Triggering the Duty to Preserve

Plaintiffs requested email sent to or from the Defendants on November 4, 2011 in their April 10, 2012 discovery requests. The Plaintiffs had filed the lawsuit and an emergency preliminary injunction on November 7, 2011, which was attended by Defense counsel. The Defendants claimed producing the emails was impossible, because the Defendant had a 90 day retention policy and the Plaintiff did not serve the discovery requests until April 10, 2012, more than 150 days after the date in question. Stiriling v. St. Louis County Police Dep’t, 2013 U.S. Dist. LEXIS 71435, 1-5 (D. Mo. 2013).

The Court rejected the Defendants’ “impossibility” argument.

The Court explained that the “obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation – most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.” Stiriling, at *3, citing  Kronisch v. United States, 150 F.3d 112, 126 (2nd Cir. 1998) (emphasis added), overruled on other grounds by Rotella v. Wood, 528 U.S. 549 (2000).

The Court held that the duty to preserve evidence began on November 7, 2011, because of the filing of the lawsuit and emergency preliminary injunction hearing, putting the Defendants on notice of the lawsuit and the relevant subject matter. Stiriling, at *3-4.

The Court further held:

As such, Defendants are directed immediately to determine all sources, including back-up computer files, where such emails may still exist. Defendants shall thereafter file a notice with the Court advising of any and all sources from which said emails may be retrieved, and shall show cause why they should not be required to retrieve and produce said documents.

///

IT IS FURTHER ORDERED that Defendants shall immediately make a thorough and complete determination of all sources, including hard copy files and electronic files, and including any and all back-up files, and make a good faith effort to uncover all responsive information in their possession, custody or control.

IT IS FURTHER ORDERED that on or before May 31, 2013, Defendants shall file a notice with the Court advising of any and all sources from which the requested emails may be retrieved, and shall show cause why they should not be compelled to retrieve and produce said emails from those sources.

Stiriling, at *4-5.

Bow Tie Thoughts

Determining the triggering date of the duty to preserve can be fact intensive. Most situations do not have a dispute date followed by the filing of a lawsuit three days later, complete with an emergency hearing for a preliminary injunction. These facts have bright lines to show a triggering date for issuing a litigation hold.

There are several ways to comply with the duty to preserve (Note, freezing the custodian is not one of them).

If dealing with simply one laptop, having a mirror image of the hard drive might only cost $500 (which compared to motion practice is cheap).

Alternatively, if the relevant content is very specific (i.e., there was an emergency hearing on it), a party might have an expert perform a targeted collection on a laptop, to avoid collecting non-relevant files. Which technology to use will turn heavily on the facts of the lawsuit.

Attorneys would be remised to only think in terms of laptops. Relevant data might be on smartphones or tablet PC’s, so asking their clients what computer devices they use is highly recommended.

Denial of “Twitter Appeal”

The New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

Meet & Confer at 10 Paces

There are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.

Is Review Software Not Reasonably Accessible Because of Cost?

W Holding Co. v. Chartis Ins. Co., is a case involving competing proposed discovery protocols. The parties include the FDIC as the receiver of a bank and the former bank directors & officers in a $176 million suit with claims of negligence in making loans. W Holding Co. v. Chartis Ins. Co., 2013 U.S. Dist. LEXIS 52313, 4-9 (D.P.R. Apr. 3, 2013).

The universe of ESI began as approximately 6.8 terabytes of ESI and 921,000 paper documents. W Holding Co., at *6. $2.1 million was spent scanning paper into a searchable digital format. Id.

The FDIC planned to migrate data from one hosted review application to another to give access to party opponents of specific data. The projected cost for the hosting included:

Data migration of $450 per gigabyte

$0.185 per page for scanning paper documents and generating searchable text;

$0.025 per page for Bates and confidentiality stamping;

$325 per gigabyte for imaging native-format ESI into TIFF files; and

$35 to $300 per labor-hour for technicians, quality control, and management staff.

W Holding Co., at *6-7.

…and where there is lots of money being spent, there are disputes.

What is Not Reasonably Accessible?

The FDIC claimed the bank’s ESI in a review database was not reasonably accessible under Rule 26(b)(2)(B), thus requiring cost shifting. W Holding Co., at *13-14.

