Court Orders OCR of Scanned Paper Documents, or Don’t Go to Court Claiming OCR will Cost $200,000

“OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents. Presumably, each party would perform the OCR process in a cost-effective manner to minimize their costs. Requiring the parties to incur this cost, when the OCR process is likely to streamline the discovery process and reduce the chance that either side will employ tactics designed to hide relevant information in a mountain of difficult-to-search documents is neither unreasonable nor burdensome.”

United States District Judge Ron Clark

Proctor & Gamble and S.C. Johnson & Son are in litigation over products with sales in the millions.  The parties were ordered to provide the Court with cost estimates to produce paper documents as TIFFs with Optical Character Recognition (OCR) so the static images would be searchable.  P&G v. S.C., 2009 U.S. Dist. LEXIS 13190 (E.D. Tex. Feb. 19, 2009).

 Thankfully, this is not a case where the parties and the Court were discussing OCR on electronically stored information like email, Excel files or other native files.  ESI is already ready searchable and does not need to be OCR-ed.  P&G v. S.C., 3.

 The Defendant, S.C. Johnson, claimed the OCR process would cost over $200,000.  Additionally, they took the position they would not use the OCR and requested cost shifting. The Plaintiff estimated the cost to be around .03 cents a page.  P&G v. S.C., 4.  Needless to say, the Court had a tough time believing that in our age of ESI such a large volume of the S.C. Johnson discovery would be in paper form needing to be OCR-ed to the tune of $200,000.  P&G v. S.C., 4.

On the left, OCR text in CT Summation iBlaze.  On the right, the static TIFF image of the same document. 

The Court applied the 7 factors from Zubulake in considering the Defendant’s claims for cost shifting.  Those 7 factors include:

(1) The extent to which the request was specifically tailored to discover relevant information;

(2) The availability of such information from other sources;

(3) The total cost of production, when compared to the amount in controversy;

(4) The total cost of production, when compared to the resources available to each party;

(5) The relative ability of each party to control costs and the 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. P&G v. S.C., 4-5, citing Zubulake, 217 F.R.D. at 322

 The Court quickly found against cost-shifting for the OCR process based on the following:

There was no showing that the request was for non-relevant information nor reasonably likely to lead to the discovery of admissible information. 

No showing that the documents were obtainable from other sources. 

The parties’ respective litigation budgets were estimated to be several million dollars apiece. P&G v. S.C. 6-7.

 The Court did not order cost-shifting.  Both parties were ordered to produce paper documents as searchable TIFFs with OCR.  The Court’s recognition of utilizing OCR in discovery was thoughtful and a solid acknowledgement that technology can help reduce discovery costs.

Whose Search Term is it Anyway?

In Spieker v. Cherokee, 2008 U.S. Dist. LEXIS 88103 (D. Kan. Oct. 30, 2008), the parties became entangled in a dispute over who created search terms for a set of specific discovery requests.

 The Plaintiff had served the Defendant with specifically defined Federal Rule of Civil Procedure Rule 34 requests for email and other electronically stored information.  The Defendant claimed the suggested search terms were “not specific enough” for a discovery production.  Spieker, 9.

 The Court found that since the ESI was created, stored, and/or maintained by the Defendant, they were in the “better position to develop the most appropriate list of search terms to produce” the requested electronically stored information. Spieker, 9.

 A producing party cannot escape its burden of production by claiming that the requesting party’s suggested search terms were “not specific enough.” As such, producing parties should modify search terms if those terms need to be more specific to answer a requesting party’s specific production requests. Spieker, 9.

“What I Like About You” When You Are No Longer a “Jukebox Hero”

My first video game system was Colecovision.  About the same time my brother and I were playing “Donkey Kong” and “Frogger,” the Romantics were singing “What I Like About You.”

 One of the most popular game lines today is the “Guitar Hero” series. People enjoy rocking out to classics like Cheap Trick or AC/DC.  You can find these games at parties during legal technology conferences and see e-discovery professionals proving how fun it is to rock out. 

 However, a few of the Romantics were not happy with “Guitar Hero.”

