A Three Page Order Hitting De-Duplication & Litigation Holds

From the plains of Kansas comes another short and powerful order by Magistrate Judge David Waxse.  On Constitution Day, Judge Waxse was very busy in White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 U.S. Dist. LEXIS 85849 (D. Kan. Sept. 18, 2009).  For an earlier discussion of this case, please see The Express Way to Your Hard Drive and What Happens When the Requesting Party Does Not State a Form of Production?.

The Court ordered the parties to complete the following discovery by October 1, 2009:

1)       Defendant’s production of de-duplicated data.  The Court required the Defendants to “provide their computer expert and technician used for the de-duplication process to explain and describe this process, including the technique and criteria used by the process, to Plaintiff’s expert.” White, 1-2.

2)       A meet and confer between experts on a search protocol for PST’s to find three email messages. White, 2.

3)       A search to be performed with the both experts present on the PST data. White, 2.

4)       Defendants were to perform an immediate privilege review. White, 2.

5)       Non-privileged search results were to be produced to Plaintiff counsel immediately. White, 2.

6)       Defense production of the litigation hold notice issued at the beginning of the case.  White, 2-3.

De-Duplication: Separating the Clones from the Twins

If you have never heard of de-duplication, or have heard of it but have been afraid to ask what it is, it is defined as “the process of separating duplicative email messages, word processing documents, and other computer files from your electronic file collection.”  Michael R. Arkfeld, Arkfeld on Electronic Evidence, Glossary, G-5 (2^nd. Ed.).

As one can imagine, de-duplication requires technology to reduce multiple identical digital copies (image a true DNA clone) down to one.  Now imagine electronically stored information such as an Excel file that has been emailed from a Defendant to a Plaintiff.  This file is not an exact copy (thus like a twin), because the metadata can be different by who opened the file last, or other smaller changes that make it a different file, thus something you might not want to “de-dupe.” 

I can imagine the Defendants’ expert explaining they used a specific software tool and “de-duped” by metadata fields or MD5 Hash Values or some other defensible process.  It will be interesting to see what is next reported in this case. 

 Litigation Hold Notice Production

A Court generally requires production of a litigation hold letter if there have been issued of spoliation (See, The Holding Pattern: Lessons Learned on Litigation Holds).  In this case, the Court required the production of the litigation hold notices and that such production was agreed not be a waiver of the attorney-client privilege or work product doctrine.  White, 3. 

Tools that generate and track litigation hold notices are now commercially available and will make such productions easier in future litigation.

There are No First Amendment Rights in Online Gaming Social Networking Sites

 

A Plaintiff sued Sony Computer Entertainment America Inc., for violating his claimed First Amendment rights by banning the Plaintiff from Sony’s Playstation 3 Network for violating Sony’s terms of use. Estavillo v. Sony Computer Entm’t Am. Inc., 2009 U.S. Dist. LEXIS 86821 (N.D. Cal. Sept. 22, 2009). 

For those not familiar with Sony’s Playstation 3 Network, think Second Life meets video games.  Sony’s Playstation 3 Network’s homepage describes the service as a “3D social gaming community that allows PLAYSTATION®3 users to meet, chat, plan, and launch into games together.”

The Defendant brought a motion to dismiss for failure to state facts sufficient to state a First Amendment claim.  Estavillo, 1-2.  The Court agreed.

Failing to State a Plausible First Amendment Claim

The First Amendment right to free speech prohibits the Federal and state governments from limiting speech, not private actors.  Estavillo, 3.

Sony’s Playstation 3 Network is solely a private forum for a commercial product.  Estavillo, 5-6. While Sony’s Network is highly interactive, the Network is not part of the Federal or any state government, nor does it provide anything similar governmental functions.  Estavillo, 6. 

The Plaintiff did not state any plausible First Amendment arguments, as there was no government action infringing on any First Amendment rights, but a private forum. 

Bow Tie Thoughts

Time will tell if free or paid social networking sites are ever viewed as a “traditional public forum” with plausible First Amendment rights.  I do not think so, as all of these services are created and maintained private companies, subject to terms of use agreements.

Biker Attacks, Cabarets & Online Jurisdiction: Lessons in Staying Home and Safely Watching TV

A Pennsylvania Pro se Plaintiff sued a Massachusetts “cabaret” for its employee’s failure to call 911 while he was being attacked by Hell Angels.  No, this is not a “Sons of Anarchy” episode, but an actual court case: Spuglio v. Cabaret Lounge, 2009 U.S. App. LEXIS 20398 (3d Cir. Pa. Sept. 14, 2009).

