Magistrate Judge Peck’s Search Term Wake-Up Call

This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”).

Magistrate Judge Andrew Peck, William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

The parties in William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009) really ticked off Magistrate Judge Andrew Peck. 

It does not take a major legal scholar to sense there will be an unhappy ending for someone whenever you see an opinion where a judge says, “You get the picture” or “This Opinion should serve as a wake-up call…”

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., is a construction defect and delay case involving the Bronx County Hall of Justice.  The parties were in a dispute over search terms involving a non-party’s email production to separate project emails from non-project emails. 

One party proposed a few basic search terms to search the non-party’s email system.  The other party provided several thousand terms.  The non-party only wanted to produce emails that related to the Bronx County Hall of Justice project.  The Court noted this problem could have been avoided if the non-party had referenced the project name in the “re” line of the email messages. William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 9-10.

Magistrate Judge Andrew Peck was not a happy judge.  The Court’s frustration could be summed up with this telling quote:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.  William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 11.

The Court had to create a key word search methodology, “without adequate information from the parties.”  William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 10.  The Court ordered the parties to use the “narrow” terms, variations of the parties names and the names of the personnel involved in the construction.  Id.

Judge Peck issued this opinion as a wake up call to lawyers in his district.  Judge Peck drove home the point citing both “Bow Tie” Magistrate Judges Paul Grimm and John M. Facciola’s search term opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008); United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) and Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008). 

Judge Grimm’s and Judge Facciola’s opinions send a clear message that at a minimum determining search terms involves planning, quality assurance and the person performing the search terms can be subject expert qualifications under Federal Rule of Evidence 702.  These issues were discussed in my posting Discovery Production Workflow: Lessons from Magistrate Judges Facciola & Grimm

Judge Peck had to wade into a potential quagmire he did not want to touch.  Developing search terms is something judges probably want to avoid like the Black Death.  Magistrate Judge Peck’s wake-up call to lawyers on search terms speaks for itself and should not be ignored:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar — even those lawyers who did not come of age in the computer era — understand this.  William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903, 13-14 (S.D.N.Y. Mar. 19, 2009)

The Express Way to Your Hard Drive

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.  White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, 2009 U.S. Dist. LEXIS 22068, 22 (D. Kan. Mar. 18, 2009).

The number of hard drives a person has within their possession may include their personal computer, a work laptop, a multitude of thumb drives, several external hard drives and perhaps even backing up their personal hard drive with an online service.  What happens when one of these hard drives is the subject of a discovery request? 

The imagining of a hard drive has many privacy concerns, covering everything from tax information, credit card numbers and potentially numerous irreverent data. Several judges have told me they want to see a strong showing to justify imaging a hard drive because of these concerns. 

There is a growing body of case law over the last three years on the imaging of hard drives.  Magistrate Judge David Waxse summarized many of these issues in White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, 2009 U.S. Dist. LEXIS 22068 (D. Kan. Mar. 18, 2009).

White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, is a Family Medical Leave Act case where the plaintiff sought reproduction of PSTs and the mirror image of hard drives because of discrepancies around the creation date of three email messages and attachments from the Plaintiff’s supervisors.  The hard drives at issue potentially had data protected by both the attorney client privilege and Health Information Portability and Accountability Act (HIPPA).  White, 20.

Magistrate Judge Waxse noted that Courts now consider imaging a hard drive to be neither routine nor extraordinary.  White, 23-24.  Situations where imaging a hard drive was proper include cases involving trade secrets; discovery production of electronically stored information containing discrepancies/inconsistencies; or where a party failed to produce relevant ESI.  White, 23-24. 

Judge Waxse found that the Plaintiff demonstrated sufficient circumstances to allow some sort of direct access to the computer hard drives regarding the creation date two of the email messages with attachments.  White, 25-26.  Moreover, the Defendants were not able to explain the inconsistencies.    As such, the Plaintiff’s expert needed more information to examine the attachments’ date creation and modification. 

However, the Court did NOT order the mirror image of the two hard drives, because the Court could not determine on the evidence presented whether the hard drives contained the sought after information.  White, 27-28.  Judge Waxse instead ordered the lawyers and computer experts to meet and confer over the email attachment with the data inconsistencies.  Id. The parties were to set up a protocol for the Plaintiff’s expert to inspect the hard drives or computer systems containing the sought after information. Id. Additionally, the inspection protocol needed to preserve claims of attorney-client privilege and protect the confidentiality of non-relevant personal information located on the hard drives. White, 28.

