About bowtielaw

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

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.”

Even A Judged Questioned Why Ask for Permission to Use Predictive Coding

HighFiveI do not normally want to high five Federal judges, but Judge Ronald Buch, a Tax Judge in Texas, sure deserved one after his Dynamo Holdings opinion.

The discovery dispute can be summed up as a battle over backup tapes that had confidential information. The Requesting Party wanted the tapes; the Producing Party wanted to use predictive coding to produce what was relevant, because the cost for reviewing the material for privilege and relevancy would cost $450,000 with manual review. Dynamo Holdings v. Comm’r, 2014 U.S. Tax Ct. LEXIS 40 (Docket Nos. 2685-11, 8393-12. Filed September 17, 2014.)

The Requesting Party wanted the backup tapes to analyze metadata on when ESI was created. Moreover, the Requesting Party called “Predictive Coding” an “unproven technology.” The Requesting Party attempted to address the Producing Party’s cost concern with a clawback agreement. Dynamo Holdings, at *3.

After an evidentiary hearing with experts on the use of predictive coding, the Court granted the Producing Party’s motion to use predictive coding. Judge Buch had a “dynamo” quote on the entire issue of asking to use predictive coding:

 “And although it is a proper role of the Court to supervise the discovery process and intervene when it is abused by the parties, the Court is not normally in the business of dictating to parties the process that they should use when responding to discovery. If our focus were on paper discovery, we would not (for example) be dictating to a party the manner in which it should review documents for responsiveness or privilege, such as whether that review should be done by a paralegal, a junior attorney, or a senior attorney. Yet that is, in essence, what the parties are asking the Court to consider–whether document review should be done by humans or with the assistance of computers. Respondent fears an incomplete response to his discovery. If respondent believes that the ultimate discovery response is incomplete and can support that belief, he can file another motion to compel at that time. Nonetheless, because we have not previously addressed the issue of computer-assisted review tools, we will address it here.

Dynamo Holdings, at *10-11.

It is so refreshing to see a Judge address the issue of requesting to use a specific technology. No one does a motion to compel asking for permission on what lawyers should do document review. Moreover, no moving party asks permission to use visual analytics, de-duplication, or any of the other outstanding technology available to conduct eDiscovery.

The opinion ends with that if the Requesting Party believed the discovery response was incomplete, then a motion to compel could be filed, which is exactly the way the process should work. The issue should not be “can we use this technology,” whether the production is adequate or not, which requires evidence of a production gaps or other evidence that not all responsive information was produced.

Well done Judge Buch.

 

Don’t Stipulate to Not Follow the Form of Production Rules

No-jackintheboxHere is my advice: NEVER agree to a stipulation to produce native files when “it is more practical to do so” and agree to productions in PAPER, PDF’s, or TIFFs. Melian Labs v. Triology LLC, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal.Sept. 4, 2014).

That is what happened in Melian Labs v. Triology LLC. It reads like a personal Sum of All Fears for anyone who has spent years working with ESI, because the Court denied motions to compel email and spreadsheets in native files with metadata, because of the parties’ Rule 26(f) stipulation.

The Requesting Party challenged the Producing Party’s email production, because the production was “7 large PDF image documents, which each appear to be a  compilation of ESI improperly collected and produced” and the collection was not forensically sound.  Melian Labs, at *4.

The Producing Party claimed it did not need to forensically collect discovery. Further, the Producing Party claimed the email was printouts directly from Gmail or Microsoft. Id. 

ScreamingMad

The Court stated that the Requesting Party was complaining about the form of production and not that the production was incomplete. As the parties had agreed to the form of production being paper, PDF’s, or TIFFs,  Fed. R. Civ. P. 34(b)(2)(E) did not control, but instead the parties’ stipulation. Melian Labs, at *4-5.

The Court stated the following on the stipulation and the discovery dispute:

Instead, it states that ESI may be produced in paper, PDF or TIFF. That producing the documents in a searchable format would ease Triology’s review does not render Melian’s production deficient. Triology fails to articulate why metadata is important to emails, when every email should contain the information sought on the face of the document. To the extent that emails have this information cut off or it is not apparent from the face of the email (i.e. as may be the case with BCC), Triology is entitled to the complete email with the agreed upon metadata, and Melian must provide it upon request.

