Huge Hole in eDiscovery Process

Airlines don’t just lose luggage.

In antitrust litigation over airline baggage fees, a Court sanctioned Delta for not conducting a reasonable inquiry and a “huge hole” in their eDiscovery process. In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 41-43 (N.D. Ga. Feb. 3, 2012).

Flight Plan to Missing ESI

Delta had implicitly represented that all of the hard drives had been searched and there were no missing back-up tapes. This was not correct. In re Delta, at *41.

The Plaintiff argued, and the Court found, that Delta did not verify that all of the hard drives in their eDiscovery service provider’s evidence locker were searched.  Id.  The apparent breakdown in discovery was summarized as follows:

Defense Attorney emailed service provider list of custodians whose hard drives should have been loaded onto Early Case Data Assessment Software.

Service Provider did not respond with confirmation that each listed person’s drive was on the system. 

Service provider only stated that files were identified by “user employee id, not by name.”

Delta did not show it ever confirmed with their service provider that each hard drive that was supposed to be run through Early Case Data Assessment software actually had been.

In re Delta, at *42-43.

The Court coldly stated, “This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed” and searched through the ECDA software. In re Delta, at *43.

The Court found that the Defendant did not conduct a reasonably inquiry.  Moreover, the Defendant did not substantially justify its failure to ensure the drives were searched. In re Delta, at *43.

This turbulent eDiscovery flight can be summarized as a failure of community between the attorneys and service provider. The Court zeroed in on the lack of attorney confirmation by the service provider that each hard drive was actually searched.

But that is only the beginning of the eDiscovery issues. 

Rule 26(g) Violations

Federal Rule of Civil Procedure Rule 26(g) requires that an attorney of record in a lawsuit sign every response or objection to a discovery request, including initial disclosures under Rule 26(a) (1).  Fed. R. Civ. P. 26(g)(1).

The attorney signature certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) With respect to a disclosure, it is complete and correct as of the time it is made; and

(B) With respect to a discovery request, response, or objection, it is:

(i) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii)  Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and 

(iii) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Fed. R. Civ. P. 26(g)(1)

The Court found that “sanctions under Rule 26(g) were appropriate for Delta’s failure to ensure that all collected hard drives were actually searched and to locate the back-up tapes in the evidence locker and for its myriad inaccurate representations that it had done both.”   In re Delta, at *45.

The Court found the “appropriate sanction” in the case was to pay reasonable expenses, including attorneys’ fees, caused by its Rule 26(g) violation. In re Delta, at *46-47.

The Court based this decision on Delta’s diligent actions since learning of the discovery mistake.  The Defendants’ actions included:

Collection of the two terabytes of data produced in the DOJ investigation and searched the data for documents relevant to this case;

Processed the newly discovered back-up tapes and produced relevant documents;

Employed electronic search terms to accommodate Plaintiffs’ requests;  

Added additional custodians to the search list;

Searched material collected in another unrelated DOJ investigation;

Agreed to numerous additional discovery requests made by Plaintiffs; and

Produced documents prior to summary judgment and well before trial.  

In re Delta, at *46-47.

Rule 26(e) & Rule 37(c)(1) Violations

The Plaintiffs also leveled Rule 26(e) and Rule 37(c)(1) violations for the unsearched hard drives.

The Plaintiffs sought as sanctions an award for fees and expenses for:

(1) The motion;

(2) The portion of the discovery period that must now be extended;

(3) Plaintiffs’ motion for spoliation sanctions; and

(4) Order barring Delta from using any of the recently produced documents as evidence during any proceeding.

The Court held that Delta would not be sanctioned with the exclusion of the late production, because 1) Delta informed the Court and Plaintiffs after they discovered the issue; 2) Requested the Court suspend the case schedule; and 3) there was no evidence the Defendants willfully withheld the discovery.  In re Delta, at *65-66.