Imaging hard drive cases will continue will into the future.  The advances in the technology for imaging a hard drive might be cheaper to perform and with greater speed. However, issues of privacy, privilege and judges guarding against intrusive requests will keep generating case law.

What Goes In a Litigation Hold Letter?

One of the issues that continues to grow in importance is drafting a litigation hold (preservation) letter for your opponent.  Of greater importance is enacting a litigation hold to avoid destroying any evidence.

What goes into a litigation hold letter?  Magistrate Judge Kathleen M. Tafoya extensively outlined what should go in a litigation hold letter in Stone v. Lockheed Martin Corp., 2009 U.S. Dist. LEXIS 12105 (D. Colo., Feb. 2, 2009). 

Judge Tafoya’s opinion identified the following for a litigation hold letter: 

• Basic investigative work should uncover appropriate topics for the letter.
• Common sense should guide the actual points to include in a preservation letter.
• A litigation hold letter is not a discovery request.
• A party can disregard the request to preserve, but once the request has formally been made and evidence disappears, a preservation letter may place the discovering party in a superior position to seek sanctions or other relief.
• At a minimum, a letter should begin with a general statement that the discovering party expects the party to preserve digital evidence that in all probability will be relevant to the issues in a case, or may lead to the discovery of such evidence.
• The preservation letter should include a request that the other party suspend its regular document retention policy pending discovery.
• The preservationletter should identify all of the possible locations where such evidence might conceivably reside.
• The letter should inform the opposing party that a mere file backup of the hard drive is not adequate preservation.
• The party must be instructed to image hard drive in bit-stream copies, where all areas, used and unused, of the hard drive are copied.
• If a file is deleted before a backup is made, the deleted file will not be copied unless it is a bit-stream copy.
• The letter should also request that deleted files that are reasonably recoverable be immediately undeleted. Stone v. Lockheed Martin Corp., 2009 U.S. Dist. LEXIS 12105 (D. Colo. Feb. 2, 2009)

Possibly the two most important principles from this check list 1) common sense should guide the preservation letter 2) a litigation hold letter is not a discovery request.  It is easy to imagine lawyers being overly cautious and drafting what sounds like discovery requests instead of identifying what should be preserved.  

There is one big problem with this case:  This opinion will be criticized because the judge denied a motion to preserve evidence because the Pro se plaintiff failed to assert or attach a “presentation letter.”  While not wading into those issues in this posting,  Stone v. Lockheed Martin Corp. provides a good overview of what should be included in a preservation letter.

What is a Facebook Message? Email? Blog? Both?

A Federal Court in Puerto Rico addressed a specific question: What sort of ESI is a social networking message? Is it an email? A blog? Or something else?

Maldonado v. Municipality of Barceloneta, 2009 U.S. Dist. LEXIS 19842 (D.P.R. Mar. 11, 2009) is a case where a party sought a protective order to bar the defendant from contacting her.  The means of communication: A Facebook message.

The Plaintiff, Alma Febus was contacted by Julio Diaz on Facebook regarding a separate lawsuit.  The first communication was Facebook Group invitation.  The Plaintiff ignored the Group invitation.  The second was a message from the Defendant.  Maldonado 6-7. The message stated:

If you want to see the evidence that exists against the municipality let me know so that you can inform yourself well and please consult with a lawyer your civil responsibilities as far as defamation. Soon we will be filing a lawsuit and you could be included. My only request is that you are objective when mentioning my name. Maldonado, 8.

The Plaintiff claimed the message violated the Federal witness tampering statue and sought a protective order.  Maldonado, 7-8.

The Court examined a subtle issue: what exactly is a Facebook message?  The Defendants claimed the Facebook message was a blog.  The Court noted it was not a blog, which is defined as a “frequently updated web site consisting of personal observations, excerpts from other sources, etc.”  Maldonado, 8-9, citing Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1209 n.3 (D. Nev. 2008).

The Court rejected the Plaintiff’s position the Facebook message was an email.  The Court stated:

This type of communication, a message sent on Facebook, a “social networking website,” which has not been considered by this circuit or in any other circuit to the court’s knowledge, is likely a hybrid of the two. Maldonado, 8-9.