The party claiming ESI is not reasonably accessible must demonstrate the undue burden. The claim cannot simply be the ESI is expensive to produce because of volume, but that the cost must be “associated with some technological feature that inhibits accessibility.” W Holding Co., at *14, citing Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 301 (S.D.N.Y. 2012).

In the words of the Court, the FDIC had not “hinted” at any technical problem that hinder searching the ESI. Moreover, the ESI was already in a database for search. W Holding Co., at *14.

Even though the FDIC argued that high production costs could make ESI not reasonably access under FRCP 26(b)(2)(B), the Court made an important distinction between accessibility and proportionality. As the Court explained:

In short, I reject the contention that Rule 26(b)(2)(B)—and its shifting burden to justify production requests—kicks in any time that discovery implicates both (1) electronically stored information and (2) large volumes of data, even where the volume renders review costly.

Because FDIC -R has not shown that access to the Westernbank data is hindered by any unique technological hurdles, it has failed to trigger Rule 26(b)(2)(B). It is therefore not entitled to categorically label the DMS databases “not reasonably accessible.”

W Holding Co., at *16.

Proportionality

The Court attempted to analyze the proportionality factors under Federal Rule of Civil Procedure Rule 26(b)(2)(C). However, as the Court stated, “But frankly, the parties’ broad claims about their respective discovery proposals are too speculative to merit a ruling at this time.” W Holding Co., at *18.

The Court noted that the FDIC’s affidavits explained the “bulk costs” of the work, but did not “shed any light on the effort in this case” or provide what it would take to build responsive searches. W Holding Co., at *18-19. The Court stated:

In sum, this is less a situation where the scales are evenly balanced, and more one where the court has been given nothing to place on either side. Until the parties take affirmative steps to conduct discovery—perhaps after test runs, for instance—there is no ground for the court to dramatically alter the defaults under the Federal Rules of Civil Procedure.

W Holding Co., at *19-20.

After a lengthy opinion, the Court’s order can be summarized as follows:

FDIC will neither be categorically required to organize and label its productions, nor permitted to produce documents without adequate organization. 

No cost-shifting is justified at this time, though trial runs showing disproportionate costs, or abusive discovery tactics, could warrant reconsideration. 

The requesting party was to propose search terms first—however, since FDIC oversaw the loading of ESI into a database, it was expected to provide active assistance, and should anticipate consulting its technically-skilled staff or contractors as necessary.

Parties are to meet and confer over privilege issues, opposed to going to the Court initially.

W Holding Co., at *21-23.

Bow Tie Thoughts

Judges want to know the relevant details and reasons for any request for relief. Moreover, the Court is coming into the dispute cold. The Judge does not know the benefits of one review application over another, what is required to build search terms or likely the different search technologies that can be used.

There is a significant difference between accessibility under 26(b)(2)(B) vs proportionality under 26(b)(2)(C).  One way to look at the differences is accessibility is the cost of how you get the data; proportionality involves the benefit of the discovery vs cost. The commonality between the two is both require expert testimony to explain the technical issues to the Court, whether it is retrieving data from legacy systems or using a specific search software to review the data.

We are in a new world where attorneys must explain with expert affidavits why certain technology should be used, what costs are being incurred, why a search is (or is not) reasonable and the age old question of “why” a party is asking the Court for relief. A Judge does not want abstract hypotheticals on cost or searches; a Judge wants to know how the ESI in a lawsuit is being searched, what kind of data is being search and how the technology will make the searches more effective. This requires educating the Judge, which means detailed expert affidavits.

How to Get A Judge to Say “Stern Measures Are Called For”

How do you know there is a duty to preserve?

When two managing officers involved in the termination of an employee are repeatedly asked by an attorney for their electronic calendars, including a letter threatening an EEOC complaint if there was not an amicable resolution, and then followed by formal discovery requests.

How do you get sanctions?

When after repeated statements that the Defendants did not have electronic calendars, one of the managing officers states in deposition that he kept a daily electronic calendar and routinely deleted the entries after the date has passed. Making matters more complicated, the witness admitted “he was told a week before his deposition to retain his calendars but he nonetheless continued his practice of deleting” his electronic calendars. Kirgan v. Fca Llc, 2013 U.S. Dist. LEXIS 51747, at *1-2 (C.D. Ill. Apr. 10, 2013).