The Plaintiff sued in Pennsylvania and the Massachusetts Defendant brought a motion to dismiss for lack of personal jurisdiction. 

The Plaintiff claimed personal jurisdiction was proper over the Defendant in Pennsylvania because the Defendant maintained an “active” website.  Spuglio, 2-3.

The Court dismissed the case for lack of personal jurisdiction. 

Standards for Online Personal Jurisdiction

Personal jurisdiction from a website depends on “the nature and quality of commercial activity that [the defendant] conducts over the Internet.” Spuglio, 4, citing Zippo Mfg. Co. v. Zippo Dot Com, Inc.,952 F. Supp. 1119, 1124 (W.D. Pa. 1997); see also Toys “R” Us, Inc. v. Step Two, SA, 318 F.3d 446, 453 (3d Cir. 2003) .

Google Searches & Personal Jurisdiction

The Pro se Plaintiff’s evidence supporting an active website was a printout from Google of the Defendant’s address.  Spuglio, 2. 

The Court of Appeals was gracious in not bluntly saying “No” to the Pro se Plaintiff.  

The Court of Appeals held that using Google to locate the Defendant’s address was not an “active” website to establish personal jurisdiction.  Spuglio, 5.  Nor was a hyperlink to a website administrator’s email address sufficient to show an “active” website.  Spuglio, 7.

A party does not have control over a Google search and what is passively available online from an Internet search.  Spuglio, 5. Even if there were reviews on Google (or Yelp), those are not paid advertisements by a party, let alone an active website controlled by a party.  Furthermore, the Court of Appeals stated established law that “merely posting information online is insufficient” to establish “nationwide” jurisdiction.  Spuglio, 5-6.

The Court of Appeals held that subjecting a party to personal jurisdiction because of a Google search would not “comport with fair play and substantial justice.” Spuglio, 6, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). 

The Court dismissed the case for lack of personal jurisdiction.

Bow Tie Lessons

Courts have consistently held for over a decade that passive websites are not a gateway to general or specific jurisdiction.  Seeking personal jurisdiction over a party because of a Google search would cause chaos in jurisdictional analysis, let alone drive “fair play and substantial justice” off a cliff.

A Picture is worth a Thousand Words, but Sanctions are Priceless

The Defendants in Green v. McClendon, 2009 U.S. Dist. LEXIS 71860 (S.D.N.Y. Aug. 13, 2009) attempted to purchase a $4.2 million painting.  As the Defendants’ marriage ended in divorce, the Defendants (who never took physical ownership) did not complete their payments. 

The Plaintiff sought sanctions against both the Defendant and her lawyer for failure to preserve electronically stored information.

Mixing the Paint

The Defendants originally negotiated the purchase of the $4.2 million painting with a $500,000 down payment at an international art event in New York City.  Green, 2.   The Plaintiff kept the painting until the scheduled final payment. Green, 2.

The Defendants’ marriage ended in divorce and the final payment never came. 

Painting a Picture for Spoliation

The Plaintiff sued for breach of contract and promissory estoppel in October 2008.  Initial disclosures were filed in early December and written discovery requests right before Christmas Eve, which is never a fun stocking stuffer.  Green, 4. 

As discovery continued to be painted across computer screens, the Defendants represented to the Plaintiff they had thoroughly searched for responsive documents and produced accordingly.  Green, 4.

The Plaintiff brought a motion to compel.  The Defendants were ordered to produce all electronically stored information and certify the responses were complete.  Green, 4. 

The Di Vinci Code of Excel Spreadsheets

The Defendant produced an Excel spreadsheet from her home computer on 37 artworks.  Green, 5-6. The Plaintiff sought basic information on the Excel file, such as the date it was created, modified and authors.  Green, 6.  The Defendant in turn produced three more versions of the Excel file. Green, 6.

The Defendant claimed the spreadsheet was created by someone to organize the Defendant’s art files, but nothing more on its origin. Green, 7. 

The Plaintiffs brought a motion for a forensic examination of the Defendant’s personal computer and sanctions. Green, 7.

However, any forensic examination in the words of the Plaintiff would have been a “useless exercise.” Green, 8.  The Defendant had a “son of a friend” who was “familiar with computers” reinstall the operating system on her computer.  Green, 8.  All the data was copied to four CD’s.  The Defendant’s attorney did not acquire the data until April 2009 and did not review them until June 2009.  Green, 8. 