The Court noted that since the Facebook message was only viewable in the Plaintiff’s Inbox, it was more like an email.  This removed any potential First Amendment protections because it was not publicly viewable.  Maldonado,  9. However, it is worth noting the Court viewed Facebook messages as a hybrid of a blog and email.

The Court ultimately found against issuing a protective order, finding no evidence of intimidation by the Defendant.  The threat of future litigation was insufficient to find witness tampering.   

Social networking will be an area to watch.  The potential for jury tampering, witness intimidation can be carried out in any medium.  Social Networking sites are by no means off the list. 

Social networking sites will likely be in a league of their own when it comes to electronically stored information.  How they will be treated will depend on what is at issue.  If public status messages are conveying a threat or publishing confidential information, the social networking site might be treated like a blog.  If messages are at issue, more like email.  Regardless, attorneys must understand how social networking sites work and what is at issue for effective representation.

It Takes Two to Tango…and Form a Conspiracy over Text Messages

A “conspiracy” is an “agreement by two or more persons to commit an unlawful act.”  Black’s Law Dictionary, Pocket Edition, 1996. 

Like a tango dance, a conspiracy takes a partner.  However, the number of people in a conspiracy can quickly make it look like a square dance, with everyone needing to follow the dance calls to complete the conspiracy. 

 Under Federal Rule of Evidence 801(d)(2)(E), statements “by co-conspirators are properly admissible as non-hearsay if (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy.” United States v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009). 

 In U.S. v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009) the defendants were in a conspiracy to 1) steal and sell cars and 2) drug running. 

 One of the defendants sent a co-defendant text messages with Vehicle Identification Numbers (VIN).  These text messages were in furtherance of the auto theft conspiracy.  However, there was no evidence the sender who provided the VINs was part of the drug trafficking conspiracy.  As such, the sender of the text messages was not part of the entire conspiracy. 

 The defendant who sent the text messages picked a dance partner, put on his dancing shoes and made it to the dance floor.  However, he did not make the song request for the drug trafficking arm of the conspiracy.  If he had, he would have been a member of both arms of the criminal conspiracy. 

 Both civil and criminal cases will see text messages, instant messages or tags on social networking sites come into play into lawsuits.  Whether they are non-hearsay, present sense impressions or party admissions will be the subject many court opinions to come.

Court Orders For Hosted Review Solutions: When the Judge Wants to See the Discovery Too

Funny thing about discovery: Sometimes, the Judge needs to see the electronically stored information too. 

However, most judges will not want a lawyer to swing by in a truck to drop off 80 bankers boxes of printed email and spreadsheets at the courthouse. 

 It is also unlikely many Courts can afford purchasing litigation support software.  In these situations a web hosted review platform can be the solution. 

For those not familiar with them, a hosted litigation support solution is a database hosted online by a third party for a law firm or multiple firms.  This could be a firm with a very large case or multi-party litigation.  Each party can have its own secure log in passwords and not have access to their opponents’ work product. 

Magistrate Judge Facciola issued a discovery order that required the parties to consider using a hosted review platform.  The order set out as a “primary goal” for the parties to select a review platform with “hyper-linked to fields in a database that will permit the instantaneous retrieval from within the database of the information offered by plaintiffs in support of any factual proposition.”  El-Amin v. George Wash. Univ., 2008 U.S. Dist. LEXIS 85009 (D.D.C. Oct. 22, 2008).

 The Court set out three secondary goals:

• A. The review software had to be easily used by counsel and by the Court.
• B. The Court needed access to the review software.
• C. The review software needed to be self-contained. El-Amin v. George Wash. Univ., 2.

 The Court even went so far as draft a six column database as an example for the parties. El-Amin v. George Wash. Univ., 2.

Claim	Dr.	Date	Plaintiff’s	Defendant’s objection	Court’s ruling
No.			evidence in	and any countering
			support	evidence
123	Smith	10/02/01	Document or	Counter argument why	Claim
			testimony	evidence is insufficient;	sustained or
				tender of countering	denied, with
				evidence with	reason
				explanation

Judges are judges because they are educated problem solvers.  It is not hard to imagine more discovery orders such as El-Amin v. George Wash. Univ.  Courts will face situations requiring all parties to have access to ESI and rulings to be made on objections, privileges or admissibility.  A hosted solution can distribute the costs among the parties and allow a court an opportunity to review the discovery for expedited rulings.  This beats a moving truck full of boxes.