 Several of the band members sued over “Guitar Hero Encore: Rock’s the 80’s” claiming violation of their “right of publicity; false endorsement under the Lanham Act; unfair competition; and unjust enrichment.”  Romantics v. Activision Publ’g, Inc., 574 F. Supp. 2d 758 ( E.D. Mich., 2008 ).  

 This case ranged from the right of publicity to the First Amendment protecting video games to IP claims.  All of the evidence centered on the electronically stored information of a video game system.  A Federal Court spent extensive time discussing how “Guitar Hero Encore: Rock’s the 80’s” works, what players do in character creation and how they advance in the game, all to examine dueling summary judgment motions.  

 The main thrust of the Plaintiffs’ complaint was that people who play the video game will be “confused, deceived, or mistaken” about whether the Romantics endorsed “Guitar Hero Encore: Rock’s the 80’s.” Romantics, 5.

Ironically, the original lead singer was not part of the lawsuit.  Moreover, the band members who brought the lawsuit did not claim they owned any right to the “What I Like About You.”  Romantics, 5.

The Defendants obtained a valid nonexclusive synchronization license from EMI Entertainment World, Inc., which owned the copyright for the song “What I Like About You.”  This license allowed the Defendants to make a new recording of the song and use that recording in synch with the video game.  Romantics., 4. If someone advanced far enough in the game they could encounter the new recording of “What I Like About You” with the tag line, “as made famous by The Romantics.”  Romantics,10.

The “right to publicity” claim failed.  The Court held Michigan law did not allow a “claim based on the sound of a voice, let alone the allegedly distinctive sound of a combination of voices.” Romantics, 9-10.  Moreover, it is hard to argue a band has a “distinctive” sound when the original lead singer is not a party in the lawsuit.

 The Court stated that if even the “right to publicity” claim survived, it would be trumped by the First Amendment.   Romantics, 13.  First, the Court found that the video game was an “expressive work.”  The Court outlined how the game works, from character creation, playing concerts, and numerous other elements of the story.  Second, the song was not wholly unrelated to the video game.  The purpose of the game is to play rock songs.  However, the Romantics’ song did not appear in any advertising for the game and someone playing the game might never reach the level where they can play “What I Like About You.”  As such, the video game was protected by the First Amendment, because it was not “a disguised commercial advertisement.” Romantics, 13-17.

Electronically stored information touches almost all aspects of everyday life, including how we play.  This one lawsuit focused on many complex issues from a video game.  As the “net generation” continues to grow up and ESI litigation expands, we will see more creative cases involving electronically stored information.  

So, as Gene Simmons said, “God Gave Rock and Roll to You.”  Happy playing everyone.

Production of Metadata and the Importance of the Meet & Confer Process

This lawsuit demonstrates why it is so important that parties frilly discuss their ESI early in the evolution of a case. Had that been done, the Defendants might not have opposed the Plaintiffs’ requests for certain metadata. Moreover, the parties might have been able to work out many, if not all, of their differences without court involvement or additional expense, thereby-furthering-the “just, speedy, and inexpensive determination” of this case. See Fed. R. Civ. P. 1. Instead, these proceedings have now been bogged down in expensive and time-consuming litigation of electronic discovery issues only tangentially related to the underlying merits of the Plaintiffs’ Bivens claims. Hopefully, as counsel in future cases become more knowledgeable about ESI issues, the frequency of such skirmishes will diminish.

Magistrate Judge Frank Mass

 The meet and confer process, effective communications between parties and specific discovery requests for metadata are imperative for effective litigation today.  Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 ( Nov. 21, 2008 ) is an example of why early communications between parties is important for cost effective and efficient litigation. 

 Aguilar v. Immigration & Customs Enforcement Div., is a civil rights case where the plaintiff claimed 4^th Amendment violations for illegal searches.  What followed was a case study of why discussing discovery requests, metadata, forms of production and collection are important.