Overview of Sanctions

A party must enact a litigation when it reasonably anticipates litigation, which generally requires the suspension of its document destruction policy.  Kirgan, at *3.

Courts analyze three factors in determining sanctions for the failure to preserve evidence:

(1) A breach of the duty to preserve or produce documents;

(2) The level of culpability for the breach; and

3) The prejudice that results from the breach.

Kirgan, at *3, citing Danis v USN Communications Inc., 2000 WL 1694325, at *31 (NDIL).

Case law states that sanctions must be proportionate to the offending conduct. Kirgan, at *3. A party also had to know or had reason to know that litigation was forthcoming. Kirgan, at *3 citing Morton v Motel 6 Operating L.P., 534 F3d 672, 681 (7th Cir 2008). Sanctions can be imposed on a finding of bad faith, willfulness, or fault. Kirgan, at *3 citing Brandt v Vulcan, Inc., 30 F3d 752, 756 (7th Cir 1994).

The Court’s Findings 

The Court held that the Defendants breached their duty to preserve the daily calendars and that the Plaintiff had been prejudiced by the destruction of the electronic evidence. Moreover, the Court found that the Defendants’ conduct was misleading and intentional. Kirgan, at *5.

The Court stated the following on determining sanctions:

I do not believe that the sanction of default is warranted. I do, however, believe that stern measures are called for. The Defendant’s direct and vicarious conduct was willful and intentional, and it cannot be condoned. 

Kirgan, at *7.

The Court noted that the destruction of the calendars was the only reported instance of misconduct.

However, that misconduct included untruthful statements that the calendars did not exist, with one of the parties deleting the ESI. Kirgan, at *6.

This conduct created a “clear impression that [the officer] had deliberately decided to thwart Plaintiff’s efforts to obtain them.” Id.

Based on the above, the Court entered the following sanctions order:

 

1. The jury is to be given a spoliation instruction, which permits the jury to draw a negative inference from its failure to preserve and its destruction of relevant documents.

2. Defendant may not use — at summary judgment or at trial — any evidence or argument that may have been contained in Borsdorf’s destroyed calendars, unless that evidence or argument is corroborated by other documentary evidence or by testimony of witnesses independent of the Defendant.

3. Defendant shall pay attorney’s fees to the Plaintiff for the fees his counsel incurred in preparing this motion. That amount shall be doubled, in a rough effort to compensate Plaintiff for the efforts that were made in her counsel’s attempts to obtain the calendars.

Kirgan, at *7.

Bow Tie Thoughts

Judges do not like lies. Attorneys have a duty of candor to the Court and witnesses take an oath to tell the truth. Judges get upset when anything less than the truth is told.

This is the first time I have seen a Court double an attorneys fee award as part of a sanction for the destruction of evidence (I am sure it has happened before). However, it is noteworthy, because the Court did it “in a rough effort to compensate Plaintiff for the efforts that were made in her counsel’s attempts to obtain the calendars.” 

Complying with the duty to preserve is rightly a hot topic in litigation. Attorneys must conduct detailed interviews with their clients to determine what technology is used in the ordinary course of business. Does the client text? Is there data outside the firewall in a “cloud,” such as a Google Calendar?

Attorneys must develop a preservation strategy after determining the relevant sources of information. Telling a custodian to “stop deleting” is a good first step, but the relevant data has to be collected in a defensible manner. This could range from content information management systems “locking down” the custodians’ communications, which are then exported for analysis and review. Other options include collecting data directly from the computers with computer forensic experts. Regardless of the strategy used, it is advisable to not allow custodians to self-collect their own data.

Clawback Agreements to Eliminate the Burden of Privilege Review

I am gonna to hit the brakes, he’ll fly right by me.

Maverick, Top Gun

You’re gonna do what?

Merlin, Top Gun

 

Attorneys feel compelled by their duty of competency to their clients to have eyes on every document that might be privileged.

Given cases such as J-M Manufacturing it is easy to see why attorneys are concerned about privilege review in large document review cases.