The Plaintiff wanted to paint a spoliation masterpiece seeking the following sanctions:

 (1) Additional time to depose the Defendant regarding the Excel spreadsheet and ESI, at her expense. Green, 8-9.

 (2) An order directing the defendant to identify the person who created the spreadsheet; Green, 9.

(3) Payment of costs incurred by the plaintiff in bringing this motion, including attorneys’ fees; and, Green, 9.

(4) An adverse inference that the Defendants understood that they had in fact purchased the painting and added it to their personal collection. Green, 9.

The Duty to Preserve

As easy it is for a layman to tell the difference between art by Pablo Picasso and Winslow Homer, the Defendant failed in their duty to preserve.  Green, 13-14.

The duty to preserve began at the latest when the lawsuit was filed.  Green, 14. Once there was a duty to preserve, the Defendants needed to enact a litigation hold. Green,13.  The Defendant should have known the Excel spreadsheet would have been relevant to the litigation, especially considering the fact there was a discovery request for any documents regarding the artwork.  Green, 14.

The Court noted that the duty to preserve first attached to the attorney, who “has ‘a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.” Green, 15.  Moreover, “Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.” Green,16, citing Qualcomm Inc. v. Broadcom Corp., 05 Civ. 1958-B, 2008 U.S. Dist. LEXIS 911, 2008 WL 66932, at *9 (S.D. Cal. Jan. 7, 2008), vacated in part on other grounds, 2008 U.S. Dist. LEXIS 16897, 2008 WL 638108 (S.D. Cal. March 5, 2008.

A Failure of Discovery Obligations

The Court held the Defendant attorney failed to meet their discovery obligations.  Green, 16.  The Could stated:

Unless Mrs. McClendon brazenly ignored her attorney’s instructions, counsel apparently neglected to explain to her what types of information would be relevant and failed to institute a litigation hold to protect relevant information from destruction. Moreover, despite numerous representations to the contrary, it is highly unlikely that counsel actually conducted a thorough search for relevant documents in Mrs. McClendon’s possession in connection with their initial disclosure duties or in response to the plaintiff’s first document request. If that had been done, counsel certainly would have found the spreadsheet from Mrs. McClendon’s personal computer files. Green, 16-17.

Failure to Supplement under Federal Rule of Civil Procedure Rule 26(e)

The Court further found there was no justifiable delay in producing the CD’s with the Defendant’s electronically stored information.  Green, 17.  A party must supplement discovery pursuant to Federal Rule of Civil Procedure Rule 26(e) and instead waited for the Plaintiff to request the material.  Green, 17-18. 

Federal Rule of Civil Procedure Rule 26(e) might be an angry giant in e-discovery cases.  Three years ago, you rarely saw a court citing a party’s continuing obligation to supplement discovery.  There were several cases this summer on this issue and I think courts are showing some backbone on failed discovery productions with both Rules 26(e) and 26(g).

A Culpable State of Mind

The Court held the Defendants were at a minimum negligent by 1) Failing to enact a litigation hold; 2) Failing to search for responsive ESI; and 3) Failing to supplement discovery.  Green, 18.  Additionally, there is case law holding a failure to enact a litigation hold is gross negligence.  Green, 18.

Adverse Inference

As with many other adverse inference cases, the Plaintiff failed to show the Defendant created an “unfair evidentiary imbalance,” because all of the ESI was copied to CD’s.  If there was evidence that relevant electronically stored information was destroyed, this might have had a different outcome. Green, 20-21. 

Other Sanctions

The Plaintiffs were entitled to an additional deposition of the Defendant and the identity of who created or modified the Excel spreadsheet.  Green, 23.  The Plaintiff was also entitled to costs to be proven with a fee application. Green, 23.

The Court did not close the door on additional sanctions.  If discovery later showed the destruction of relevant ESI, the issue of an adverse inference instruction could be heard again. 

Bow Tie Lessons

Litigation holds and the failure to preserve electronically stored information appears regularly in case law.  Attorneys are well served by discussing with their clients litigation holds and preservation to avoid sanctions for both themselves and their clients.

Search Terms in Federal Litigation

Discussion of Federal cases regarding key word searchers under Federal Rule of Civil Procedure Rule 34.

Lions, Tigers & Bears: Failing to Preserve ESI, Search Terms and Forensically Imaging Computers

In Treppel v. Biovail Corp., 2008 U.S. Dist. LEXIS 25867 (S.D.N.Y. 2008) the Plaintiff brought an action alleging a smear campaign against him. The Defendants in turn claimed the Plaintiff defamed their CEO and caused their stock to drop in value.   No matter what the truth is, these parties are no longer sending each other Christmas cards.