Serving Discovery Requests by Email

Many lawyers today no longer go to court with a pager on their belt, but a BlackBerry or iPhone.  Partners can email directions to associates from the courthouse and associates can ping a paralegal for help at a deposition.  Sending email is a normal part of the practice of law. 

Can a lawyer properly serve discovery requests by email?  One court answered yes.

Federal Rule of Civil Procedure 5(b)(2)(D) states, in relevant part, that a party may serve pleadings or discovery on an adverse party by, “delivering a copy by any other means, including electronic means, consented to in writing by the person served. Service by electronic means is complete on transmission; . . .” Alliance Communs. Coop., Inc. v. Global Crossing Telcomms., Inc., 2009 U.S. Dist. LEXIS 16467, 27-28 (D.S.D. Feb. 27, 2009).

 In Alliance Communs. Coop., Inc. v. Global Crossing Telcomms., Inc., the Plaintiff served the Defendant discovery requests by email.  The Defendants challenged the service by email claiming they never consented in writing to electronic service. Alliance Communs. Coop., Inc., 27.

 The Court rejected the Defendant’s arguments they never consented to electronic service of process.  The Court highlighted the fact that when the defense attorneys signed the Defendants’ Opposition to Plaintiffs’ Motion to Compel they also completed an attorney registration form for electronic court filing.  The attorney registration form included a provision for “consent to service by electronic means as substitute for service…” Alliance Communs. Coop., Inc., 28.

 The Court found the Defendant had consented in writing to receive service of process by email because of the attorney registration form the attorneys completed.  Further, there was no evidence of any prejudice by receiving the discovery requests by email.  Alliance Communs. Coop., Inc., 29.

 Email is a fact of life.  Receiving service of pleadings by email will probably one day be the norm.  Baring incidents of spam filters removing attachments, electronic service of process is a quick and effective way to exchange pleadings, discovery and other moving papers.

Social Networking Sites in Litigation, or the Status Message of a Lawsuit

Facebook, YouTube and a whole list of other social networking sites are used every second of every day.  People are Twittering their lives away online from their BlackBerries.  There is no shortage of growing case law with online conduct leading to civil or criminal litigation.  Here are several recent examples:

 Sentence Enhancement of Criminal Defendant for MySpace Photos & YouTube Video

A criminal defendant had his sentenced enhanced for photos found on his MySpace page and a YouTube video.  The Defendant was photographed holding an AK-47 with a loaded clip after he had been convicted of a felony crime of violence.  United States v. Villanueva, 2009 U.S. App. LEXIS 3852 (11th Cir. Fla. Feb. 25, 2009).

Police Officer Accused of Misconduct over MySpace Profile

A police officer was accused of misconduct after he posted information on his MySpace profile regarding the arrest of John Michael Montgomery.  Cromer v. Lexington-Fayette Urban County Gov’t, 2008 U.S. Dist. LEXIS 65374 (E.D. Ky. Aug. 25, 2008).

Students Suspended from Private Religious School for Online Statements

Two female students were suspended from a private Lutheran school for statements on their MySpace pages about their sexual orientations and a relationship between the two youth.  Doe v. California Lutheran High School Assn., 170 Cal. App. 4th 828, 833 (Cal. App. 4th Dist. 2009).

School Administrator Sued for Discrimination

A middle school administrator was sued for multiple discrimination claims.  Some of the evidence included Facebook groups entitled “Everyone Hates [WW]” and “I Love Watching Fights at School.”  Threats were made on the groups and the youth was assaulted shortly after the online threats.  Wolfe v. Fayetteville, 2009 U.S. Dist. LEXIS 15182 (W.D. Ark. Feb. 26, 2009).

 There are many positive attributes from social networking, including building business and sharing information.  However, there are those who take actions online that can lead to litigation, cause pain or unintended humiliation. 

 A lawyer’s duty of competency may require them to ask their clients about any social networking profiles the client maintains.  Whether or not there is anything relevant about those profiles would completely depend on the case. 

There are situations where a party seeking social networking sites in discovery would be harassment and oppressive.  For example, it is hard to imagine in a breach of contract case where a social networking profile would be relevant.  Conversely, a disability case may be justified to seek photos from a social profile regarding a Plaintiff’s activities. 