If an associate attorney were to tell a partner she could rely on a clawback agreement and not conduct privilege review, it is a safe bet the partner would respond as Merlin did to Maverick in Top Gun.

In re Coventry Healthcare, Inc. v. This Document Relates involves issued of undue burden in producing electronically stored information. The Defendants argued that the Plaintiff’s proposed search terms produced “hits” of nearly 200,000. The Defendants claimed the estimated cost to process, host and review the data for responsiveness and privilege was approximately $388,000. In re Coventry Healthcare, Inc. v. This Document Relates, 2013 U.S. Dist. LEXIS 39050, at *14 (D. Md. Mar. 21, 2013). Accordingly, the Defendants sought relief under the proportionality principles of Rule 26(b)(2)(C)(iii).

The parties to their credit had negotiated over search terms to ease the burden on the Defendants (and ultimately themselves in what the Plaintiffs would have to review).

The Court made what some would consider a surprising statement: [A] clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. In re Coventry Healthcare, Inc., at *16. As such, the Defendants failed to show undue burden in producing electronically stored information.

The Court’s ruling is not the first time such an order was given. As stated in footnote 6, former Magistrate Judge (now District Court Judge) Paul Grimm found that “the more practical approach is to avoid the necessity of an expensive and time-consuming privilege review by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document.” In re Coventry Healthcare, Inc., at 14-15, fn 6, citing Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

The Court granted the Plaintiff’s motion to compel and invited the Defendants to confer with the Plaintiffs on a clawback order if they wanted one.

Bow Tie Thoughts

There are several thought leaders who have argued that the cost of privilege review can be eliminated with protective orders and clawback agreements. While having both is definitely a good idea, many attorneys feel terrified at not conducting some sort of privilege review.

One option to privilege review is to leverage technology-assisted review in identifying potentially privileged ESI. I would still always recommend a clawback agreement and potentially a protective order, depending on the subject matter of the ESI. However, TAR such as predictive coding could be used to identify potentially privileged material. Generally speaking, many attorneys have an idea what sort of communications or files will be protected by a privilege. Leveraging technology to identify attorney-client communications, intellectual property, or personal identifiable information can enable the data to be organized based on both privilege and responsiveness. This allows the attorneys to review data that is potentially privilege, if they are so inclined to have eyes on such ESI.

Relevance, Social Media & Personal Computers

In an employment dispute, the Defendant sought access to the Plaintiff’s Facebook profile and personal computer. The case had involved several discovery disputes challenging the Plaintiff’s discovery productions. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, 5-9 (M.D. Tenn. Mar. 20, 2013).

Among the discovery requests, the Defendant requested “Facebook and/or other social media data” and “Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant.” Potts, at *3.

The Plaintiff explained they had produced her day planner, documentation of “write-ups” and “store visits” from her employment and all emails relevant to the case. Potts, at *3-4.

The Plaintiff challenged the request for full access to the Facebook profile, arguing that the Defendants had failed to make a “threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.” Potts, at *4-5, citing Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928, *4 (D. Nev. June 20, 2012).

The Plaintiff also objected to the request for the computer as unduly burdensome, because she had “produced” the relevant information from the computer. Potts, at *4.

The Court held that that Defendants did not make a showing that the Plaintiff’s public Facebook profile contained information that would reasonably lead to the discovery of admissible evidence. Potts, at *7. The Court based its findings on the Plaintiff’s discovery productions and case law. Id. The Court cited the following in their decision:

[M]aterial posted on a ‘private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Potts, at *6-7, citing Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

However, the personal computer was another story.

The Court agreed the physical production of the computer could lead to admissible evidence, however the parties were ordered to “agree to a word search of Plaintiff’s computer by an agreed neutral party.” Potts, at *8.

Bow Tie Thoughts

Discovery requests are a mix of art and science. Drafting requests requires an attorney to consider the possible sources of ESI, analyze the case facts and draft the reasonably tailored request for discovery. This is easier said than done.

Attorneys really need to be thoughtful in drafting requests for electronically stored information on social media. Done too broadly, it can be the moral equivalent of demanding an MRI in a breach of contract case. At the end of the day, the requests must be for relevant ESI.