After a dismissal battle, the Plaintiff brought a motion to compel ESI responses and sanctions for the loss of electronically stored information. 

Litigation Hold History

The facts of the lawsuit occurred between 2000 to April 2002 after the Plaintiff published two reports that were unfavorable to the Defendant. Treppel, 7.

The Plaintiff brought the lawsuit in April 2003 and served a second amended complaint in August 2003.  Treppel, 7.

Sometime in May 2003, Defendant’s Corporate Counsel learned of Plaintiff’s lawsuit.  Corporate Counsel orally instructed two Defense key players to enact a litigation hold to preserve ESI.  No written litigation hold was issued and Corporate Counsel did not follow-up.  Treppel, 7.

The facts become protracted as preservation instruction trickled down to different key players.  Some individuals did not recall ever hearing the instruction from Corporate Counsel to preserve ESI.  Treppel, 7.

No instructions were ever issued to the IT department before December 2003 to enact a litigation hold. Treppel, 8.

Plaintiff Preservation Letter & Defendants’ Actions

The Plaintiff sent a preservation letter on December 3, 2003. Treppel, 8.

Corporate Counsel again gave litigation hold instructions to key players, however he was not “involved in issuing at that stage any notice to anybody personally.”  Treppel, 9. 

Preservation Blues

Despite being on notice of litigation, the Defendants first preserved back-up tapes from their three locations in December 2003.  Treppel, 9.  The Defendants’ email and file servers were not preserved until March 2005.  Treppel, 9.

One key player’s laptop was not preserved until August 2005.  Treppel, 11.  The email messages on this one laptop were downloaded directly and not preserved on any of the other email servers.  Id.

Why Work Together on Search Terms & Discovery? 

After the rejection of a proposed comprehensive e-discovery plan, the Defendants proposed the parties agree on employee files to be searched with key words.  Treppel, 11. 

Plaintiff counsel stated “it is defendants’ obligation to simply search its [sic] records and respond to those demands. Plaintiff has no obligation to assist defendants in the process by providing search terms or any other guidance.” Treppel, 11-12.

The seeds of war now sown, the bombing began with the Plaintiff’s motion to compel discovery responses and preservation of ESI. Treppel, 12.

The First Wave of Searches

The Court ordered the Defendants to conduct several searches after the first motion to compel.  Treppel, 12.  Six search terms were used on fourteen presumably key players.  Treppel, 13.  The Defendants performed the search on the December 2003 and March 2005 back-up tapes.  Treppel, 13.

Second Wave: Search Terms and Preservation

The Plaintiff requested the Defendant expand their search with 30 additional key words and custodians.  Treppel, 13. 

The Defendants claimed the request was untimely and overly broad and only produced discovery pursuant to the original search terms.  Treppel, 13. 

The Motion to Compel Restoration and Search of All Back Up Tapes

The Plaintiff brought a second motion to compel for the Defendants to restore and search their back-up tapes, plus the lone laptop.  Treppel, 14. 

Timing is everything when it comes to back-up tapes.  In this case, the litigation was filed in May 2003 and the facts took place in 2002.  Moreover, the chance that back-up tapes from 2005 would have anything relevant for 2002 would be remote.  Treppel, 14-15.  The Court applied Fed. R. Civ. P. 26(b)(2)(C)(iii) and found that searching the back-up tapes would impose a burden that would outweigh any benefit of conducting a search.  Id.

Or so it seemed…

Victory from the Jaws of Fed. R. Civ. P. 26(b)(2)(C)(iii)

The Court acknowledged two big exceptions to the above analysis:  Email messages were likely created after the litigation started, even if other ESI files were not.  Treppel, 16-17.  As such, the Defendants were ordered to restore and search the back-up tapes for one email server for three separate date ranges. Treppel, 17.

The second exception was a back-up tape that was not searched at all.  This unexplored ESI needed to be restored and search as well. Treppel, 17.

The Duty to Preserve

The Defendant failed to enact a litigation hold to fully preserve electronically stored information.  The Defendant knew of pending litigation, which would have triggered the duty to preserve in May 2003.  However, the Defendants did not enact a litigation hold until December 2003, seven months later.   Treppel, 20-21. 

The Defendant’s document retention policy was to preserve the tapes for one year.  The Court noted that the failure to enact a hold in May 2003 would have caused ESI to be lost as far back as May 2002, when the facts giving rise to the litigation took place.  Treppel, 21. 

