Remembering Browning Marean

I was deeply saddened to learn of the passing of Browning Marean. Both Craig Ball and Chris Dale have written very eloquently about Browning. I encourage you to read both of their tributes.

Browning Marean was the senior statesman of eDiscovery. There are few people who had the grace and knowledge of Browning. The man had the voice of a classic radio broadcaster who made audiences stop and listen.

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Browning set the gold standard when it came to giving a presentation. Whether he was moderating a panel discussion, delivering a keynote, or holding court with a judge, his style was unmatched.

To say Browning was an “early adopter” of technology is an understatement. Browning was the geek’s geek. The man loved technology. He joked he liked trying out a product before even the Beta test.

Browning had a natural gift to identify useful new technology. It was Browning who introduced me to Zoom.us, the product I now use for my audio and video podcasts. His one call to tell me about the product made a huge impact on work I do weekly.

I enjoyed my video calls with Browning. He usually greeted me with, “Joshua my good man, how are you?” I am going to greatly miss discussing the law, politics, and life with Browning.

I will never forget my adventures with Browning. He was a gentleman who cared about people, and a lawyer who set a high bar for the rest of us to follow.

Browning was a legend across the entire world of eDiscovery and he will be missed.

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Does Proportionality Disappear If a Lawyer Says “Predictive Coding” Three Times?

The In re Bridgepoint Education case is not one about the merits of predictive coding, but one of proportionality over expanding the scope of discovery by nine months. In re Bridgepoint Educ., 2014 U.S. Dist. LEXIS 108505, 10-11 (S.D. Cal. Aug. 6, 2014). While the cost of document review and the use of predictive coding have a starring role in the opinion, let’s not forget the second discovery dispute in the case ultimately is about proportionality.

The Defendants claimed that expanding the scope of discovery by nine months would increase their review costs by 26% or $390,000 (based on past review efforts in the case). In re Bridgepoint Educ., at *6-7.

Computer-Search-Magic

The Plaintiffs countered that the review costs would more likely be $11,279, because of the predictive coding system the Defendants would use instead of manual review. In re Bridgepoint Educ., at *7.

The Defendants countered that “predictive coding” did not make “manual review” for relevance elective, because the predictive coding software assigned a percentage estimate to each record on the record’s probability of being relevant. Id. As such, attorney review is still required for relevance and privilege review. Id.

The Court denied expanding the scope of discovery by nine months based on the “proportionality” rule of Federal Rule of Civil Procedure Rule 26(b)(2)(C). The Rule states a Court can limit discovery if the “burden or expense of the proposed discovery outweighs the likely benefit.” In re Bridgepoint Educ., at *9-10.

The Court found expanding the scope to be unduly burdensome. Moreover, while there might have been relevant information in the expanded timeframe, the Court agreed with the Defendants that relevant information would be in the originally agreed timeframe. In re Bridgepoint Educ., at *10-11.

Predictive Coding was also at the center of the fourth discovery dispute. The Plaintiffs argued discovery produced from three Individual Defendants should be added to the Defendants’ predictive coding software. In re Bridgepoint Educ., at *12. According to the Plaintiffs, the Defendants “unilaterally-selected search terms” to identify the original production. Id.

The Defendants argued their review process for the original production was reasonable. Moreover, adding the original production to the predictive coding process could “negatively impact the reliability of the predictive coding process.” In re Bridgepoint Educ., at *12-13. However, the Defendants were willing to run additional searches on the Individual Defendants’ production. In re Bridgepoint Educ., at *13.

The Court noted that the Defendants’ linear search methodology for the three Individual Defendants had been approved by the Court. As such, the Court ordered the parties to meet and confer on additional search terms on the original production for the Individual Defendants. Id.

Bow Tie Thoughts

In re Bridgepoint Education is an interesting spin on predictive coding cases, because effectively the REQUESTING party is arguing for the producing party to use predictive coding to reduce proportionality issues.

Businessman managing electronic documentsFirst things first: Saying, “predictive coding” has no magical properties. Nor will review costs decline by getting the opposing party to say Rumpelstiltskin. Even if an attorney is somehow tricked into saying Mister Mxyzptlk’s name backwards in a hearing, a Court will always be concerned about proportionality before expanding the scope of discovery.