 Discovery in the case centered on emails from the Immigration & Customs Enforcement Division, several government databases, how that information was collected, and what was requested by the Plaintiffs.  In an early Rule 26(f) conference the parties did not discuss metadata with their requests for production.  The Plaintiffs first request for production was silent on the form of production and did not specifically request metadata.  Aguilar, 7.  Metadata was not discussed until a “passing” comment at a later meet and confer.  Aguilar, 8.

 The Plaintiffs discussed producing metadata on a separate conference call.  The Plaintiffs requested the following:

(1) That emails and electronic documents be produced in Tagged Imaged File Format (“TIFF”) with a corresponding load file containing metadata fields and extracted text and (2) that spreadsheets and databases be produced in native format.  Aguilar, 8.

 The Defendants opposed the Plaintiff’s discovery requests and proposed production in text-searchable PDF format.  Moreover, the Defendants would only produce metadata if the Plaintiffs could show it was relevant to their claims.  Aguilar, 9-10.

 After several conferences and hearings, the Court interpreted the Plaintiff’s position as a motion to compel responsive emails and electronic documents (such as Word, PowerPoint, and Excel documents) in TIFF format with corresponding metadata.  Aguilar, 10-11.

 The Court engaged in a thorough discussion of the different types of metadata, including substantive metadata, system metadata and embedded metadata.  Each is defined below:

Substantive metadata: Reflects changes made by the user, including prior edits or editorial comments.  Aguilar, 13.

 System metadata “reflects information created by the user or by the organization’s information management system.” Aguilar, 13, citing The Sedona Principles, Second Edition: Best Practices Recommendations and Principles for Addressing Electronic Document Production Cmt. 12a (Sedona Conference Working Group Series 2007), http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed 607.pdf

Embedded metadata consists of “text, numbers, content, data, or other information” that appears in native files with spreadsheet formulas, hidden columns, hyperlinks, references and fields, and database information.  Aguilar, 13, citing United States District Court for the District of Maryland; Suggested Protocol for Discovery of Electronically Stored. Information 27.

 The Court reviewed the Sedona Principles, 2d regarding metadata production.   Principle 12 to the Sedona Principles states:

 Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.  Sedona Principles 2d Principle 12.

In essence, Sedona Principles 2d Principle 12 focuses on “the enhanced accessibility and functionality that metadata provides to the recipients of ESI.”  With that, the form of production might be a static image such as a TIFF or PDF with a corresponding load file containing searchable text and selected metadata.  According to the Sedona Conference, this “satisfies the goals of Principle 12 because the production is in usable form, e.g., electronically searchable and paired with essential metadata.” Aguilar, 21-22.

The court reviewed a number of metadata production cases.  Courts usually order production of metadata when 1) the original Rule 34 request calls for metadata 2) no ESI has been produced from the producing party.  Aguilar, 22. 

The Court turned its attention to the issue of email metadata production.  This request was denied because the Plaintiff did not include metadata in their original ESI request.  Given that the emails only amounted to 500 “documents,” coupled with the lack of showing if any Bcc’s or folder structure having any value, the Court was unwilling to order production of the email metadata.  This might have turned out differently if the original request included metadata prior to the collection of the email messages.  Aguilar, 34.  This also might have been avoidable if the parties had discussed it early at the initial Rule 26(f) conference.

The Court did allow production of metadata for spreadsheets, word processing and PowerPoint files, on the condition the Plaintiffs agreed to pay for the production.  The Court recognized the low burden of production, enhanced searchablity and the Sedona Conference’s view on producing accessible metadata.  However, since the ESI had already been produced in one form, the second production would need to be at the Plaintiff’s expense. Aguilar, 33-48.

Many of these issues could have been avoided, or limited at least, with earlier discussions of ESI production and specifically requesting metadata during discovery.  While every case is different, lawyers should consider check lists for requesting production electronic evidence, consider which are the most reasonable forms of production for the ESI and determine which metadata they want from email messages, Word documents, Excel spreadsheets and request accordingly.

Computer Animations vs Simulations: What is the Difference?

We live in an age where our jury pool watches CSI, History Channel battle re-enactments, and movies on iPods.  To say we are visual society is an understatement.  How can lawyers maximize technology to better communicate facts showing liability why an engine failed to the modern juror? 