The Defendants were sanctioned with reasonable expenses and costs.  As the Court explained:

Delta made myriad misrepresentations to the Court and Plaintiffs that its document production was complete, and it waited almost two weeks to inform the Court of the problems with its document production.

In re Delta, at *65-66.

Bow Tie Thoughts

No attorney wants to be fighting against allegations they violated Rule 26(g) or Rule 37(c) for failing to supplement their initial disclosures or discovery responses.

Effective project management, like air traffic control, is vital to effective electronic discovery.  While this case has a relative happy landing of only being sanctioned with paying attorneys’ fees and expenses, that must not have been a cheap bill. Moreover, a judge blasting attorneys for a “huge hole” in their eDiscovery process is something no one ever wants to see in case law.

This case highlights what to do when something goes wrong: own up to the mistake and take immediate action to fix it. The attorneys deserve credit for the positive action they took when they learned of the error.

Interfacing with an eDiscovery service provider is a must for most law firms, unless they have brought eDiscovery in-house. Even then, the lawyers still need to effectively communicate with the eDiscovery professionals on what has been searched or not searched. There are many ways to verify work has been done, such as with check-lists, weekly project status calls, case wikis and other project management tools.  Which ever is used, make sure they are consistent, work is verified and the information is easy to report if questioned in Court.

A service provider that does not effectively communicate with its lawyers can quickly find itself on the no-fly list if their law firm client endures the crash landing of Rules 26(g), 26(e) and 37(c) violations because of miscommunications on hard drives sitting unsearched in an evidence locker. Such miscommunications can be very innocent, but result in expensive motion practice. Effective project management and communications are the best means to avoid such mid-air collisions of Rules 26(g) and 37(c)(1).

All You Need is Metadata

When it comes to native files with associated metadata, there is no substitute.

In a motion battle over a stipulation on the form of production, the Plaintiff stated that ESI should be produced in native file format with associated metadata.  In the event ESI needed to be redacted or was not available, it could be produced as a static image with a searchable text file and specific metadata.  In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 7999, 10 (S.D. Ohio Jan. 24, 2012).

The Plaintiff went so far as to define “metadata” as follows:

‘Metadata’ means: (i) information embedded in or associated with a native file that is not ordinarily viewable or printable from the application that generated, edited, or modified such native file which describes the characteristics, origins, usage, and/or validity of the electronic file; and/or (ii) information generated automatically by the operation of a computer or other information technology system when a native file is created, modified, transmitted, deleted, or otherwise manipulated by a user of such system.

In re Porsche Cars, at *11, fn 3, Stip. § I(B) at 2.

The Producing Party attempt to throw spikes onto the discovery Autobahn, stating they would only produce native files with metadata only after the Plaintiffs demonstrated a particularized need for the native files. In re Porsche Cars, at *11.

The Producing Party argued that producing in native file format invited “control risks” and could not be Bates numbered.  In re Porsche Cars, at *11-12.

The Producing Party argued that the Plaintiffs had failed to show how the requested metadata was relevant to the lawsuit. In turn, the Plaintiff argued “metadata already exists in each document such that they are merely requesting one form of production (in which the metadata is visible) as opposed to another (in which the metadata is not visible).”  In re Porsche Cars, at *12.

There was nothing in the stipulation that would deprive the Producing Party the right to object to specific discovery requests. Id.

Here I Go Again: Federal Rule of Civil Procedure Recap

A requesting party can state the form of production in their request pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C).  This Rule allows a party to also request metadata when stating the form of production. In re Porsche Cars, at *12-13, citing Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 355 (S.D.N.Y. 2006).

Under Rule 34(b)(2)(D), the producing party can object to the form of production, triggering a meet and confer between the parties to resolve the production dispute. In re Porsche Cars, at *13, citing Fed. R. Civ. P. 34(b) advisory committee’s note, 2006 amendment.

Case law has held that the objecting party must demonstrate any undue burden in producing electronically stored information.  In re Porsche Cars, at *13.