Proportionality will always be concerned with cost of review, but discovery review does not exist independent of the case. The scope of discovery should not be expanded because the cost of review can be reduced leveraging advanced search capabilities alone. The issue is whether there are relevant records in the expanded universe and if the “burden or expense of the proposed discovery outweighs the likely benefit.”

Finally, just because one search methodology was used to identify records over another does not devalue the responsiveness of the production. If a requesting party is concerned with the adequacy of a production, challenge it accordingly by showing production gaps or other evidence to demonstrate the production is inadequate.

Don’t Phone in Adverse Inference Allegations

I have a nut on the phoneCan a Plaintiff win adverse inference instructions for the destruction of a phone recording destroyed after a one-year retention policy and whose relevance (or existence) was not known by the Defendants for two years after the event happened?

Short answer is no.

The test for establishing adverse inference instructions for the destruction of evidence is:

(1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;

(2) That the records were destroyed with a culpable state of mind; and

(3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Candy Marcum v. Scioto County, 2014 U.S. Dist. LEXIS 112100, 42-43 (S.D. Ohio Aug. 13, 2014).

The case involved the Plaintiff seeking adverse inference instructions for the recording of a phone call in November 2008. The deceased called his wife from the county jail. The recording was deleted per the one-year document retention.

The Magistrate Judge initially found that the phone recording was destroyed per the Defendant’s document destruction policy, but granted adverse inference instructions because of the Defendants’ “negligence.” The Magistrate Judge looked to the facts that the Sheriff requested an investigation into the death of the victim and the Plaintiff had hired an attorney. Marcum, at *43.

The District Court Judge found these facts did not constitute enough for an adverse inference instruction for the phone recording. The Defendants did not know of the recording, which goes against the “culpable state of mind” requirement for adverse inference instructions. Marcum, at *43-44.

The Plaintiff further declined an interview with the investigator in 2008 and did not notify the Defendant of the existence of the phone call. Moreover, the Plaintiff waited two years to file a lawsuit and request the recording. Marcum, at *44. The existence of the recording was not made until 2010. Id.

The Defendants did retain relevant video, but claimed they never knew of the phone call or its relevance. As such, the District Court modified the Magistrate Judge’s order regarding adverse inference instructions. Marcum, at *48.

Bow Tie Thoughts

Attorneys cannot phone in spoliation allegations. If one side believes information exists that should be preserved, include that in your preservation letter to the opposing party. It is difficult for one party to be attacked for the destruction of evidence if they were never on notice of its existence. Moreover, discuss possible sources of relevant ESI during the meet and confer to ensure the electronic information is both identified and preserved.

Social Media Hearsay Objections

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.

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Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible under Federal Rule of Evidence 403 (likely because it would confuse the issues or cause prejudice). Id.

The Defendant also objected to the statement as hearsay (an out-of-court statement offered for the truth of the matter asserted). The Court opined that the statement was not being offered to prove the declarant was actually “sick and tired” of customer complaints, but evidence of the frequency of customer complaints. Fairweather, at *17. This would mean the statement was being offered for the truth of the matter asserted and thus would be hearsay. The Court further found the deposition testimony about the status message to be cumulative and would not be admitted. Id. 

Ironically, the Court did not invoke the Best Evidence Rule. The dispute focused on the Plaintiff’s deposition testimony about a status message she saw from another person. There is no reference to a print out, screen shot, or any capture of the Facebook status message. This arguably would also violate the “Best Evidence Rule,” because the “writing” was not actually included as evidence.

Spoliation, Texas Style

The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).

This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). 

The jury is to only hear evidence of spoliation that is related to the lawsuit. If there is spoliation, the then Trial Court can craft a proportionate remedy based upon the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party. Brookshire Bros., Ltd., at *4.

The facts of the Texas case involved video footage at a grocery store of a slip and fall. The Plaintiff slipped at the store and reported the incident the following day after going to the emergency room. The store saved video of the fall, starting from before the Plaintiff entered and left the premises. The video lasted 8 minutes. However, the rest of the video was deleted per the company’s data destruction policy after 30 days. Brookshire Bros., Ltd.  at *6-7.

