Bow Tie Thoughts on 2010

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My thoughts on the best conferences and legal issues in 2010.

The Status Message of Contempt: Don’t Forget Social Media

You should never forget about social media if you are in a lawsuit.

In a trademark dispute, the Plaintiff brought a contempt motion because infringing marks were posted on Facebook.  Fortune Hi-Tech Mktg. v. Isaacs, 2010 U.S. Dist. LEXIS 135130 (E.D. Ky. Dec. 21, 2010). 

The parties had an Agreed Order where the Defendant was required to remove the allegedly infringing marks off their different websites.  Fortune Hi-Tech Mktg. at *3. 

Unfortunately, the Defendant forgot to take down the material on two Facebook groups.  Fortune Hi-Tech Mktg. at *6-7. 

In order to show contempt, a party must “produce clear and convincing evidence that shows that ‘[the opposing party] violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court’s order.’” Fortune Hi-Tech Mktg. at *6. 

In this case, while the Defendant had “forgotten” about the Facebook groups with the marks subject to the Agreed Order, the Court held the contempt allegation was moot.  Fortune Hi-Tech Mktg. at *7.  After receiving the “reminder” of a contempt motion, the infringing marks were removed from Facebook.  Id. 

The Defendant did dodge a contempt violation, but the Court did a very stern warning, “[T]he Court will not accept any further excuses. The Agreed Order is clear, and [the Defendant] must make all reasonable efforts to ensure that he continues to obey the Court’s Agreed Order.” Fortune Hi-Tech Mktg. at *8. 

Bow Tie Thoughts

Social media is easily created and can potentially be forgotten about.  Whether it is in issuing a litigation hold or complying with a take down order, do not forget social media.

Online Dating, Tweets & Early Discovery

The online dating service Zoosk sued 25 Doe Defendants for libel per se, trade libel, and intentional interference with prospective economic advantage for an alleged defamatory campaign against the Plaintiff.  Zoosk Inc. v. Doe, 2010 U.S. Dist. LEXIS 134292 (N.D. Cal. Dec. 9, 2010).

This date gone wrong begins with a profile created on the Plaintiff’s website that contained adult content.  The Plaintiff blocked the user’s account, because it violated the Plaintiff’s terms of use.  Zoosk Inc.at *2.

Shortly thereafter, one or more individuals created a Twitter account and posted allegedly defamatory statements about the Plaintiff. Zoosk Inc.at *2.

Direct messages, emails and cease and desist notices were exchanged.  Zoosk Inc.at *2-3.  However, the alleged conduct continued. 

The Plaintiff was able to identify 8 IP addresses that accessed the relevant Twitter account from the publically available information on Twitter.  Zoosk Inc.at *3. 

The Plaintiff sought early discovery from third-party Internet Service Providers to provide information to identify the Defendants.  Zoosk Inc.at *3.  The third-parties [rightly] wanted a court order to produce the information to the Plaintiffs, because of the Cable Communications Policy Act. 

In order to conduct early discovery, a party must show good cause.  Zoosk Inc.at *4.  Good cause is shown by the following: 

(1) The Doe defendant is identified with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court;

(2) The Plaintiff recounts the steps taken to locate and identify the defendant;

(3) The Plaintiff demonstrates that the action can withstand a motion to dismiss; and

(4) The Plaintiff proves that the discovery is likely to lead to identifying information that will permit service of process.

Zoosk Inc. at *5. 

The Court found the Plaintiff had shown good cause for early discovery, because the information would reveal the identities of the unknown Defendants.  Zoosk Inc.at *6.

The Court explained the Plaintiff had identified the Doe Defendants with “sufficient specificity” with the eight IP addresses from the Twitter account.  Zoosk Inc.at *6.  Additionally, the Plaintiff attempted to identify the Defendants with publically available information.  Id. Furthermore, the Plaintiff communicated via Direct Message and Email, plus sent a cease and desist notice.  Id.

The Court also stated the Plaintiff’s complaint was pleaded with sufficient particularity to survive a motion to dismiss.  Id.

