About bowtielaw

I am an attorney CLE presenter on e-Discovery issues.

Excel-ing at eDiscovery (Guest Post on Everlaw)

spreadsheetMany litigation support professionals think Excel files are the bane of discovery.

Attorneys with a fixation of wanting a Bates Stamp on electronically stored information demand Excel files be converted from their native application to a static image, causing one Excel file to explode into a 500 page PDF.

To learn more about a recent case with an Excel file that would not open, and advantages of reviewing Excel files in native file format, check out my guest post on Everlaw.

The Advantages of Contacting Opposing Counsel 34 Minutes After Inadvertent Disclosure of One Email

Ahhhhhhh!!What happens when a lawyer inadvertently produces an attorney protected by the attorney-client privilege? A Magistrate Judges and District Court Judge orders the receiving party to destroy the inadvertently produced email.

Iowa is the home of where John Atanasoff invented the first computer in 1939. It is also the home of Federal Judges who conduct excellent legal analysis of whether an inadvertent production waives the attorney-client privilege over an email.

Defense counsel inadvertently produced a privileged email and once learning of the production, called Plaintiff counsel within 34 minutes. Pick v. City of Remsen, 2014 U.S. Dist. LEXIS 128411, at *2-4, 11 (N.D. Iowa Sept. 15, 2014).

The Plaintiff refused to destroy the email and instead offered to redact the attorney-client advice.

The Court applied the following test for determining whether a privilege had been waived:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,

(2) The number of inadvertent disclosures,

(3) The extent of the disclosures,

(4) The promptness of measures taken to rectify the disclosure, and

(5) Whether the overriding interest of justice would be served by relieving the party of its error.

Pick at *7-8, citing Gray v. Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996), (citing Hydraflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993)).

The Court spent the most time analyzing the reasonableness of the precautions Defense counsel undertook to preserve the confidentiality of the email message. The Court quickly dismissed the argument it was unreasonable to not include a privilege log, since the attorney did not find any privileged emails in his review. Pick at *8.

The inadvertently produced email was “inconspicuously located among various non-privileged email messages.” Pick at *7-8.

The Court summarized that the defendants provided their attorney with 440 pages of documents. This included 183 email messages, with some pages containing more than one email. Id.

The suspect email was under a non-privileged email and started in the middle of a page that ran onto the next page. There was no marking that the email was privileged. Moreover, the printed email had no borders defining where one email began and the other began. Id. 

The other factors were quickly decided in favor of the producing party, given that this was only a single message and it took less than an hour for the attorney to catch the inadvertent production. Pick at *9-12.

The Court held the email contained “classic legal advice that should be protected by the attorney-client privilege” and ordered the receiving party to destroy the inadvertently produced email.

Bow Tie Thoughts

The Court made the right decision in this case. However, part of the reason the production happened was because the production was on paper (based on the content of the opinion). If the discovery had been reviewed in a review application, there is a high chance the confidential message would have been found during review.

Reviewing discovery as “paper” requires reading each and every email. When email is maintained in its native format, it can be searched based on keywords, dates, senders, and other objective information. Moreover, leveraging advanced analytics or predictive coding, the producing party can identify not just responsive information, but privileged as well.

Code-ReviewThere is also the very direct approach for determining whether there are emails that could be protected by the attorney-client privilege: search for any emails to or from a lawyer. Determine whether the email is providing legal advice or if a client is requesting legal advice. If these conditions are met, the attorney-client privilege could apply.

There are many types of privileges, from spousal, to clergy, to tax, and medical advice. The first step in privilege review is determining which privileges apply to your case. It is also wise to determine if your case contains confidential information, such as medical records or personal identifiable information.

Once the privileges and confidential information is determined, the review team can set-up the appropriate issue coding. It is important to know that Judges want to see more than an email is “attorney-client privilege.” The issue coding can have sub-issues, such as “Email from Client Requesting Legal Advice” or “Email to Client Providing Legal Advice.” Depending on the needs of the case, a lawyer might need to include more information to comply with the rules for creating a privilege log.

After document review is completed, a lawyer can search for all privilege information. Based on these results, a privilege log can be created by exporting the necessary objective coding and subjective issue coding to an Excel spreadsheet for production to the requesting party.