The lone laptop that was “off the grid” of the email system was not imaged until 2005, two years after the lawsuit was filed.  Treppel, 22-23. As such, ESI pertaining to the litigation was most likely lost. 

A Time for Sanctions

The Court held the Defendant failed to preserve electronically stored information.  The question was what sort of sanction was warranted. Treppel, 39-40.

The Plaintiff (understandably) went for an adverse inference instruction.  This failed because the Plaintiff could not prove “the likelihood that any evidence that was destroyed would have supported his claims.”  Treppel, 39. 

The Court’s analysis on the Defendant’s culpable state of mind was fascinating.  The Court in effect bifurcated whether there was negligence vs gross negligence with the timing of Zubulake IV and their legal protégée as the benchmark, along with the Plaintiff’s preservation letter.  Treppel, 28-30.

The Court found there was only negligence to not preserve back-up tapes by December 2003, because of the state of the law and technology.  This was not gross negligence, since the Defendants attempted to place some form of a litigation hold in place. Treppel, 28-30.

However, post December 2003 there was gross negligence or recklessness.  Zubulake IV and related cases had been published and the Defendants were discussing preservation of evidence with the opposing party.  Despite these events, the Defendants only preserved one back-up of the December 2003 file and email servers, which allowed ESI going back to December 2002 to be lost.  Treppel, 28-30.

The Court ordered a forensic search of the Defendant’s laptop at the Defendant’s expense.  Treppel, 39.  The results were to be reviewed for privilege and then produced to the Plaintiff was a privilege log.  Treppel, 40.

The Court further ordered the restoration and search of email servers and back-up tapes for specific date ranges.  Treppel, 40. 

Bow Tie Thoughts

The summer of 2009 will be remembered for litigation hold cases coming out almost on a weekly basis.  Attorneys must prepare their clients for litigation readiness on how a litigation hold is deployed, communicated and procedures for preserving electronically stored information.

Federal Rule of Civil Procedure Rule 26 Discussion

 In depth discussion on discovery obligations from my new seminar on Federal Rule of Civil Procedure  Rules 26 and 34.

Disturbo se if I Don’t Produce Discovery?

In Gotlin v. Lederman, 2009 U.S. Dist. LEXIS 78818 (E.D.N.Y. Sept. 1, 2009), the Plaintiff was precluded from using Italian medical records because of a failure to include the records in their initial disclosures.  

In the words of the Court, the Plaintiff’s attorney “provided virtually no discovery during the nearly eleven-month period allotted by the Court for fact discovery” and failed to attend a settlement conference. Gotlin, 3. 

It is no stretch of imagination to see how these actions resulted in the preclusion of evidence. 

Che Macello Discovery

The Plaintiff’s attorney belatedly produced 571 pages of “previously undisclosed, untranslated Italian medical records” on a CD-ROM after the close of expert discovery.  Gotlin, 7.  The only prior related discovery had been a 9 page report that was a summary of “the as-then-unproduced underlying Italian medical records.” Gotlin, 6. 

The Plaintiff produced the Italian medical records on August 3, 2009.  Gotlin, 7.  The Plaintiff’s attorney had received the medical records in May 2008 and had neither reviewed or translated the records.  Gotlin, 7-8.  The Plaintiff’s attorney did tell his expert about the medical records, who declined to review them.  Gotlin, 8.  The records laid in wait in the attorney’s file cabinet for over a year.   Gotlin, 8.

Initial & Supplemental Disclosures under Federal Rules of Civil Procedure Rule 26(a) & Rule 26(e)

Federal Rule of Civil Procedure Rule 26(a) requires that “a party must, without awaiting a discovery request, provide to the other parties . . . a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Gotlin, 9-10, citing Fed. R. Civ. P. 26(a)(1)(A)(ii).

Federal Rule of Civil Procedure Rule 26(e) requires that a party supplement their initial disclosures or discovery responses, when they learn “that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” Gotlin, 10, Fed. R. Civ. P. 26(e)(1)(A).

The duty to supplement a discovery response is triggered when a lawyer “obtains actual knowledge that a prior response is incorrect.” Gotlin, 10, citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433 (S.D.N.Y. 2004).

The Preclusion of the Italian Medical Records

The Plaintiff had no justification in not producing the Italian medical records.  These records should have been included in the Plaintiff’s initial disclosures and should have been produced pursuant to the Defendant’s discovery requests.  Gotlin, 13.  The Plaintiff’s attorney only excuse was his difficulty in “juggling 20 clients.”  Gotlin, 14.

