was adopted for use in this case). In January, Chief Judge Rader and three members of the Council (Council Chairman Ed Reines of Weil, Tina Chappell of Intel Corporation, and John Whealan, Associate Dean of Intellectual Property Studies at the George Washington University School of Law) presented a proposal to the U.S. International Trade Commission (USITC) to streamline eDiscovery in section 337 investigations.

Under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), the USITC conducts investigations into allegations of certain unfair practices in import trade. Section 337 declares the infringement of certain statutory intellectual property rights and other forms of unfair competition in import trade to be unlawful practices. Most Section 337 investigations involve allegations of patent or registered trademark infringement.

The proposal tracks the approach of the district court eDiscovery model order that is being adopted in several district courts and under consideration in others. Chairman Reines described the proposal as flexible, reasonably simple, and easy to administer. Under the proposal, litigants would:

Indicate whether ESI such as email is being sought or not;
Presumptively limit the number of custodians whose files will be searched, the locations of those documents, and the search terms that will be used (if litigants exceed the specified limits, they would assume the additional costs);
Use focused search terms limited to specific contested issues; and
Allow privileged documents to be exchanged without losing privilege.

For more regarding the regarding the USITC proposal to streamline eDiscovery in section 337 investigations, including reactions from USITC members, click to see the USITC press release here.

So, what do you think? 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: Preparing Your 30(b)(6) Witnesses

February 8, 2012

When it comes to questions and potential issues that the receiving party may have about the discovery process of the producing party, one of the most common and direct methods for conducting “discovery about the discovery” is a deposition under Federal Rule 30(b)(6). This rule enables a party to serve a deposition notice on the entity involved in the litigation rather than an individual. The notice identifies the topics to be covered in the deposition, and the entity being deposed must designate one or more people qualified to answer questions on the identified topics.

While those designated to testify may not necessarily have day-to-day responsibility related to the identified topics, they must be educated enough in those issues to sufficiently address them during the testimony. Serving a deposition notice on the entity under Federal Rule 30(b)(6) saves the deposing party from having to identify specific individual(s) to depose while still enabling the topics to be fully explored in a single deposition.

Topics to be covered in a 30(b)(6) deposition can vary widely, depending on the facts and circumstances of the case. However, there are some typical topics that the deponent(s) should be prepared to address.

Legal Hold Process: Perhaps the most common area of focus in a 30(b)(6) deposition is the legal hold process as spoliation of data can occur when the legal hold process is unsound and data spoliation is the most common cause of sanctions resulting from the eDiscovery process. Issues to address include:

General description of the legal hold process including all details of that policy and specific steps that were taken in this case to effectuate a hold.
Timing of issuing the legal hold and to whom it was issued.
Substance of the legal hold communication (if the communication is not considered privileged).
Process for selecting sources for legal hold, identification of sources that were eliminated from legal hold, and a description of the rationale behind those decisions.
Tracking and follow-up with the legal hold sources to ensure understanding and compliance with the hold process.
Whether there are any processes in place in the company to automatically delete data and, if so, what steps were taken to disable them and when were those steps taken?

Collection Process: Logically, the next eDiscovery step discussed in the 30(b)(6) deposition is the process for collecting preserved data:

Method of collecting ESI for review, including whether the method preserved all relevant metadata intact.
Chain of custody tracking from origination to destination.

Searching and Culling: Once the ESI is collected, the methods for conducting searches and culling the collection down for review must be discussed:

Method used to cull the ESI prior to review, including the tools used, the search criteria for inclusion in review and how the search criteria was developed (including potential use of subject matter experts to flush out search terms).
Process for testing and refining search terms used.

Review Process: The 30(b)(6) witness(es) should be prepared to fully describe the review process, including:

Methods to conduct review of the ESI including review application(s) used and workflow associated with the review process.
Use of technology to assist with the review, such as clustering, predictive coding, duplicate and near-duplicate identification.
To the extent the process can be described, methodology for identifying and documenting privileged ESI on the privilege log (this methodology may be important if the producing party may request to “claw back” any inadvertently produced privileged ESI).
Personnel employed to conduct ESI review, including their qualifications, experience, and training.