 The first step is understanding the differences between computer animations and simulations. 

 A computer animation has the following characteristics:

• Moving pictures not intended to simulate an event.
• Authenticated by a sponsoring witness with personal knowledge of the content of the animation.
• Showing that it fairly and adequately portrays the facts and
• Helps illustrate the testimony.

 See, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 559 (D. MD 2007)

 A computer simulation has the following characteristics:

• Scientific Evidence
• Generally detailed and realistic recreated computer image of the event that can be manipulated.
• Can be portrayed from different angles or from the viewpoints of different witnesses.

See, Verizon Directories Corp. v. Yellow Book USA, Inc. E.D.N.Y., 2004 331 F.Supp.2d 136, 138

 Both animations and simulations can be very powerful in proving your case.  An animation requires a person with knowledge of the event to explain what is being presented.  Conversely, a simulation has far more science involved requiring expert testimony.  The witness will have to explain how the simulation was created.  More importantly, there might be challenges if the simulation does not have the correct lighting from the time of day.  There are additional prejudicial risks if the accident reconstruction is too graphic. 

 Regardless of what method you use to illustrate complex issues to a jury, it is imperative to recognize we have a visual society and there are tools to communicate.  

 …and as a special to Bow Tie Law Blog, here is an example of what not to use in trial…

Blogs Comments as Existing State of Mind Exception to the Hearsay Rule

The University of Kansas sued a sportswear company claiming violations of state and federal trademark laws through the unauthorized and unlicensed sale of the school’s apparel.  Univ. of Kan. v. Sinks, 565 F. Supp. 2d 1216; 2008 U.S. Dist. LEXIS 23765 ( D. Kan., March 19, 2008 ).

The Plaintiff offered internet postings to show confusion and consumer reaction to the Defendant’s products.  The Defendant brought a motion to strike the blog postings as inadmissible hearsay. 

Plaintiffs claimed the blog postings were not offered for the truth of the matter asserted, but to show the state of mind of the posters under Federal Rule of Evidence 803(3).   This Rule states:

Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.  

 The parties engaged in a battle of precedents, with the Defendants citing cases where internet evidence was barred as “any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R. Civ. P. 807.” Univ. of Kan. v. Sinks, 1230, citing St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774 (S.D. Tex. 1999). 

 The Plaintiffs in turn cited cases where hearsay evidence from the internet was admissible, including where internet postings were admitted “as evidence of confusion because they were not submitted for the ‘truth of the matter asserted’ and did not violate the hearsay rule.”  Univ. of Kan. v. Sinks, 1231, citing RDK Corp. v. Larsen Bakery, Inc., No. 02-C-0675, 2006 U.S. Dist. LEXIS 53298, at *31, (E.D. Wis. July 31, 2006).

 The Court found the hearsay evidence was not offered for the truth of the matter asserted, but to support the claim of actual confusion.  The internet postings were only to be admitted to prove the state of mind of the posters, namely, they were confused. Univ. of Kan. v. Sinks, 1231.

 Cases like this will likely walk a fine line.  Courts will guard against hearsay being offered for the truth of the matter asserted.  However, considering the numerous ways people can express themselves online from blogs to Facebook status messages to to tags on photos to Twitter, these issues will continue to be litigated.

Production of Text Messages Protocol

The sensitivity courts are showing to text messages and public employees’ reasonable expectation of privacy has been very impressive.  This sensitivity is evident in cases such as Quon v. Arch Wireless Operating Co., Inc., which found that a police officer had a reasonable expectation of privacy in his messages, due to the police department’s informal usage policy on text messages.  Quon v. Arch Wireless Operating Co., Inc., 2009 U.S. App. LEXIS 2259 (9th Cir. Cal., 2009).

When a public entity is in litigation, how should those messages be produced and review?  How do you protect public employees with a reasonable expectation of privacy in their text messages?

Flagg v. City of Detroit, 2008 U.S. Dist. LEXIS 67943 (  E.D. Mich., Sept. 5, 2008 ) is helpful in seeing how one court addressed the situation. 