Can You Ask the Court to Order a Party to Follow the Duty to Preserve?

videopresentationmanA Pro Se Plaintiff in a prison inmate case requested the Court order the Defendants not to destroy any relevant video surveillance footage from a specific date. The Court declined,  because the Defendant was already subject to the duty to preserve. Ross v. Conner, 2014 U.S. Dist. LEXIS 146887, at *17-18.

The Plaintiff [rightly] was concerned that the Defendants had a document destruction policy of one-year. However, the Court found it unnecessary to issue an order for the Defendants to preserve information that was already subject to the duty to preserve. 

The Court explained as follows:

Under the doctrine of spoliation, parties have a duty to preserve (including a duty to not destroy) evidence when litigation is filed or becomes reasonably anticipated. To fulfill the duty to preserve relevant evidence, “[o]nce a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a “litigation hold” to ensure the preservation of relevant documents.” Here, if Defendants destroy any exculpatory evidence they will be subject to sanctions. However, because they are already under a duty to preserve evidence, an order from this Court is not necessary. 

Ross, at *18.

Bow Tie Thoughts 

There are no shortage of cases where the duty to preserve has gotten attorneys and parties a like in trouble. However, it is difficult to ask a Court to order a party to “follow the rules,” because the party already has a duty to so. However, if there is evidence of wrongdoing by the party that was subject to the duty to preserve, the outcome could be different.

Plaintiffs are well served to include a “preservation letter” to the opposing party early in the case. Some attorneys include this letter with their complaint. This acts as both a shot across the bow on the importance of preserving ESI, but puts the opposing party on notice of what sources of ESI are relevant in the case.

The Duty to Preserve on Island Time

No vacation should end with people becoming Plaintiffs. Sadly, that happened on a trip to Hawaii when someone had a slip and fall in a hotel garage after exiting an elevator. Riley v. Marriott Int’l, Inc., 2014 U.S. Dist. LEXIS 135728 (W.D.N.Y.Sept. 25, 2014).

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The Defendant hotel maintained both video surveillance of the area and “sweep logs” when the area was swept. However, the Defendant lost both. Neither the Plaintiffs or Court said “Mahalo” over this loss.

Be Prepared to Explain What Happened

The Defendant’s Loss Prevention Manager responsible for preserving information for the Hotel explained that the video system records 24-hours a day, is stored on a hard drive, and those records are maintained for 30-days. Riley, at *2-3. The Manager watched the security footage after being told of the Plaintiff’s fall, her removal from the area in a wheelchair, followed by hotel employees placing wet floor signs, and then sweeping up the water. Riley, at *3. The video was turned over the hotel’s liability insurance company. Id.

The Defendant failed to explain any reason for its loss of the video evidence and opined the sweep logs were destroyed per the document retention policy. Riley, at *10-11. The Court went on to state the following on the loss of the video:

Although facing a serious motion for sanctions with potentially significant consequences, Marriott apparently did not investigate the destruction of the relevant evidence or, if it did, explain the results of the investigation. Thus, the only information that this Court has concerning the destruction of the evidence are the assertions of Marriott’s counsel made during oral argument. Even then, Marriott’s counsel was unable to provide any facts concerning the circumstances under which the video footage was destroyed. The failure to provide the Court with any sworn facts from persons with knowledge of the destruction of the challenged evidence demonstrates such a lack of diligence that it suggests bad faith destruction. In any event, Marriott’s failure to preserve the entire video footage relating to Linda’s accident and the sweep logs for the day in question despite the Hotel’s loss prevention employee’s testimony that he knew that he had a duty to preserve relevant evidence constitutes, at a minimum, gross negligence.

Riley, at *11-12.

The Court found that the lost evidence prejudiced the Plaintiffs and the Defendant’s failure to explain how the information was destroyed amounted to gross negligence, thus allowing an inference the information was unfavorable to the Defendant. Riley, at *14.

Be Precise in The Remedy You Request

The Plaintiff’s request for relief asked the Court to “remedy the injustice caused by defendants by ruling the evidence in [p]laintiffs’ favor and by granting summary judgment.” Riley, at *17.