Production Process: Information regarding the production process, including:

Methodology for organizing and verifying the production, including confirmation of file counts and spot QC checks of produced files for content.
The total volume of ESI collected, reviewed, and produced.

Depending on the specifics of the case and discovery efforts, there may be further topics to be addressed to ensure that the producing party has met its preservation and discovery obligations.

So, what do you think? Have you had to prepare 30(b)(6) witnesses for deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Fifth Amendment Doesn’t Extend to Encrypted Hard Drives – Or Does It?

January 27, 2012

In the case U.S. v. Fricosu, Colorado district judge Robert Blackburn has 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.

The day the search warrant was carried, Fricosu spoke with her imprisoned ex-husband Scott (indicted with Fricosu in the case) by phone. The conversation was recorded, and Fricosu implied that relevant information could be found on the encrypted laptop:

Scott: (SC [simultaneous conversation]) oh yeah that’s right it was on your laptop wasn’t it

Ramona: I think so but I’m not sure

Scott: OK

Ramona: yeah cause they kept asking me for passwords and I said, ya know no I just didn’t answer them

Scott: right (SC). Because when you went there you took your laptop

Ramona: yeah I think so I think I did

Scott: and so (SC) it would been on there

Ramona: yeah

Scott: OK

Ramona: and my lawyer said I’m not obligated by law to give them any passwords or anything they need to figure things out for themselves

Based on this conversation, the government sought a warrant under the “All Writs Act, 28 U.S.C. § 1651, requiring Ms. Fricosu to produce the unencrypted contents of the computer.” Fricosu declined, “asserting her privilege against self-incrimination under the Fifth Amendment”.

In providing his ruling, Judge Blackburn referenced In re Grand Jury Subpoena to Boucher in which child pornography was identified on the defendant’s laptop during a border search in Vermont. When the laptop was later seized, it was determined to be password protected. A magistrate judge initially sided with the defendant finding that he could not be compelled to reveal the contents of his mind, which is what the act of producing the password would be. Revising the grand jury’s request to require the defendant to produce, not the password itself, but rather an unencrypted version of the drive, a Vermont District judge granted that request.

With that case as precedent, 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. However, Judge Blackburn 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”.

Fricosu’s attorney has indicated he plans to appeal the ruling and noted that his client may not even be able to decrypt the hard drive, stating “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do”.

So, what do you think? Should production of the hard drive have been compelled? Does the preclusion from using evidence from the hard drive against her in prosecution address any Fifth Amendment concerns? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Via Rule 45 Subpoena, Plaintiff Allowed to Search Non-Party Personal Hard Drive

January 16, 2012

A party can subpoena a nonparty to provide a personal computer for the forensic review of electronically stored information (ESI) under Rule 45 of the Federal Rules of Civil Procedure.

In Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, (E.D.N.C. Dec. 22, 2011), a former police chief alleged his former employer unfairly terminated him because of his age under the Age Discrimination in Employment Act. During discovery, the plaintiff sent a non-party subpoena to the former town hall manager, who the plaintiff claimed was responsible for his termination. In the subpoena, the plaintiff asked that the former town manager make his personal computer available for a search by a forensic expert using agreed-upon search terms. He also offered to pay for the cost of the search, excluding any privilege review that the town manager wanted to conduct.

The town manager objected to the subpoena and attempted to modify it, claiming the search would be expensive, would be time-consuming, and would invade his privacy. He also claimed he did not use his personal computer for work. He offered to search the computer himself and provide any documents that were responsive to the plaintiff’s requests in the subpoena.

The court reviewed Rule 45 of the Federal Rules of Civil Procedure, which required it to balance three factors in deciding whether to modify or quash a subpoena: (1) the relevance of the information sought, (2) the plaintiff’s need for the information, and (3) the potential hardship to the non-party. In doing so, it concluded that the plaintiff’s narrow request for “non-privileged documents identified by an electronic search for key words related to the claims and defenses asserted by the parties” was reasonable. The court also noted that “in this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices.” Therefore, it was reasonable to expect to find relevant ESI on the town manager’s computer. Finally, the fact that the plaintiff assumed all of the costs except the privilege review minimized the burden on the town manager.