In Flagg, the text messages at issue were sent or received by city officials on April 30, 2003, from the hours of 1:30 a.m. to 5:30 a.m.  This focused date and time period appears narrowly tailored with reasonable particularity as required by traditional discovery rules. 

 The Court issued the following protocol in a discovery order:

1. Plaintiff was to serve a Rule 34 request for the text messages as narrowed to April 30, 2003 and for the 4 hour time period.
2. The City of Detroit was to forward the request to the text message service provider with the City’s authorization to release the text messages to the court for in camera review. 
3. The service provider was to send three copies of the text messages on CD to the District Court for two magistrate judges to review in camera. 

This sort of protocol sounds reasonable to protect privacy expectations. More importantly, the narrowly tailored request should keep the text message review from spinning out of control with data.

 If the facts were slightly different, it might be necessary for a computer collection expert to collect text messages or photos off a cell phone, BlackBerry or iPhone.  In such situations, a collect expert can use a solution from Paraben Forensic Tools to harvest data off of mobile devices. 

Courts will continue to consider issues of privacy, text messages and how to produce them when public employees are concerned.  While cases like Quon v. Arch Wireless Operating Co., Inc., had a police department with a weak text message policies, it will be interesting to see how a court handles a company with a strict text message policy.

Paper Please: The Baggers of e-Discovery

Requesting the form of production is not like telling the bag boy at the grocery store “paper please.”  Moreover, you do not enter a grocery store and ask for “paper please” before you have even done any shopping.

That is what happened in a recent case.  In theory, parties are to meet and confer on the form of production during their mandatory Federal Rule of Civil Procedure 26(f) conference.  The parties’ agreements on discovery are then captured on their Form 35 report to the court.  From there, the court may codify the agreement in a Rule 16 scheduling order. 

 In Gregg v. Local 305 IBEW, 2008 U.S. Dist. LEXIS 102163 ( N.D. Ind., Dec. 17, 2008 ) the plaintiff filed a motion requesting that all electronically stored information (ESI) produced during discovery be produced as paper and at the producing party’s expense.  Gregg v. Local 305 IBEW, 1.

 The court quickly denied the motion in a one page opinion.

 The motion was apparently filed while the parties were preparing their meet and confer report before the preliminary pretrial conference. The Court noted the form of production issue was never discussed during the meet and confer.   Gregg v. Local 305 IBEW, 1.

The Court denied the Plaintiff’s “pre-emptive paper form of production” motion with the admonishment to the attorneys for them to discuss and agree on a form of production for electronically stored information, pursuant to Fed. R. Civ. P. 26(f)(3)(C). The Court further noted that form of production issues could be addressed in the court’s scheduling order if the parties did not agree or after an actual discovery request.  Gregg v. Local 305 IBEW, 1.

As seen before in other opinions, discovery issues such as the form of production must be addressed by the parties during the meet and confer process.  Cooperation is key to avoiding extra court costs and wasting time on motion practice that could be avoided.

Ethics of e-Discovery (or, Teaching Lawyers Ballet)

“Watching an incompetent lawyer is like watching a clumsy ballerina.” 

Magistrate Judge John M. Facciola, February 4, 2009

 Magistrate Judge John M. Facciola’s keynote at Legal Tech 2009 had a call to action for lawyers to have certifications and standards of competence regarding technology. 

In light of how everyday life has changed from iPhones to DVRs to Facebook, it is no surprise you can see why Judge Facciola took this position. 

Cases such as Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008 ), Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008  ), Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS (May 29, 2008 ) further highlight the need to understand not just the technology the clients are using, but the litigation support products the firm is deploying. 

The questions remains, how would certificates or competency standards be measured?  Who would manage such a system? 

History is helpful in coming up with a plan.

 In 1975, California was the first state to introduce the Professional Responsibility Examination, testing candidates on legal ethics and rules of professional conduct.  California enacted the “Ethics Exam” in response to many of the major players in Watergate being California attorneys.  Today, California’s continuing legal education requirements includes Legal Ethics, Detection/Prevention of Substance Abuse and Elimination of Bias in the Legal Profession.  These ethical requirements are managed under the existing CLE structure for California attorneys. 