The Court interpreted the requested relief as to strike the Defendant’s answer or an adverse inference instruction. The Court held striking the answer was “too drastic” and instead issued an adverse inference instruction to “permit, but not require, the factfinder to infer that the missing video footage would have been favorable to the [Plaintiffs] and unfavorable to [the Defendant].” Riley, at *19.

Bow Tie Thoughts

Ukulele _0130

The Duty to Preserve never goes on vacation. Moreover, no lawyer should be sent into Court armed only with a Ukulele to sing a song on not knowing what happened to relevant electronically stored information.

If a party has actual notice of a triggering event and has reviewed relevant evidence, that information absolutely has to be preserved. This requires the information to be defensibly copied, which could mean a mirror image or a targeted collection, depending on the needs of the case. What then follows are chain of custody forms that document each step of preserving the information. The data should be maintained in a secure medium, which could be an evidence locker with biometric security (again, depending on the needs of the case).

This case is interesting because despite the inability to explain what happened, the Court refused to strike the Defendant’s answer. I agree this is the right call, especially considering the fact the Court found gross negligence for the lost data.

18 Missing Email Messages is not like 18 Minutes of Missing Watergate Tape

Vintage Reel-to-Reel Tape PlayerRosemary Woods was not involved in this document production.

In motion practice over the adequacy of a production, the Plaintiffs were able to show that the Producing Party did not produce 18 email messages that were produced by a third-party.

As such, the Plaintiff sought production of search efficiency reports that was conducted as an audit and investigation by two law firms for the Producing Party. The goal was to identify the missing discovery from the production, opposed to the specifics of the Producing Party’s discovery efforts. Freedman v. Weatherford Int’l, 2014 U.S. Dist. LEXIS 133950, at *7-8 (S.D.N.Y.Sept. 12, 2014).

Judge Francis stated that “suggested remedy is not suited to the task,” because only three of the eighteen email messages would have been identified by the search terms used in the audit investigation. Freedman, at *8.

EmailAtSybolsThe Plaintiff’s argument focused on that the information produced by third-parties should have been produced by the Producing Party, opposed to whether the requested searches would have identified the missing information. Freedman, at *9. According to the Defendants, only one unproduced document would have been identified from the requested searches. Id.

The Producing Party had reviewed “millions of documents” and produced “hundreds of thousands” of documents that totaled nearly 4.4 million pages. Citing to the “proportionality rule” from the Federal Rules of Civil Procedure, the Court invoked the maxim the Rules “do not require perfection.” Freedman, at *9, citing Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y. 2012).

The Court stated it was “unsurprising that some relevant documents may have fallen through the cracks;” however, the remedy sought would unlikely cure any production defects. As such, the Court denied the production of the search report. Freedman, at *9-10.

Bow Tie Thoughts

Judge Francis’ opinion puts very proportional view of challenging production adequacy: you first have to demonstrate a production is inadequate and then demonstrate the remedy makes sense. Proving three email messages were missing out of thousands does not justify conducting searches that would not produce any missing information. The remedy has to be proportional to problem.

Proportionality is a balancing of interests. Do 18 missing emails out of thousands justify new searches? Well, if those 18 emails were the key smoking gun messages, maybe. Ask Rosemary Woods or Lois Lerner about missing information.

The message I take away from Judge Francis’ opinion, is that if you have emails from a third-party that show a production deficiency, you have to offer a proportional remedy. If the offer is for additional searches that would only produce one or two of the missing emails, that is not a proportional remedy. Alternatively, if you proffer search terms that would have generated “hits” on 17 out of 18, maybe that would tip the scales in favor of running additional searches. At the end of the day, the effort sought has to have value to the case and not be an experiment in futility.

Guest Post on Everlaw: Is An Attorney Responsible for Manually Reviewing Discovery Before Production?

Review-TeamI prepared a guest post for Everlaw’s blog on an attorney’s ethical duty to follow a client’s instruction to manually review documents prior to production.

Is expert testimony required to show a lawyer breached their standard of care or is this issue one a jury can decide on their own?

Check out the case summary and tips on document review at Everlaw:

What is an attorney’s Duty of Loyalty to review discovery documents before producing them to an opposing party? That issue recently arose in a summary judgment battle between a client and his former attorneys.