Melian Labs, at *5 (Emphasis added).

Based on the above, the Court DENIED the moving party’s request  to compel the production of all emails in a searchable or native format is denied. Id. 

Things get equally frustrating for spreadsheets.

The Producing Party admitted reading some of the spreadsheets were difficult and produced those ones in native file upon request. Melian Labs, at *5-6. However, the Producing Party stood their ground that they agreed to produce native files “when it is more practicable to do so.” Id. 

The Court held again that the joint stipulation controlled and that the Producing Party could NOT be compelled to produce spreadsheets in native file format. Melian Labs, at *6 (emphasis added). However, the Court did end with a subtle suggestion the Producing Party would produce spreadsheets that were “easily readable without seeking court intervention” in the event of any disputes over the readability/legibility of spreadsheets. Id. 

Bow Tie Thoughts

I hate stipulations like this one. Producing in native file format is the only practical option when it comes to ESI. If I were a Federal Judge, I would summarily deny any such Rule 26(f) stipulations that called for the production of ESI as paper, PDFs, or TIFFs, on the grounds that the agreement would violate Federal Rule of Civil Procedure Rule 1 by unnecessarily driving up costs. The fact the parties end up shackled to a bad form of production agreement should serve as a warning label to never let this happen again.

I worked on a case where over 2000 documents were produced as 8 non-searchable PDF’s. To say it was a mess was an understatement. We were able to correct the production gamesmanship with a useable production, but it made document review very difficult until it was corrected.

There is value in native files, because it provides objective coding for databases and expedites review, both of which further the goals of Rule 1. Moreover, there is amazing review technology that empowers lawyers to identify communication patterns, key players, and other useful information. Printing Gmail as PDF’s dramatically undercuts that ability to make use of these tools.

That being said, the Requesting Party could have very forceful deposition questions on what was done to preserve ESI, the steps to identify responsive discovery, and what methodology was employed to ensure substantive and embedded metadata was not destroyed after the duty to preserve triggered. Additional questions could be asked to identify formulas in printed spreadsheets of Excel files. This might force the production of un-produced native file spreadsheets.

Discovery must be collected in a defensible manner. Many people call this process “forensically sound.” This might not mean that every computer has a mirror image made of it, but a targeted collection. Using targeted collection tools can also be done in a defensible manner, with many great technology options to use. That being said, I would question the adequacy of a product done where the collection process was printing email as PDF’s. It might be justified in a small case, but if in Federal Court with high stakes, I would strongly encourage having a mirror image done of the subject computers.

Nebraska, Where Proportionality is Alive and Well in Discovery

Nebraska stampOne lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit.

The case is a Fair Housing Act suit involving claims that students were prohibited or hindered from having “emotional assistance animals in university housing when such animals were needed to accommodate the requesting students’ mental disabilities.” United States v. Univ. of Neb. at Kearney, 2014 U.S. Dist. LEXIS 118073, 2 (D. Neb. Aug. 25, 2014).

A protracted battle over the scope of discovery broke out between the parties. The Defendants argued the search, retrieval, and review for responsive discovery was too expansive and would have been unduly burdensome. Kearney, at *5-6. As the Government’s search requests included “document* w/25 policy,” you can see the Defendant’s point on having broad hits to search terms. Kearney, at *20.

The Government’s revised search terms would have 51,131 record hits, which would have cost $155,574 for the Defendants to retrieve, review, and produce the responsive ESI. Kearney, at *5-6. This would have been on top of the $122,006 already spent for processing the Government’s requests for production. Kearney, at *7.

The Court noted that the Government’s search terms would have required production of ESI for every person with disability, whether they were students or contractors. Kearney, at *6-7. The Government argued the information was necessary, and justified, in order to show discriminatory intent by the Defendants. Id.

The Defendants wanted the scope of the discovery requests narrowed to the “housing” or “residential” content, which would have resulted in 10,997 responsive records. Kearney, at *7.

The Government did not want to limit the scope of discovery and recommended producing all the ESI subject to a clawback agreement [notice not a protective order] for the Government to search the ESI. The Defendants argued such an agreement would violate the Family Educational Rights and Privacy Act by disclosing student personal identifiable information without their notice and consent. Kearney, at *8.