 Just as the Bar reacted to the Watergate attorneys, State Bar Associations may have to take action against “technical incompetence.” 

 State Bar Associations across the country should consider requiring CLE course material specifically on the ethical duty of competency, specifically regarding technology.  Moreover, the legal justification for “technically competency” is arguably already an ethical requirement.  California Rules of Professional Conduct 3-110(B)(2) defines competence in any legal service as including “learning and skill.”  Additionally, subsection (C)(2) states:

If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by…2) by acquiring sufficient learning and skill before performance is required. CA Rules of Professional Conduct 3-110(C)

 The need to understand electronically stored information and technology was brought to life while talking with a lawyer a few months ago.  The lawyer said their client was a heavily regulated industry.  I would be shocked if this client did not use any software to track materials and for legal compliance.  The lawyer asked, “What if I decide e-Discovery is not important because I have paper invoices and logbooks?”

 The lawyer was blunt in saying he did not want to “deal” with e-Discovery. This lawyer was willing to dismiss all electronically stored information without consulting the client on what ESI existed, email archiving polices, whether they enacted a litigation hold, or doing any collection or review.

My first reaction for anyone thinking that is a good plan, please review Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).  Qualcomm stated, in relevant part:

“[An] Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.”  Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).

One could argue a lawyer has made an “inadequate document search” if they do not have any discussions with their client on electronically stored information, enact a litigation hold, perform collection of ESI, or any review of e-Discovery.  Furthermore, by the virtue of their search being inadequate, the lawyer’s arguments to the court would at a minimum be false, if not outright misleading. 

I believe State Bar Associations are the ones in the best position to require e-Discovery continuing legal education courses.   Creating new agencies or oversight organizations might tax already tight state budgets.  While teaching lawyers not to be clumsy ballerinas will not be easy, adding 2 or 3 hours of e-Discovery courses on collection, technology or review probably will be the easiest song for lawyers to learn how to dance to.

Discovery Production Workflow: Lessons from Magistrate Judges Facciola & Grimm

In my prior posting Playing with Fire: Producing ESI as Paper we looked at the dangers of producing ESI as paper.  In addition to the legal analysis, Judge Facciola outlined a workflow for the parties in Covad Communications Company v. Revonet, Inc. The Defendants represented to the Court that it would take a paralegal five to ten hours or work at a rate of $178.50 for a maximum cost of $1,785.00 to do a privilege review of the documents to be produced.  I think using litigation support technology would have expedited the process and taken less time, thus lowering costs.  Covad, 7.

 As part of the unfolding discovery production dispute, the Defendant offered to produce the emails in TIFF format, but insisted that the Plaintiff pay for a paralegal to “manually delete the non-responsive and privileged TIFF’s that have already been redacted from the paper document production.”  Covad, 7.  As stated before, this would take up to ten hours for a paralegal to complete. 

 The Court suggested the workflow entail the paralegal removing the paper documents that were irrelevant or privileged and then finding the corresponding “native” e-mails. The paralegal would then delete the irrelevant ones and move the privileged ones to another receptacle so they can be logged for a privilege log and made available for the Court’s review in case of a challenge.  Covad, 7.

 The workflow should not have focused on deleting TIFFs or Native Files, but reviewing the discovery production in a litigation support software. The reviewing paralegal could review the production and mark (tag) documents for production or privilege.  This could be done with a brut force document review literally reviewing each document. Additionally, running searches for responsive or privileged documents allows lawyers to reduce time reviewing irrelevant documents.

 The different litigation support solutions may vary in degree, but all allow for data entry to log a document as “responsive” and “privileged.”  This can be accomplished with data entry in a database field, or “tagging” features while may include checking a box such as “Attorney-Client Privilege.”  Many products also allow data to be organized in virtual folders the review can create, such as “Plaintiff Discovery Request 17.”   Production tools also vary, but most litigation support solutions allow users to “produce” ESI marked for production in an exportable format to their opposing counsel.  Conversely, many litigation support vendors are always happy to provide production services. 