Finally, the Internet Service Providers stated they had the identifying subscriber information that the Plaintiff was seeking.  Id.

Accordingly, the ISP’s were ordered to provider the identifying information to the Plaintiff. 

Bow Tie Thoughts

In the early days of the Internet, individuals could bravely hide behind a keyboard and make defamatory, or just hurtful, comments about others. 

The anonymity of the Internet is fading away.  Individuals can be identified by their IP addresses or other information that an Internet Service Provider can be compelled to disclose.  While there are various Federal laws that must be met before such disclosure,  they are not a barrier for Plaintiffs to find those who have defamed them.

Top 10 Tips for Conducting e-Discovery Webinar

Competency in e-Discovery is one of the greatest challenges in e-Discovery. 

What metadata do you request?  

When do you issue a litigation hold to a client? 

What technology do you use to review electronically stored information?

How do you prepare for a meet and confer over ESI? 

What evidentiary concerns are there over ESI? 

Please join Professor Fred Galves on January 11, 2011 at 10am PST for the Top 10 e-Discovery Tips for 2011.  Professor Galves is the instructor for Civil Procedure, Evidence and

Computer Assisted Litigation for Pacific McGeorge in Sacramento, California. Professor Galves will discuss 10 e-Discovery tips, discuss recent case law and share his insight on competency in e-Discovery.

The Top 10 Tips will include…

Litigation Holds

Data Preservation

Review

Evidence Concerns

To register for the webinar, please click here.

CLE Approved in Nebraska

CLE Pending in California

About Professor Fred Galves (From www.FredGalves.com)

Professor Fred Galves has been a member of the Pacific McGeorge faculty since 1993. Galves lectures widely on the use of technology in the practice of law, including the use of 3D computer animations and virtual reality exhibits. He continues to push the technology transition forward in his Pacific McGeorge classes as well as in his writings for such publications as the Harvard Journal of Law & Technology. He produced the first law review article in the country that used hyper-linked media.

His use of technology in teaching and his computer-assisted litigation course has inspired several universities to recruit Professor Galves as a visiting professor. He has taught at the University of California at Davis School of Law, Fordham Law School, the University of Denver Law School and Southwestern University Law School.

At Pacific McGeorge, Professor Galves teaches Civil Procedure, Evidence, and Computer-Assisted Litigation. He also administers the Street Law International Program in conjunction with Sacramento Charter High School – a program in which law students teach legal concepts and trial advocacy to inner city teenagers, enriching and deepening the law students’ understanding of the law, and motivating young people to pursue postsecondary education and careers in the legal field.

About Josh Gilliland, Esq.

Joshua Gilliland, Professional Development Manager for D4 LLC and a California attorney, is a nationally known thought leader on e-Discovery. Josh is among the vanguard to discuss the cutting edge issues in e-Discovery, including admissibility of electronically stored information, social media and text messages in litigation. Josh is an active member in the Santa Clara County Bar Association, serving on the Law Related Education Committee, Civil Practice Committee and new e-Discovery Task Force.  He has been published in American Lawyer Magazine and Corporate Counsel on social networking litigation. His blog www.bowtielaw.com was also recently named in the 2010 ABA Journal Top 100 Blawgs.

Sailing the Hazards Waters of Search Terms

Shipmates, get ready for a voyage of Electronic Discovery.

A cruise line sued their agents for the Defendants’ alleged failure to “provide proper ship management, care and oversight,” for the Plaintiffs’ cruise ships.  Seven Seas Cruisesn S. DE R.L. v. V Ships Leisure SAM, 2010 U.S. Dist. LEXIS 131606 (S.D. Fla. Dec. 2, 2010). 

In sailor parlance, the ship was not kept in a shipshape and Bristol fashion. 

The Plaintiffs embarked on a voyage to compel the Defendants to run searches for electronically stored information to comply with their discovery requests.  Seven Seas, at *5-6. 

The Plaintiff’s Logbook showed the parties agreed to search terms and that the Defendants would collect responsive, non-privileged, ESI for production.  Seven Seas, at *6. 