The Case:

The client claimed that the law firm had committed malpractice because the attorneys failed to review discovery responses before production to the opposing party – after being directed to do so by their client. Things really went wrong when the client was hit with sanctions, and the law firm denied knowledge of certain documents in court. Price Waicukauski & Riley v. Murray, 2014 U.S. Dist. LEXIS 130680 (S.D. Ind.Sept. 18, 2014).

 Continue reading at Is An Attorney Responsible for Manually Reviewing Documents?

How Apple Successfully Recovered eDiscovery Production Costs

Apple-Bite-1Taxation of cost cases involving eDiscovery often end with the prevailing party not recovering any costs. However, in the true spirit of “think different,” Apple was able to recover $238,102.66 in costs for “the amounts associated with electronic preparation and duplication, not the intellectual effort involved in the production, such as searching or analyzing the documents.” Apple Inc. v. Samsung Elecs. Co., 2014 U.S. Dist. LEXIS 132830, at *88, 91 (N.D. Cal. Sept. 19, 2014). The production work included processing documents, uploads, and document productions. Id.

Apple initially sought $1,486,475.01 in costs for the use of their online hosted repository, which uploaded and produced documents to Samsung, in the amount of $287,555.45 between two law firms, and service providers that collected and processed paper and electronic documents that were uploaded to the repository for $1,198,919.56. This amount was later reduced by $9,509.40, for a new total of $1,476,965.61. Apple, at *87-88.

A declaration provided by one of Apple’s attorneys stated the fees did not contain the intellectual effort involved in producing the discovery, but only the amounts associated with the electronic preparation and duplication. Apple, at *88. Moreover, the fees did not include costs from hosting the data, licensing fees for the software, or vendor consulting time. Id.

In the Northern District of California, Local Rule 54-3(d)(2) allows for eDiscovery costs analogous to “making copies,” but not “intellectual effort.” Id. Moreover, these costs must be connected to discovery produced to the adverse party. Apple, at *89.

The issue for the Court ultimately on what was recoverable was what was actually produced to the opposing party.

Math-Student

Based upon the different motions, the Court stated that Apple had produced 338,860 documents, totaling 2,944,467 pages, each document averaging 8.69 pages; however, Apple, uploaded a total of 2,101,808 documents. Apple, at *90.

The Court surmised that if the “same average page count of 8.69 for all documents that Apple produced, Apple uploaded a total of 18,264,712 pages in this litigation.” Apple, at *91.

The Court explained based on Apple’s estimation that it had “uploaded a total of 18,264,712 pages of which 2,944,467 pages were ultimately produced.” Id. As such, the Court determined that 16.12% of Apple’s eDiscovery costs were spent on productions to Samsung and awarded Apple $238,102.66. Id.

Bow Tie Thoughts

I want to congratulate Apple’s attorneys for successfully recovering over $200,000 in eDiscovery product costs. Many taxation of cost cases do not end with the prevailing party taking anything home.

eDiscovery costs cases can make some lawyers do their best Chevy Chase/Gerald Ford impression of, “It was my understanding no math would be involved.” However, no taxation of cost case has the luxury of not determining how much was spent on a production.

Taxation of cost cases are complicated. While some Court would like costs cases to be as simple as a Rob Schneider saying, “Makin’ Copies,” eDiscovery requires special skills to collect and produce ESI.

Some jurisdictions take a fairly hard view that processing and all of the steps in doing a production are not recoverable, because the process does not result in a “copy.” The local rule in the Northern District is fairly forward thinking comparatively thinking when it comes to recovering costs associated with production ESI.

Another factor making taxation cases complicated is the fact how service providers invoice. Most service providers do not have attorneys on staff giving advice on how to document each step to explain how processing is “necessary for the production.” Documenting how a production is de-NISTed, de-duplicated, or emails excluded by domain name (such as irrelevant news services or sales messages), are all steps that enable a Court to decided whether that step was necessary for production.

My best advice on how to navigate this area of the law is to understand your local rules (or Court of Appeal case law). The next step is to work with your service provider at the beginning of the case on how they invoice to demonstrate how every step they take produce ESI is necessary to the case for the production, and not merely “intellectual efforts.”