The court also noted that the subpoena’s requests were limited to tangible documents, not including ESI, and would thus not “encompass the information sought by the request to search [the town manager’s] hard drive.”

Therefore, it ruled that the subpoena was proper but modified it to clarify that the plaintiff was not entitled to the complete contents of the hard drive—just to those responsive to the search terms that were neither privileged nor confidential.

So, what do you think? Should the search have been allowed? 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).

eDiscovery Year in Review: eDiscovery Case Law, Part 2

January 4, 2012

As we noted yesterday, 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 eDiscovery cost reimbursement, form of production and international discovery issues. But, there’s many more cases to recap. As Lt. Col Frank Slade would say, “I’m just getting warmed up”. Whoo Ah!

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

PRIVILEGE / INADVERTENT DISCLOSURES

Decisions regarding what information is privileged and whether privilege is waived when inadvertent disclosures occur is always a hot issue for debate. That was no different in 2011. And, if you receive an inadvertent disclosure and don’t disclose it, you can get kicked off the case. Here are five cases related to privilege and inadvertent disclosures:

Privilege Waived for Produced Servers. Fontainebleau Resort, LLC (FRLLC) produced two servers without conducting any review of the materials, at least one of which had previously been produced to other banks involved in the underlying litigation. Would they be required to waive privilege on those servers?

When is Attorney-Client Communication NOT Privileged? One answer: When it’s from your work email account, and your employer has a written policy that company email is not private and subject to audit. Oh, and you’re suing your employer.

Read Inadvertent Email, Get Disqualified from Case. Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case. In this case, the court disqualified defendant’s in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs’ counsel to the defendant and shared with defendant’s outside counsel.

Defendants’ Privilege Waived for “Completely Ineffective” Discovery Procedures. In a case over purported building and zoning code violations, an Illinois District Court has found the defendants responsible for inadvertently producing several privileged documents during discovery and for a failure to correct the problem in a timely manner, and has ordered the privilege to be waived.

Court Rules Against Exclusion of Privileged Email. A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant’s actions before and after the discovery of the email’s production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

PROPORTIONALITY

With the explosion of data in the world and rising costs for preserving, collecting, reviewing and producing that data, it’s not surprising that eDiscovery costs are spiraling upward, causing many to cry “uncle” and making the word “proportionality” become quite trendy, with parties and even courts. Here are four cases where proportionality of eDiscovery was an issue. Oh, and if you can’t complete production until after the trial is over, that’s probably too late.

Completing Production AFTER Trial is Too Late. In this case, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia denied the defendant’s request for consideration that the District had waived all objections, including privileges, and ordered production within one week of the close of trial. In denying the motion, the court likened the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes.”

KPMG Denied in Request for “Proportionality Test” to Preservation. In this case, KPMG sought a protective order to narrow its preservation obligation scope to only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. With that request in hand, the court considered KPMG’s request for proportionality as it applied to its preservation obligations.

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

Plaintiff Not Required to Review Millions of Pages of Unallocated Space. In this case, the court affirmed the Magistrate Judge’s order which excused plaintiff from having to review and produce millions of pages of documents recovered from unallocated space files due to the extreme burden and cost to do so.

EDISCOVERY SERVICE DISPUTES

It’s a darn shame when law firms can’t get along with their corporate clients or with the vendors they hired. Perhaps the most discussed case of the year was the eDiscovery malpractice case involving McDermott, Will & Emery, with posts in eDiscovery Daily here, here and here. Here are two cases where the actual eDiscovery services being provided were in dispute:

eDiscovery Malpractice Case Highlights Expectation of Higher Standards. Having noted in eDiscovery Daily that competency ethics are no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain, this case may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.

Sometimes the Vendor Sues the Law Firm – And Wins! The eDiscovery malpractice case involving McDermott, Will & Emery associated with inadvertent production of 3,900 privileged documents has captured considerable interest in the industry and this blog. Sometimes, the “shoe is on the other foot”, so to speak.

Tune in tomorrow for more key cases of 2011 and see the topic that continues to generate more case law related to eDiscovery than any other!