The Defendants produced a DVD with purportedly responsive ESI, which the Plaintiff deckhand attorneys reviewed.  The Plaintiffs even deposed one of the Defendants…and then learned that the search terms were in fact never run.  Seven Seas, at *6. 

All associate attorneys were sent to general quarters and broadsides were fired at the Defendants. 

The Defendants’ decks were awash with a motion to compel the Defendants to run the “proper” searches and produce the responses within 10 days, in TIFF format, with extracted text and specific load files for the Plaintiffs’ litigation support platform.  Seven Seas, at *6-7. 

The Plaintiff did allow for the possibility a harbor pilot, specifically a third-party service provider, could run the Defendants’ searches for production.  Seven Seas, at *6-7. 

The “Admiralty” Court noted that the Defendants failed to even oppose the motion to compel.  Seven Seas, at *7-8. 

During Captain’s Mast, the Court granted the Plaintiffs’ motion to compel, in part, by Default.  Seven Seas, at *8-9. 

The Court specifically ordered:

The Defendants shall conduct a search of electronically stored information using the terms submitted by Plaintiffs contemporaneously with the Motion to Compel (DE # 150-1) and produce the results of said searches on or before the close of business on Monday, December 13, 2010. The Defendants shall produce the requested electronically stored information in the format as specified above in this order. If the Defendants are unable to perform the search in the manner specified, the Defendants shall notify the Court no later than Wednesday, December 8, 2010, so that the Court may appoint a third party vendor to perform the search, if necessary. To the extent that Plaintiffs seek to conduct additional or second deposition of certain witnesses based upon the information provided by Defendants in compliance with this Order, Plaintiffs must seek relief by way of a separate motion which specifically identifies the reasons for the additional deposition.

            Seven Seas, at *9. 

Bow Tie Thoughts

If the Defendants had filed a motion to repel boarders, there may have been some debate over the sufficiency of search terms.  However, that was not this case.

Search term efficiency is like the race to measure Longitude; the one who knows how to search will rule in the waves. 

In the 18^th Century, this race was won by John Harrison, who invented the chronometer. 

Today, it is won by attorneys and e-Discovery experts who understand how to develop defensible search to eliminate false-positive results and find responsive data.

The ocean may now be digital, but we still have seas to navigate.

A PDF Production is Not How a Native File is Ordinarily Maintained

In a production dispute over native files, Magistrate Judge Paul Cherry shows us (again) that producing native files as non-searchable PDF’s does not comply with Federal Rule of Civil Procedure Rule 34. Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574 (N.D. Ind. Nov. 17, 2010). 

Federal Rule of Civil Procedure Rule 34(b)(2)(E) states:

 (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

Jannx Med. Sys., at *8.

The Plaintiffs produced certain native files as PDF’s.  The Defendants argued that the files were normally maintained in a searchable form and the PDF production destroyed their ability to “effectively search or analyze the information.”  Jannx Med. Sys., at *9.  As the Court explained,

“Defendants are unable to determine which of the produced documents are associated with particular maintenance transactions, how the produced reports were generated, or even what data the reports rely upon.” 

Jannx Med. Sys., at *9-10. 

Plaintiffs’ Arguments for PDF Production

The Plaintiffs claimed that their PDF production complied with Rule 34, because the Defendant did not state a form of production.  Jannx Med. Sys., at *10.

The Plaintiffs argued that two cases, one before the 2006 Amendments to the Federal Rules of Civil Procedure, justified their PDF production.  Jannx Med. Sys., at *10.  The Court did agree there were times when a PDF production complied with the Federal Rules of Civil Procedure.

This was not one of them.  Jannx Med. Sys., at *10-11. 

The Court stated the Plaintiffs “ignored” the case law they cited, which discussed the Advisory Committee Note to the 2006 Amendments.  Jannx Med. Sys., at *11.  As the Court restated,

“[I]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”

Jannx Med. Sys., at *11 (citation omitted). 

Don’t Make Productions More Difficult to Search

The Plaintiffs also argued that since the Defendant did not state a form of production, they were, in the words of the Court, “stuck with the form in which Plaintiff chose to produce the information.”  Jannx Med. Sys., at *11.