Production Traffic Stop

The Court distinguished the Defendants’ opposition cases to producing metadata on the grounds the cases involved native file/metadata production requests where the producing party had already produced files in a different format.  In re Porsche Cars, at *13-14.

In the current case, no production had taken place yet, as the dispute was over a production stipulation.  As stated in Aguilar, “[c]ourts have generally ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form.” In re Porsche Cars, at *14, citing Aguilar, 255 F.R.D. at 352.

The Court held the following:

Here, Plaintiffs have specified a production format pursuant to Rule 34(b)(1)(C) well in advance of any production. The Court finds no requirement that Plaintiffs specify a form of production pursuant to Rule 34(b)(1)(C) and simultaneously demonstrate why this form is relevant to each of their requests. Once Plaintiffs request native format/metadata at the outset, the burden would shift to PCNA to object to this form as unduly burdensome. At that point the parties would discuss the need for the requested format and negotiate accordingly. Thus, the Court will grant Plaintiffs’ request for native format with metadata absent a showing by PCNA that such a production would be unduly burdensome.

In re Porsche Cars, at *15.

Bow Tie Thoughts

In the now over five years since the 2006 Amendments to the Federal Rules of Civil Procedure, there should be no question that a requesting party can state the form of production in their request.  While the producing party can object to the form, there is absolutely no requirement that a requesting party must at the outset demonstrate a showing that native files are relevant; Rule 34 gives the requesting party the right to name their form of production.

Arguing that native files would be difficult to control without Bates numbering in a production is problematic at best. Native files collected in a defensible manner have a control number with the MD5 Hash value. Using the MD5 Hash is one way the files can be managed, but the machine language of a random 32 alphanumeric is not really “human friendly” for review.  However, there can be a “human friendly” control number with the same numbering methodology of Bates numbers created during data processing for the discovery platform the production will ultimately be reviewed in by the requesting attorneys.

In the event of any claims of spoliation, forensic analysis would show that the file type has been changes. As for the control number, parties must learn to let go of the idea that ESI is like paper that must be physically branded with a number for document review. The fact a “control number” or “Document Id” appears in a database with the corresponding file should not be treated any differently than a paper document with a Bates number on it for document review.

Santa Clara County Mock Trial Tournament

High school students across California are participating in the California Rights Foundation statewide mock trial tournament.  The 2012 fact pattern involves a murder trial layered with numerous hearsay issues and a hint of eDiscovery for the students.

Prosecution Expert Describing the Fatal Attack

The Santa Clara County Courts, Santa Clara County Bar Association and Santa Clara County Department of Education host the Santa Clara County Mock Trial Tournament.

Closing Arguments by a Student Defense Attorney.

There are 20 high schools participating this year and over 150 students, nearly 40 judges volunteering to preside over the tournament and over 100 attorneys donating their time to serve as scoring attorneys during the competition.

This is my second year coaching a high school team. I have been extremely proud of their performance, from delivering opening statements with confidence, to witnesses using Exhibits on direct examination, to the students’ knowledge of evidence in making objections.

Not to mention the fact they all learned to tie bow ties or scarves. Beau Ties Ltd of Vermont once again worked with us in making the ties and scarves affordable for the youth.

2011-2012 Santa Clara High School Team

The entire tournament is an excellent testament to how supportive and kind the legal profession is to the community. Many attorneys have spent months working with students, in addition to all of their daily responsibilities.

Defendant testifying to her innocence of the crime.

Law firms and eDiscovery service providers were instrumental in donating money to cover the competition costs.  They all donated without any hesitation.  The 2012 Sponsors include:

Access Data Group

kCura Corporation

Hoge Fenton Jones & Appel

Rossi, Hamerslough, Reischl & Chuck

Littler Mendelson, P.C.

Digital Strata

Advanced Discovery

The Tournament will run the rest of the month in Santa Clara. The California Finals will be in Sacramento at the end of March.