The Texas Supreme Court held that a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy. Brookshire Bros., Ltd.  at *31.

The Court held that the deletion of the video for the entire day of the incident did not justify the jury spoliation jury instruction. Furthermore, the video showing the actual fall was presented to the jury. Brookshire Bros., Ltd.  at *46-47. The Court found that the failure to preserve additional video footage did not irreparably deprive Plaintiff of any meaningful ability to present his claim. Brookshire Bros., Ltd.  at *47-48. The issuing of the spoilation jury instruction was an abuse of the Trial Court’s discretion. Brookshire Bros., Ltd.  at *48.

Bow Tie Thoughts

The preservation of electronic evidence is a challenge for many attorneys. Litigants cannot preserve “everything” in a company at the first sign of litigation. The trick is preserving what is relevant. This becomes a question on the scope of discovery.

Could the Defendants in this case have copied a half hour before the incident and a half hour after? Sure. Some companies might do that. Others might not. Whether that is reasonable would turn on the facts of the case on whether that data needed to be preserved.

Texas lawyers know a few things about spoliation. First, it is based in evidence, opposed to a cause of action. Second, Judges should not let the facts over data preservation be presented to the jury to avoid any prejudicial effect. If there is an actual issue of spoliation, then the Court must determine the remedy before going to the jury.

Blogs I Like and the ABA Journal Blawg 100

There are many great blogs for attorneys. The ABA Journal is now accepting “Friends of the Blawg” briefs in the annual ABA Journal Blawg 100. Nominations can be submitted on the ABA Journal website.

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There are many great litigation blogs. Here are some of my favorites:

Craig Ball’s Ball in Your Court. Craig is a scholar, a gentleman, and an exceptional attorney.

Sharon D. Nelson’s Ride the Lightning. Virginia State Bar President Nelson provides daily eDiscovery news and is a must for anyone interested in eDiscovery.

Ralph Losey’s e-Discovery Team is another excellent source of eDiscovery best practices and summaries of recent cases.

My good friend Drew Lewis (along with Phillip Favro & Dean Gonsowski) writes Recommind’s eDiscovery blog Mind Over Matters.

There are many other great legal thought leaders, from Michael Arkfeld to Jackson Palmer. Everyone of them does a great service to the practice of law. I recommend checking them all out as you consider your nominations for the ABA Journal Blawg 100.

I would be honored to have your nominations for both Bow Tie Law and The Legal Geeks with Jessica Mederson, if you enjoy my blogs.

To file your “Friend of the Blawg” brief, please visit http://www.abajournal.com/blawgs/blawg100_submit/

 

Native Files & Protective Orders

What do parties do when they anticipate documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in a case? Agreeing to a protective order is a the solution the parties sought in Farstone Tech., Inc. v. Apple Inc.

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The protective order stated the following on native files:

Where electronic files and documents are produced in native electronic format, such electronic files and documents shall be designated for protection under this Order by appending to the file names or designators information indicating whether the file contains “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or shall use any other reasonable method for so designating Protected Materials produced in electronic format. When electronic files or documents are printed for use at deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. No one shall seek to use in this litigation a .tiff, .pdf or other image format version of a document produced in native file format without first (1) providing a copy of the image format version to the Producing Party so that the Producing Party can review the image to ensure that no information has been altered, and (2) obtaining the consent of the Producing Party, which consent shall not be unreasonably withheld.

Farstone Tech., Inc. v. Apple Inc., 2014 U.S. Dist. LEXIS 89604, 10-12 (C.D. Cal. June 24, 2014).

The section of depositions demonstrated a lot of forethought on behalf of the attorneys who prepared the stipulated protective order (or Judge) with the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. The only way this could be stronger would be the legend also including a MD5 hash value for authentication (which it potentially would include) and the system file pathway.

The final sentence on allowing review of a static image to the opposing side for review also addresses a concern many attorneys have over native files converted to static images. There is the obvious method of reading the document to determine it is “identical,” but using near-de-duplication technology to verify the text is an exact match, assuming the static image is a searchable PDF. If it is a TIFF, then conducting a line by line comparison is the best option.

My compliments to the attorneys who drafted the stipulated protective. I hope the litigation avoids any discovery disputes and focuses on the merits.