The Court again cited to the 2006 Advisory Committee Notes, stating,

“[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” 

Jannx Med. Sys., at *12, citing Fed. R. Civ. P. 34 Advisory Committee’s Note on the 2006 Amendments.

As the Court so aptly put: “It appears that this is exactly what Plaintiff has done in this case.”  Jannx Med. Sys., at *12.

The Court ordered the production of ESI “in an electronic database format that allows the information to be reasonably usable, i.e., fully searchable and manipulable, with the connections between data fields intact.”  Jannx Med. Sys., at *12.

Bow Tie Thoughts

Case law is riddled with discovery games of stripping searchable features from native files.  Such tactics drive up discovery costs because of wasted time in coding databases that should be populated with fielded data; unnecessary OCR costs of static images when ESI was already searchable; and associate attorneys spending the best years of their lives reviewing now non-searchable static images one file at a time, when they should be searching for what is relevant. 

Civil litigation unfortunately can be a blood sport.  Between the “gotcha” tactics and legitimate concerns for redacting confidential information, Courts will be dealing with cases like the above for years to come.

Stamping Out Spoliation

Perryman v. Potter is an employment discrimination case involving a postal worker who was not selected for a lateral transfer to a supervisor position.

The Defendant brought a motion for summary judgment. The Plaintiff claimed that the Defendant’s destruction of notes from the interview process entitled the Plaintiff to a presumption the notes showed evidence of a pretext in her summary judgment opposition. Perryman v. Potter, 2010 U.S. Dist. LEXIS 129619 (N.D. Ohio Dec. 8, 2010).

The Court found it was inappropriate for an adverse inference finding of pretext, because the Plaintiff did not show the Defendant destroyed his notes in bad faith. Perryman, at *9.

The Post Office did not advise its hiring officials to save their hiring notes. Perryman, at *9. Additionally, the Defendant destroyed his notes before he knew about the Plaintiff’s administrate complaint or received a litigation hold. Perryman, at *10. Furthermore, there was no evidence that the Post Office acted in bad faith with their policies. Perryman, at *10. To be blunt, an allegation of bad faith is not evidence of bad faith.

Bow Tie Thoughts

2010 began with litigation holds as the fireball in the night no one dare ignore for fear of being incinerated.

While the preservation of evidence must be taken seriously as both an ethical and discovery duties, the fear mongering of sanctions is over.

Courts across the country have ensured reason prevails in litigation holds, requiring a showing of bad faith or a showing of prejudice after the close of discovery for spoliation sanctions. This may require showing production gaps (ie, missing emails over an entire week or month) or other discovery misconduct.

As we end 2010, it is time to focus on solutions to preserve the electronically stored information in litigation, not a rush to the courthouse over whether data was preserved.

Lawsuits are about the subject matter of a case, not the game of discovery “gotcha.” Tools are commercially available for economical and defensible preservation of ESI (for example, Pinpoint Labs and Guidance have self-executing collection software/devices), that can perform targeted collections with prepared collection protocols. These tools make sense for private individuals in the horror of litigation who need to preserve two folders on their laptop that contain 34 Word Docs and Excel files and 7 emails from Outlook.

Will this be done in every case? No, there are times when a full forensic image will be required. However, the days of forensically imaging computers as standard preservation practices will end.

Watch for a paradigm shift as service providers start deploying inexpensive preservation devices for targeted collections on custodian computers in State and Federal Court. This is especially true in “low” dollar cases over $70,000 or parties facing foreclosure, where costs truly matter. Moreover, targeted collections that select only what is relevant and responsive to a lawsuit will drive down collection costs and ultimately review expenses.

We will continue to see attorney bar numbers muddied by a lack of competency in understand e-Discovery. However, 2011 will continue to see technologies improving in controlling discovery costs. Moreover, the Courts will continue to be a bulwark of proportionality when it comes to preservation and rationality when it comes to spoliation.

Burning the Cost of Production & Review

Everyone got burned in this case, including the Court, the Federal Rules of Civil Procedure and especially Rule 1. Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. Nov. 18, 2010).