In short, whether something from a social networking site is relevant will depend on the case.  Needless to say, there is no shortage of examples from case law with Facebook, MySpace, YouTube and other social networking services being offered as evidence.

I Fought the Law…The Government’s Discovery Obligations in Civil Litigation

“Like any ordinary litigant, the Government must abide by the Federal Rules of Civil Procedure. It is not entitled to special consideration concerning the scope of discovery, especially when it voluntarily initiates an action.”

 Judge Scheindlin once again delivered a powerful opinion with SEC v Collins & Aikman Corporation 2009 U.S. Dist. LEXIS 3367; Fed. Sec. L. Rep. (CCH) P95,045 (S.D.N.Y., Jan. 13, 2009).  In Collins & Aikman, the SEC produced 1.7 million documents (10.6 million pages) in multiple Concordance databases with different metadata protocols.  The SEC in effect claimed they did not need to identify specific documents responsive to the discovery requests based on the work product doctrine.  The Court found this an expansion of the work product doctrine and the SEC was required to produce documents responsive to the discovery requests.

 The Court addressed whether the identification of responsive documents that the producing party organized violated the work product doctrine and how government agencies acting in their investigative capacities must respond to a Federal Rule of Civil Procedure Rule 34 request for production.  Collins & Aikman, 6.

 The Defendant propounded a Rule 34 request for the SEC to produce 54 separate categories for inspection and copying.   The SEC produced 1.7 million documents (10.6 million pages) in 36 separate Concordance databases with different metadata protocols.  The databases did not match the Defendant’s individual requests. Collins & Aikman, 5-6.

The Defendant-Requesting Party understandably had a few objections to what could be viewed as a digital 10.6 million page document dump.  These objections included:

• The SEC failed to identify documents responsive to requests for documents supporting particular factual allegations in the Complaint and instead “produced” 1.7 million potentially responsive documents, requiring the Defendant to search for the relevant needles in the haystack. Collins & Aikman, 8.
• The SEC failed to perform a reasonable search for documents relating to the document request. Instead, the SEC unilaterally limited its search to three of its divisions. Collins & Aikman, 8.

 The SEC responded to the document requests supporting factual allegations with the response, “[the SEC] does not maintain a document collection relating specifically to the subject addressed.” Collins & Aikman, 9.  The SEC produced the Concordance databases and an omnibus of investigative documents claiming the production complied with how the SEC kept the documents in the “usual course of business.”  Id.

 Judge Scheindlin’s analysis focused on the SEC’s claimed attorney work product.  The Defendant-Propounding party argued that the SEC had created 175 file folders that corresponded to the claims against him.  As such, the Defendant wanted those file folders.  The SEC countered that production of the 175 file folders would violate the work product doctrine because those folders were legal theories and other protected analysis. Collins & Aikman, 10.

 The work product doctrine is classic hornbook law that prevents a propounding party from learning the opposing party’s strategy.  The doctrine is to protect “core work product” from being disclosed to the part-opponent, which includes “mental impressions, conclusions, opinions, or legal theories.” Collins & Aikman, 14.

 The Court rejected the SEC position that anything an attorney reviewed was “core” work product.  Collins & Aikman, 17.  The Court equated this as claiming merely determining relevance during document review is all that is required to be protected by the work product doctrine.  Id.

 The Court found “undue hardship” from the production of the litigation database.  The Court stated, “It is patently inequitable to require a party to search ten million pages to find documents already identified by its adversary as supporting the allegations of a complaint.”  Collins & Aikman, 21.

 The Court found the production of the litigation support databases ineffective and that the 175 file folders were not protected by the work product doctrine.  The SEC had to respond to the Defendant’s discovery requests with the responsive documents.  Additionally, any of the 175 file folders that were created by the SEC that could be responsive to any of the Defendant’s requests had to be produced as well.  Collins & Aikman, 41-42.

 What can we learn from this?  First, producing multiple litigation support databases is probably not a good idea.  A response to a Federal Rule of Civil Procedure 34 Request must be specific and not a “document dump.”  Second, merely determining where ESI is relevant is a tough argument for protection by the work product doctrine. 

 Judge Scheindlin’s opinion is another for lawyers to add to their reading lists.  The Judge covered many issues in detail and is worthy of review.