Personal computers are another story. A requesting part simply does not get to forage for evidence through someone’s computer. Courts put safeguards in place to avoid privacy from being invaded, such as neutral examiners and the opportunity for privilege review before production.

A good practice is to image a personal computer after a triggering event to preserve any possible relevant information. Costs for such imaging have come down considerably, ranging between $300 to $500 for service providers. This is a very worthy investment compared to the costs of motion practice or defending spoliation claims. Analysis of the contents, searching and processing will drive the cost up; however, talk with the service provider on how they charge for these services. It might be hourly or a flat rate.

No Costs for TIFF Blow Backs

Costs in eDiscovery are a never ending ordeal for parties.

There is little question that the Taxation Guidelines should be updated to meet the realities of computer forensic investigation, preservation and processing.

Consider the following situation, where the Court addressed “image processing”:

Mitre has requested a total of $5,453.96 in image processing costs from Modus. There is scant case law on the issue of image processing, but the Taxation Guidelines limit taxation of costs of “maps, charts and photographs” to those that are admitted into evidence. Mitre offers no explanation of what these image processing services entailed (for example, what does it mean to “blow back TIFF images,” why does it cost $686.00, and why did it need to be performed twice?), but Mitre makes no claim that the resulting images were ever admitted into evidence. The Court will subtract all $5,453.96 of Mitre’s image processing costs from Mitre’s requested amount. If Mitre wishes, it may file an additional motion explaining the image processing fees and requesting that they be taxed as costs.

Taylor v. Mitre Corp., 2013 U.S. Dist. LEXIS 19550, at *4 (E.D. Va. Feb. 13, 2013) (emphasis added).

What can we take from the above? First, it is important to remember the Court is coming in cold to a dispute between the parties. Moreover, the Court has not lived with the day-to-day technical issues in a case and why project management decisions were made. As such, a party must explain to the Court why native files were converted to TIFF or “blow back TIFF’s” were required in the litigation. This likely will require an expert affidavit, so the Court will be able to make an informed decision on costs.

It is no secret that I am not a fan of converting searchable ESI to TIFFs without a good reason, such as redactions of confidential information. That might have been the situation in this case. Regardless, a good practice pointer for attorneys is to explain why technical decisions were made in the processing of electronically stored information.

Grover Mundell

I was deeply sadden to learn of the passing of Grover Mundell. Grover was always a gentlemen. I enjoyed saying hello to him at the different legal conferences over the years. I am very sorry for his family’s loss.

Grover’s memorial service will be held at Temple Emanu-El in Dunwoody, GA on Thursday, March 14th at 2pm with reception to follow at 8040 Habersham Waters Rd., Dunwoody, GA. They are planning to stream the service over the Internet for those who cannot attend in person. Please check their Facebook page for more information.

Please Don’t Bates Stamp eDiscovery

This case is my eDiscovery nightmare.

Worse than a clown with snakes.

Let’s review what happened.

The case involved numerous allegations of discovery wrongdoing against the Plaintiff.

The Defendants brought a motion for “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation.”

The Defendants claimed they had spent $51,122 in legal fees and expenses related to the Plaintiffs’ “document dump.”

The motion was granted and denied in part. Branhaven, LLC v. Beeftek, Inc., 2013 U.S. Dist. LEXIS 13364, 13-14, 22 (D. Md. Jan. 4, 2013).

It Started Like Any Other eDiscovery Dispute…

The litigation had the “traditional” eDiscovery dispute with the Plaintiffs not producing email ESI, because they had not accessed the information, and other significant production delays. As the rather hot bench explained:

Plaintiff’s delay in addressing the lack of access to these email servers is inexcusable. There is no more obvious and critical source of information in the 21st century than a company’s email accounts.  Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting — if not misleading defendants — that it had identified responsive documents is sanctionable.

Branhaven, at *13-14.

Things continued to be problematic for the Plaintiffs, who claimed ESI from laptops would be produced in what the Court described as “blithely” assertions that discovery would be produced “at a mutually convenient time.” In reality, the subject laptops had not been sent to the client (presumedly to for review, raising the issue why hadn’t the hard drives been imaged), until a new associate attorney found them. Branhaven, at *14. Their conduct ultimately resulted in sanctions in the form of fees and costs.