Motion practice followed with the Defendant requesting cost shifting to the Government for conducting searches, the use of predictive coding software, and review hosting fees. Kearney, at *8-9.

The Court ordered the parties to answer specific discovery questions, which the Government did not answer, on “information comparing the cost of its proposed document retrieval method and amount at issue in the case, any cost/benefit analysis of the discovery methods proposed, or a statement of who should bear those costs.” Kearney, at *9.

The Court was not keen on the Government outright searching the personal data of others unrelated to the case. As the Court stated:

The public and the university’s student population may be understandably reluctant to request accommodations or voice their concerns about disparate or discriminatory treatment if, by doing so, their private files can be scoured through by the federal government for a wholly unrelated case. The government’s reach cannot extend that far under the auspices of civil discovery; at least not without first affording all nonparties impacted with an opportunity to consent or object to disclosure of information from or related to their files.

Kearney, at *18-19.

The Court stated it would not order the production of over 51,000 files with a clawback order. Moreover, the cost to review all of the ESI exceeded the value of the request. Kearney, at *19.

The Court did not accept the Government’s claim that it needed to conduct an expansive search. Kearney, at *19-20. The Court stated the following on the fundamentals of civil discovery:

Searching for ESI is only one discovery tool. It should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery is complete. For example, the government proposes search terms such as “document* w/25 policy.” The broadly used words “document” and “policy” will no doubt retrieve documents the government wants to see, along with thousands of documents that have no bearing on this case. And to what end? Through other discovery means, the government has already received copies of UNK’s policies for the claims at issue.

Kearney, at *20.

The Court further stated that “absent any evidence that the defendants hid or destroyed discovery and cannot be trusted to comply with written discovery requests, the court is convinced ESI is neither the only nor the best and most economical discovery method for, and depositions should suffice—and with far less cost and delay.” Kearney, at *21.

Bow Tie Thoughts

This case has significant privacy interests, but at its core the issue is one of proportionality. What was the cost of discovery and its benefit? In the end, the cost of expansive search terms that impacted the third party rights of others, outweighed the benefit of the discovery to the case.

The fact we have amazing search technology that can search electronic information does not mean we can forget how to litigate. The use of “search terms” cannot swallow the actual claims of a case.

It is heartening to see a Court say no to the data of unrelated third parties being enveloped into a discovery production. While there are many ways to show discrimination, requesting the electronically stored information, protected by Federal and most likely state law, of third parties should give any Court pause.

The use of predictive coding to focus the scope of discovery, or visual analytics to identify relevant information, or clustering to organizing similar information is fantastic technology to expedite review. However, the fact that technology exists still means lawyers have to use requests for admissions, interrogatories, and have requests narrowly tailored for responsive ESI.

 

Remembering Browning Marean

I was deeply saddened to learn of the passing of Browning Marean. Both Craig Ball and Chris Dale have written very eloquently about Browning. I encourage you to read both of their tributes.

Browning Marean was the senior statesman of eDiscovery. There are few people who had the grace and knowledge of Browning. The man had the voice of a classic radio broadcaster who made audiences stop and listen.

Browning_JudgePeck_LTWC2009

Browning set the gold standard when it came to giving a presentation. Whether he was moderating a panel discussion, delivering a keynote, or holding court with a judge, his style was unmatched.

To say Browning was an “early adopter” of technology is an understatement. Browning was the geek’s geek. The man loved technology. He joked he liked trying out a product before even the Beta test.

Browning had a natural gift to identify useful new technology. It was Browning who introduced me to Zoom.us, the product I now use for my audio and video podcasts. His one call to tell me about the product made a huge impact on work I do weekly.

I enjoyed my video calls with Browning. He usually greeted me with, “Joshua my good man, how are you?” I am going to greatly miss discussing the law, politics, and life with Browning.

I will never forget my adventures with Browning. He was a gentleman who cared about people, and a lawyer who set a high bar for the rest of us to follow.

Browning was a legend across the entire world of eDiscovery and he will be missed.

Browning_Iconect-April2012