 Using litigation support software would avoid the discussion of “deleting” non-responsive or privilege ESI.  Instead, the focus is marking documents for production.  ESI that is non-responsive can be marked as such.  Additionally, privileged ESI can be logged in the litigation support database.  Many litigation support solutions can now generate a privilege and redaction log.  This empowers reviewers to focus on analyzing the ESI and maximize the use of the litigation support solution. 

 There are many ways to push through a automated document review, but the two most basic options are 1) having an associate or paralegal sit in front of the computer and review the ESI like they were going through a box of paper 2) run searches for names, dates, email subject lines or other key words for responsive or privileged documents.

 Brute force ESI review can work, but might drive up costs in treating a large volume of ESI like paper. Developing a search protocol is imperative if your review is to have any nuance beyond a brut force review of your database.  However, lawyers and paralegals have to know how their litigation support solutions work in order to competently search for responsive ESI to production requests. 

 Peskoff v. Faber had multiple opinions by Judge Facciola over several discovery disputes, including a lawyer who performed searches for responsive email on hard drives and representing to the Court he had produced all responsive email.  The attorney was ordered to describe in detail the nature of each search for responsive email.  Judge Facciola later issued an evidentiary order in Peskoff v Faber, 2007 WL 530096 (D.D.C.) regarding whether the lawyer’s search did in fact produce all email messages:

 ”I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.”  Peskoff v Faber, 2007 WL 530096 (D.D.C.).

 Personally, I think Peskoff sounded more like a collection and processing situation, but the opinion is not clear what the attorney was using to search the hard drives for responsive email. 

 Developing quality assurance protocols to ensure responsive ESI is produced and privileges are protected is advisable for competent representation of a client.  Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS 42025  is a case study in a law firm failing to perform any sort of quality assurance testing in their searches, resulting in 165 inadvertently produced documents.  The producing party claimed the 165 documents were privileged. 

 Magistrate Judge Grimm found the producing party waived their privileges.  The Court outlined the following failures of the Defendant leading to the waiver:

• Failure to prove the keyword search was reasonable
• Failure to identify keywords
• Failure to show qualifications of person who came up with search terms
• Failure to show quality assurance testing
• Failure to explain what they did and how it was sufficient

 Factoring these opinions together we can see a list if “to do’s” to run defensible searches and protect any privilege information.  The first being those using litigation support software must be knowledgeable in how to effective use the solution. 

 I do not think courts will require an expert witness for statistical analysis of search terms in every case to show a search was defensible in traditional litigation support solutions for document review.  For example, no judge requires an expert to explain how a DVD player works or requires affidavits that a paralegal knows how to push “play” or “fast forward.”  Many of these litigation support products have existed for 20 years and courts accept lawyers know how to use them. 

 There would be higher standards for an expert witness in situations including collection of ESI off a hard drive or processing of ESI over those search terms, but that standard would be extreme for someone using common solutions such as CT Summation iBlaze, LexisNexis Concordance or West Case Notebook.  However, a party using a litigation support solution may need to have affidavits explaining what qualified persons with knowledge of a litigation support solution did for a privilege search.  It is possible an Attorney Client Privilege search might just be searching for the domain name of the law firm in “To” and “From” email.  In other cases it may be far more advanced.  What is “reasonable” and what a court will expect from a party will likely vary with the facts of each case. 

 ”Quality assurance” could be running a test search and confirming the results match with known privileged documents.  For example, if you have known emails from between the lawyer and client, and your privilege search does not include those emails in the search results, you might have a problem with your search terms.

 Using litigation support solutions can reduce the time to review ESI, create production sets and privilege/redaction logs.  When it comes to litigation support technology, lawyers cannot treat their paralegals like a 14 year old son who is asked to hook up a Wii or program an XM Radio.  Understanding litigation support solutions is necessary for effective document review, reducing costs and demonstrating to a court your searches did in fact produce all responsive ESI.