On a positive note, the Court was innovative enough to cited Google Maps in a footnote on the distance between the attorneys in San Francisco and the Defendant town.  Brinckerhoff, at *8, fn 5.

Brinckerhoff is an employment discrimination case involving a firefighter and local government.  The opinion does not start on a good note, with the Court stating:

It must be noted that the parties made review of these motions very difficult for the undersigned in submitting more than one joint statement and failing to cooperate in drafting and submitting the joint statement. From failing to include a table of contents to submitting multiple copies of the same document with the order of contents switched around, to filing numerous extraneous pleadings, both parties have exhibited unprofessional conduct which is unacceptable. In future, the court will decline to hear any discovery matter where the Federal and Local Rules are not strictly followed.

Brinckerhoff at *2-3.

The discovery disputes in the case were numerous, including sufficiency of initial disclosures, who was protected by the attorney-client privilege and the lack of a privilege log. 

The electronic discovery issues focused on producing in native file format and requesting metadata.  Brinckerhoff, at *26-33. 

The Plaintiff sought the production of email messages in native file format, the search of two computers and that the Defendants pay for the searches.  Brinckerhoff, at *26-27.

The Defendants argued against native file production, because the Plaintiffs did not raise electronic discovery in the Rule 26(f) conference, or their discovery plan or request the email in native file format. Brinckerhoff, at *28-29.

The Court quickly rapped the Defendant on the knuckles, because they also had, “a responsibility to raise the issue at the discovery conference and affirmatively state that there will be no electronic discovery if it so wishes. The parties have a mutual obligation to discuss this issue at the discovery conference.”  Brinckerhoff, at *29. 

While it is without question parties need to discuss electronically stored information at a Rule 26(f) conference, it is highly problematic for a court to state parties at a meet and confer can agree “there will be no electronic discovery if [a party] so wishes.” 

Given the tone of the rest of the opinion, I believe the Court literally did not mean parties can wish away electronically stored information.

The Defendants argued that Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008) stood for the proposition that electronically stored information cannot be compelled without a meeting between the parties.  Brinckerhoff, at *29. 

The Court expounded that Aguilar was not that simple, because the failure to attempt to resolve ESI disputes without court intervention (i.e., meet and confer), put the moving party in an “uphill battle” to compel ESI.  Brinckerhoff, at *29.  As the Court explained Aguilar:

In considering the moving party’s request for metadata, the court considered multiple factors, including plaintiffs’ delay in seeking the data in this format until after defendants had already produced it in PDF format, and the failure to discuss the metadata at the Rule 26(f) discovery conference. Id. at 352, 359. The court also contemplated the matter practically in terms of whether defendants’ retracing of their steps would yield useful information beyond what plaintiffs had already received, and how many emails had been produced to determine whether plaintiffs would have a difficult time reviewing and managing them. The conclusion was that defendants would not be required to re-produce the documents in a different format. Id. at 360.

Brinckerhoff, at *29-30.

The Court found that the failure to meet and confer over electronically stored information was not a shield to the Plaintiff’s discovery request.  Brinckerhoff, at *31. 

The Court ordered the Defendant to produce metadata for all of the Plaintiff’s performance evaluations and emails (presumably the parent and child messages and attachments), because the data would show when the evaluations were created and modified.  Brinckerhoff, at *31-32. 

The Defendants originally produced the email in the case as paper. 

The Court noted the Defendants claimed the paper was “only eight to twelve inches thick,” to which the Plaintiff countered it was 4,000 pages.  Brinckerhoff, at *31. 

As the Court stated, “In any event, plaintiff will not be hard pressed to review them in paper form. Plaintiff has not shown that any other production in electronic format would result in useful information, other than the missing and allegedly destroyed evaluation of plaintiff.”  Brinckerhoff, at *31.

The Court further denied the Plaintiff’s request to search the two Defendants’ computers, because “Plaintiff has not provided any specific information which would warrant such a search, especially in light of plaintiff’s failure to previously request electronic data.”  Brinckerhoff, at *32-33.