As the Court stated:

In this connection, [Plaintiff’s attorney] essentially admits that his failure to disclose was due to his own neglect…which, unfortunately, represents yet another example of [Plaintiff’s attorney] having failed to competently manage his discovery obligations in this case. Simply put, in circumstances such as these, attorney neglect or oversight is not an acceptable explanation for failure to disclose. Gotlin, 14.

The Court evaluated three factors in deciding whether to preclude the use of the Italian medical records.  These interests were 1) The Explanation for the Failure to Disclose 2) Importance of the Evidence, and 3) Prejudice Against the Defendants for the Failure to Disclose.  Gotlin, 14-17. 

The Court found the attorney’s answer “unsatisfactory” for not producing the Italian medical records.  Gotlin, 14. Having an active caseload is not an excuse for failing to meet your discovery obligations.

The Court found the evidence could have some importance on the Plaintiff’s quality of life, despite the fact the records sat untranslated in a file cabinet for a year.  Gotlin, 15-16. 

As for the prejudice, there would be costs for translation, delays and even a possible trial continuance.  Gotlin, 16-17.  Expert discovery would also likely need to be reopened to evaluate the medical reports. 

The Court found the factors weighed in favor of precluding the evidence, given the amount of time that had past and the prejudice upon the Defendants, pursuant to Federal Rule of Civil Procedure Rule 37(c).  Gotlin, 17-18.

Bow Tie Lessons

Discovery cannot sit on the shelf and collect dust if a party intends to use it in their case.  The challenge with hard drives full of electronically stored information can compound this issue if attorneys do not access and analyze their cases with their clients once litigation is reasonably foreseeable.

The Narrowing of Search Terms in Motions to Compel Electronically Stored Information

There is a continuing trend in search term cases: You do not see judges discussing experts and Federal Rules of Evidence 702.  Now, perhaps this is just in cases where custodian names or simple search terms were at issue, such as William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009) and Asarco, Inc. v. United States EPA, 2009 U.S. Dist. LEXIS 37182 (D.D.C. Apr. 28, 2009). 

The main focus of Curtis v. Alcoa, Inc.,2009 U.S. Dist. LEXIS 71581 (E.D. Tenn. Mar. 27, 2009) was whether specific discovery was protected by the attorney-client privilege (a great exercise for law students taking Evidence).  A secondary focus of the opinion was a motion to compel an additional ESI search with revised keywords.  Curtis, 38-39.

The Plaintiffs’ wanted seven additional keyword combinations run against nine custodians (which included such terms as “Enron/OPEB” and “Sarbanes-Oxley/OPEB”).  Curtis, 38. 

The Defendants’ claimed the searches had been run against seven of the nine custodians.  Agreeing to run the searches over the additional two custodians seemed to be a non-issue.   Curtis, 39. 

The Court ordered the Defendants, if it had not already been done, to run the designated searches with the revised key words on the nine custodians and indentify the responsive search results.  Curtis, 39. 

Are the Angels Treading Lightly?

“…for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”

Magistrate Judge Facciola, United States v. O’Keefe, No. 06-CR-249, 2008 WL 44972, 8 (D.D.C. Feb. 18, 2008).

I think there is a rule of thumb with search terms: If you will need to prove the responsiveness of your searches or whether forensic analysis was performed, you will see an expert report or an evidentiary hearing. 

Cases such as Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 47841 (D.D.C. May 27, 2009); United States v. O’Keefe, No. 06-CR-249, 2008 WL 44972 (D.D.C. Feb. 18, 2008 ); and Equity Analytics, LLC v Lundin, 248 F.R.D. 331 (D.D.C. 2008 ) fall into this group. 

On the other side of the spectrum, courts are narrowing search terms to specific individuals (such as Dunkin’ Donuts Franchised Rests. LLC v. Grand Cent. Donuts, Inc., 2009 U.S. Dist. LEXIS 52261 (E.D.N.Y. June 19, 2009)) or variations of custodian names (William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co.). These situations require active meet and confers and interviews with custodians so search terms are not in designed wildly without reason.

The key to both is attorneys proving their search methodology with affidavits or experts being deposed where search terms must be defended.  In the first instance, software tools that generate search term reports will likely be affidavit exhibits.  Both situations will probably require lawyers working with an outside vendor or in-house e-discovery professions to ensure search term responsiveness.

Strategies for a Litigation Hold Letter

Discussion of case law examples of what should go in a litigation hold letter.