So, what do you think? Did you miss any of these? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: When is it OK to Produce without Linear Review?

December 13, 2011

At eDiscoveryDaily, the title of our daily post usually reflects some eDiscovery news and/or analysis that we are providing our readers. However, based on a comment I received from a colleague last week, I thought I would ask a thought provoking question for this post.

There was an interesting post in the EDD Update blog a few days ago entitled Ediscovery Production Without Review, written by Albert Barsocchini, Esq. The post noted that due to “[a]dvanced analytics, judicial acceptance of computer aided coding, claw back/quick-peek agreements, and aggressive use of Rule 16 hearings”, many attorneys are choosing to produce responsive ESI without spending time and money on a final linear review.

A colleague of mine sent me an email with a link to the post and stated, “I would not hire a firm if I knew they were producing without a doc by doc review.”

Really? What if:

You collected the equivalent of 10 million pages* and still had 1.2 million potentially responsive pages after early data assessment/first pass review? (reducing 88% of the population, which is a very high culling percentage in most cases)
And your review team could review 60 pages per hour, requiring 20,000 hours to complete the responsiveness review?
And their average rate was a very reasonable $75 per hour to review, resulting in a total cost of $1.5 million to perform a doc by doc review?
And you had a clawback agreement in place so that you could claw back any inadvertently produced privileged files?

“Would you insist on a doc by doc review then?”, I asked.

Let’s face it, $1.5 million is a lot of money. That may seem like an inordinate amount of money to spend on linear review and the data volume for some large cases may be so voluminous that an effective argument might be made to rely on technology to identify the files to produce.

On the other hand, if you’re a company like Google and you inadvertently produced a document in a case potentially worth billions of dollars, $1.5 million doesn’t seem near as big an amount to spend given the risk associated with potential mistakes. Also, as the Google case and this case illustrate, there are no guarantees with regards to the ability to claw back inadvertently produced files. The cost of linear review will, especially in larger cases, need to be weighed against the potential risk of not conducting that review for the organization to determine what’s the best approach for them.

So, what do you think? Do you produce in cases where not all of the responsive documents are reviewed before production? Are there criteria that you use to determine when to conduct or forego linear review? Please share any comments you might have or if you’d like to know more about a particular topic.

*I used pages in the example to provide a frame of reference to which most attorneys can relate. While 10 million pages may seem like a large collection, at an average of 50,000 pages per GB, that is only 200 total GB. Many laptops and desktops these days have a drive that big, if not larger. Depending on your review approach, most, if not all, original native files would probably never be converted to a standard paginated document format (i.e., TIFF or PDF). So, it is unlikely that the total page count of the collection would ever be truly known.

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

December 1, 2011

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 Case Law: Facebook Content Discoverable Yet Again

November 23, 2011

It seems most, if not all, of the cases these days where discoverability of social media is at issue are being decided by courts in favor of the parties seeking to discover this information. Here’s another example.

In Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011) the court ruled that the plaintiff’s Facebook information was discoverable as being relevant and not privileged and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days, giving the defendant a 21-day window to inspect the plaintiff’s Facebook profile (after which she was allowed to change her password).

In this case, one of the plaintiffs claimed that a motorcycle accident caused by the defendant left her with chronic physical and mental pain. During a deposition of one of the plaintiffs, the defendant learned that she had a Facebook account and had accessed it as recently as the night before the deposition. The defendant had reason to believe that the plaintiff had posted pictures of herself on Facebook enjoying life with her family as well as a status update about going to the gym. Accordingly, the defendant filed a Motion to Compel, demanding that the plaintiff provide her Facebook username and password to enable the defendant to demonstrate that the plaintiff’s injuries aren’t as bad as she claimed.

The defendant cited two cases where discovery of social network content was granted: Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010). The plaintiffs responded with two cases where courts denied discovery of Facebook material: Piccolo v. Paterson, No. 2009-4979 (Pa. C.P. Bucks May 6, 2011) and Kennedy v. Norfolk S. Corp., No. 100201437 (Pa. C.P. Phila. Jan 15, 2011).