Bow Tie Thoughts

I think this opinion has some major problems.  Granted, from the opening, I could see how some of the decisions were reached.

First, a party cannot agree at a 26(f) conference “there will be no electronic discovery if it so wishes.”  Brinckerhoff, at *29.  That is sort of like saying, “I wish the lawsuit would go away.”  At best, parties would be willfully ignoring evidence if they started agreeing to ignore email and other electronically stored information.  At worst, willfully ignoring discovery would arguably be malpractice. 

Parties should discuss the preservation of electronically stored information, ways to collect the data in a defensible manner and how they wish to review it at a Rule 26(f) meeting.  This could simply mean parties are doing targeted collections or printing email messages as searchable PDF’s.  However, agreeing “there will be no electronic discovery” is simply not a reality. 

The second major issue is leaving electronically stored information converted to 8 to 12 inches of paper.  A party cannot degrade the searchable features of electronically stored information.  The Court in this case acknowledged this maxim in its discussion of the Rule 34 Advisory Committee notes. (see, Brinckerhoff, at *27-28). 

The conversion of ESI to paper runs afoul of not just Rule 34, but Rule 1.  Federal Rule of Civil Procedure Rule 1 states that the Federal Rules of Civil Procedure should “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”  Converting email to paper certainly destroys any searchable features and drives up the cost to search what once was searchable in a litigation support database.  A simple test to prove this, time how long it takes to find the word “evaluation” in a litigation support database verse digging through 4,000 pieces of paper.  Once finished, explain the document review bill to the client.

Not All Productions Are Musicals

In a dispute over the creation of Jersey Boys, we see the production of electronically stored information is no musical. Corbello v. Devito, 2010 U.S. Dist. LEXIS 125207 (D. Nev. Nov. 12, 2010). 

For the opening act, the Court admonished the attorneys for “their lack of cooperation concerning Electronically Stored Information (“ESI”) and the exchange of ad hominem attacks…” Corbello, at *2.

The remaining acts in the opinion danced over the production of electronically stored information and other issues before the closing curtain. 

Working My Way Back to Native File Production

In one of the discovery disputes, the Plaintiff claimed the Defendants had not produced all the changes made to the script from the start of the project to the different stage productions.  Corbello, at *5.  The “New Defendants” admitted that another Defendant had unproduced versions of the script.  Corbello, at *6.

Both Defendants did produce hundreds of scripts and drafts in .pdf format.  Corbello, at *6.

The New Defendants also produced in hard copy a notebook of page changes.  Corbello, at *6.  The top of each page included the date the changes were made before the show opened.  Corbello, at *6.

The New Defendants also produced in .pdf format two comments made using the notes feature of Screenwriter, a software for writing scripts.  Corbello, at *6.

The Plaintiff sought the production of the Screenwriter files in native file format for possible imbedded metadata.  Corbello, at *7.  The Defendant objected to producing in native file format on the grounds the production would be burdensome and duplicative.  Corbello, at *6.

PDF’s Don’t Cry

The Court agreed with the Defendants. 

The Court held producing in .pdf format was a “reasonably usable format” that met their discovery obligations.  Corbello, at *7.

The Court noted that the parties did not agree to native file productions, other than the Plaintiffs preferred the native file format.  Corbello, at *7. Moreover, the Defendants argued they had already produced the information in a reasonably useable format.  Corbello, at *7.

As the Court held:

The New Defendants “need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(2)(E)(iii). The Court finds that to compel additional production of these materials in native format would be an unnecessary burden and an unjustifiable waste of time and resources. The Plaintiff’s request to produce these materials in native format is therefore DENIED.

Corbello, at *7.

Bow Tie Thoughts: Proportionality, Who Loves You? 

Courts must guard against productions going out of control.  If there had been some showing the imbedded metadata was somehow relevant, this case could have turned out the other way. 

Courts are applying principles of proportionality, even though they are not calling it proportionality.  While many times parties will not take their eyes off native file productions, in this case producing simply as PDF outweighed the cost of re-producing in native file format.