…and then Came the PDFs and Whether the ESI Should Have Been Produced as TIFFs with Bates Numbers to be in a Reasonably Useable Form

The Plaintiffs produced their ESI as PDF’s. The Defendants challenged the production, because the production was untimely and not in TIFF format with Bates Numbers on every page. Branhaven, at *14-15.

The nightmare of a TIFF over a PDF production with Bates Stamps included the Plaintiffs arguing that the discovery request did not request Bates Stamps; nor is it an express requirement in the Federal Rules of Civil Procedure, case law or the local discovery guidelines. Branhaven, at *16.

Moreover, the Protocol for Discovery of Electronically Stored Information (Local Rules of District of Maryland) which states that TIFF is the preferred format is only advisory. The Court called this a “weak defense.” Id.

The Court stated the following on the production:

Moreover, as defendants point out, Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options regarding the form in which a party may produce documents and plaintiff did not satisfy either. The July 20 production was not in a form “in which it is ordinarily maintained” or in “a reasonably usable form” — as Mr. McNeil showed (especially considering the lateness of the production with depositions looming in a few days). The Advisory Committee Notes to Rule 34 warn that: “[a] party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs the risk that the requesting party can show that the produced form is not reasonably usable . . .” (emphasis added). That is precisely what happened here. Branhaven did not advise of the intended form of its production in its March response. Defendant was blindsided by the volume of the documents (since the prior productions consisted of 388 pages). Moreover, defendants had every reason to think that the documents would be completely Bates-stamped, as prior productions were and further defendants had no reason to think that this production would be so incredibly voluminous, as to require special arrangements and explicit agreement.

Branhaven, at *16-17.

The crux of production issue was whether or not the PDF’s were in a reasonably useable form. The Court held they were not, because of the lack of Bates Numbers and the fact they were not in TIFF format. Branhaven, at *17. Additionally, because of the production, the Court awarded the Defendants “the reasonable litigation support costs involved in receiving and processing” the document production. Branhaven, at *19.

Bow Tie Thoughts

Why is this a case a nightmare for me? Because it applies a paper model of discovery to electronically stored information, requiring a conversion of ESI into a TIFF with Bates Stamps (a conversion which can triple processing costs with some service providers). What is even stranger about it is the form of production battle centered on PDFs vs TIFF, both of which are static images. One difference is a PDF can be either non-searchable (thus like a TIFF) or searchable (thus more like a native file).

Demanding electronically stored information be converted to a static image with Bates Numbers is right up there with demanding MP3s be reversed burned to 8 Track. A party should have a good reason to take a native file, that is fully searchable and strip its searchable features. This truly makes it like a piece of paper, rendering the review tools that can do everything from sorting data in chronological order to technology assisted review be useless. It is like trying to fuel a hybrid car with coal.

Removing ESI’s searchable features also violate the Federal Rules of Civil Procedure and a substantial body of case law.

Moreover, claiming there is a functional difference between PDF vs TIFF as static images is like fighting over VHS vs Beta. The problem with such fights is we are in the 21^st Century and not the 1970s. It is almost like arguing Beta is better than Video on Demand, because the issue is not the form, but whether you can analyze the content.

What drives these all too frequent fights? It is attorneys who want pieces of paper to have Bates Stamps. This worked up until the 1990s, but we now live in a world where the content on a smartphone can fill the first floor of a library. Data needs to be reviewed as data for there to be any chance to meaningfully understand its content. Moreover, as to the Bates Numbering to organize the ESI issue, native files can have a “control number” that is the functional equivalent of a Bates Number for management in a review platform. If there is still a concern about whether a file has been changed, parties can use MD5 hash values instead, to ensure the ESI has not been modified.

Finally, I believe forward thinking local rules are extremely helpful for litigants. However, as technology changes, these rules need to be updated to incorporate how computer-assisted review can cut costs, advances in processing or even the cost-effectiveness of remote depositions. What was forward thinking in 2006 can be outdated in 2013.

In the end, converting standard ESI like email to TIFFs to brand Bates Numbers should give lawyers nightmares of high processing costs, slow manual review and unhappy clients. It should only be done when the native file itself is not in a reasonably useable form, thus the static image is the only reasonably useable form.