The court considered the following factors in ruling for the defendant:

Relevancy: Since the plaintiff claimed that “she suffers from, among other things, chronic physical and mental pain” and that the defendant claimed that the plaintiff’s “formerly public Facebook account included status updates about exercising at a gym and photographs depicting her with her family that undermine her claim for damages” the court ruled that the information sought by the defendant is “clearly relevant”.
Privilege and Privacy: The court noted that there “is no confidential social networking privilege under existing Pennsylvania law” and that there is “no reasonable expectation of privacy in material posted on Facebook”.
Stored Communications Act of 1986 (SCA): While the SCA places limits on the government’s ability to compel Internet Service Providers (ISPs) to disclose information about their users, only one court has addressed whether Facebook is an entity covered by the SCA: Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010). In that case, it was ruled that the information being sought directly from Facebook (and other social networking sites) was protected under the SCA, but this court ruled that the SCA does not apply in this case because the plaintiff “is not an entity regulated by the SCA.”
Breadth of Discovery Request: The court noted that the plaintiff’s contention that the defendant’s motion is “akin to asking her to turn over all of her private photo albums and requesting to view her personal mail” is “mistaken” as content posted on Facebook is not private. So, such a request would not “cause unreasonable annoyance, embarrassment, oppression, burden or expense” as the cost to investigate the plaintiff’s Facebook information would be borne by the defendant.

As a result, the court ruled in favor of the defendant and ordered the plaintiff to turn over her Facebook login information to the defendant within 14 days. Hopefully, the plaintiff doesn’t resort to tampering with the content on their Facebook page.

So, what do you think? Assuming relevance, should all parties be required to produce social media information? Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from all of us at eDiscovery Daily and CloudNine Discovery!

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

November 15, 2011

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.

eDiscovery Case Law: Court Rules Against Exclusion of Privileged Email

September 26, 2011

“Clawback” of inadvertently produced privileged documents is a hot topic these days, with J-M Manufacturing’s recent clawback request in their case one of the latest examples. For more information on mechanisms for “clawback”, check out our blog posts of the last two days.

A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant’s actions before and after the discovery of the email’s production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

In Williams v. District of Columbia, No. 06-02076 (CKK), 2011 WL 3659308 (D.D.C. Aug. 17, 2011), the court ruled that the burden of preventing disclosure was on the defendant, and that its insufficient follow up showed “indifference,” and has thus denied the defendant’s Motion to Exclude the inadvertently produced email from evidence.

As part of a “recommendation to terminate packet” produced by the defendant, the District of Columbia, in the course of this case, a privileged email was inadvertently included. This email is described as being included in the first ten pages of the packet.
Defendant’s counsel sent an email to plaintiff’s counsel five months later, requesting the return of the email and its exclusion under Rule 26(b)(5)(B). There was neither any form of response from the plaintiff nor follow up from the defendant. Only when the email was introduced as an exhibit, more than two years later, did the defendant file its Motion to Exclude.
The court considered whether the defendant had met the conditions of Rule 26(b)(5)(B) that a party must “discharge its obligations under Rule 502(b)(3),” and concluded that the defense was negligent in not taking enough steps promptly to remedy the mistake. The defendant’s inability to accurately portray its document review methodology or the number and type of documents produced were also cited as reasons that the defense was itself responsible for the waiver of privilege associated with the email in question.
The court found that the defense’s single email request, with no follow up, was inadequate to protect its interest in the privilege of the inadvertently produced email, especially when considered in light of “the approximately two years and eight months before it filed a motion seeking the court’s intervention.”
Accordingly, the court ruled against exclusion of the email under FRE 502(b)(3), stating that, “the only ‘injustice’ in this matter is that done by the defendant to itself…. The District’s failure to make reasonable efforts to guard against the disclosure in the first place and to rectify its error once discovered is fatal to its reliance on Rule 502(b).”

So, what do you think? Was the court fair in assigning fault to the defense, or should the benefit of protection under FRE 502(b)(3) have been accorded the District of Columbia in this case? Have you been involved in a similar case or situation? Please share any comments you might have or if you’d like to know more about a particular topic.

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