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.

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.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

No Expert Testimony, No Motion to Compel

A court should be hesitant to resolve issues that demand technical expertise.

Magistrate Judge James C Francis IV

In a case with dueling motions to compel, the parties disputed the adequacy of search terms. Magistrate Judge James C Francis IV wrote a profoundly important warning to attorneys and judges on search terms: A court should be hesitant to resolve issues that demand technical expertise. Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., 2012 U.S. Dist. LEXIS 167981, at *11 (S.D.N.Y. Nov. 21, 2012).

Neither of the parties submitted to the Court expert affidavits on the adequacy of the search terms. Judge Francis stated that expert testimony was “necessary for [him] to offer an opinion as to the most efficient, search protocol.” Assured Guar. Mun. Corp., at *12.

The Court noted that search term adequacy “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Assured Guar. Mun. Corp., at *11-12, citing George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?”, 13 Rich. J.L. & Tech. 10 (2007).

The Court also cited to the archangel of search term cases to highlight the difficulty in analyzing search term efficiency:

…for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

Assured Guar. Mun. Corp., at *12, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008).

The Court stated the parties had three options:

They can cooperate (along with their technical consultants) and attempt to agree on an appropriate set of search criteria;

They can refile a motion to compel, supported by expert testimony; Or,

They can request the appointment of a neutral consultant who will design a search strategy.

Assured Guar. Mun. Corp., at *12.

Bow Tie Thoughts

eDiscovery requires expert knowledge. It is extremely dangerous for courts and parties to engage in determining search terms without having at least one expert who understands what technology to apply to a case to help attorneys make the legal determination what is relevant; identify what is responsive to discovery requests; and determine what ESI is privileged.

There have been too many eDiscovery opinions this year that most likely did not have an eDiscovery consultant assisting either party. I am greatly concerned the recent case management orders that limited parties to five search terms per custodian was purely an arbitrary number and lacked any expert involvement in analyzing the data before any such motion practice.

This is as dangerous as an accountant telling a doctor what procedures they can use to treat an emergency room patient before any triage takes place. The accountant is in no position to know what is best for patient care.

If determining search terms efficiency is the work of angels, limiting search terms without consulting an expert is embracing the dark ages at best and malpractice at worse. Why risk limiting your ability to find what is relevant to your case? Why risk driving up discovery costs by making searching for ESI harder?

Conversely, would any attorney agree to limiting their legal research to the arbitrary number of 3 terms and prohibiting the consultation of a research attorney to “lower costs”? Most likely no.

The answer to controlling eDiscovery costs is not limiting the tools to find what is responsive, but the education of attorneys and judges in understanding how to conduct eDiscovery. Highlighting the need for eDiscovery education, one recent opinion had a judge hold that TIFF’s are a form of production “that is easily searchable for specific terms.” Johnson v. Allstate Ins. Co., 2012 U.S. Dist. LEXIS 148282 (S.D. Ill. Oct. 16, 2012).

Tagged Image File Format is not searchable. Parties convert ESI to TIFF’s (usually at any additional processing cost) to make the native files not searchable. A production with TIFF’s would require extracted text, substantive and/or embedded metadata, or the TIFF’s to have optical character recognition (OCR) to be in a reasonably useable form without searchable features denigrated. Saying TIFF’s are searchable is simply wrong.

Judge Francis was profoundly correct when he stated, “A court should be hesitant to resolve issues that demand technical expertise.” eDiscovery requires attorneys being competent to understand their client’s ESI, which should involve having enough education on eDiscovery to know when to bring in an expert for help; determining whether or not search terms are effective requires such expert assistance.

You Do Have to Look for Discovery in Your Possession

A Producing Party (the Defendant) argued against searching for responsive electronically stored information, claiming “that the mere fact an employee might have discoverable information or relevant knowledge does not necessarily mean she possesses relevant documents.” McNearney v. Wash. Dep’t of Corr., 2012 U.S. Dist. LEXIS 108386, 14-16 (W.D. Wash. Aug. 1, 2012).

Negative inductive reasoning aside, Federal Rule of Civil Procedure Rule 34 requires a party “to produce requested documents if they are within his ‘possession, custody, or control.’” McNearney, at *14, citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 165 n.6 (1980) (Stevens, J., concurring in part and dissenting in part).

The Producing Party did not challenge that it failed to search for responsive electronically stored information from “numerous employees identified as likely having discoverable [information],” but took the position that just because it was possible the custodians had relevant information, did not mean they actually had the relevant information.  McNearney, at *14.

The Court agreed with the logic, but that did not give the Producing Party a free pass on its duty to make a reasonable inquiry, especially considering the fact the Producing Party identified the employee as likely having relevant information. Id.

Further causing problems for the production, was a difference in email messages produced by the Defendant and two other Defense custodians, suggesting that there had not been a reasonable search for email by one of the Defense custodians. McNearney, at *14-15.

The Producing Party also conceded that it did not produce email attachments and that its search scope was narrower than the Plaintiff’s discovery requests. McNearney, at *15.

The Court held the following on the Defendant’s search:

Defendant’s production of some documents in response to RFP No. 5 does not satisfy its duty to make a reasonable search for and produce all responsive documents in its possession, custody, or control. Despite its original objection that RFP No. 5 was unduly burdensome because it was “a trap for Defendants,” DOC has not demonstrated that conducting a thorough search for responsive ESI would pose an undue burden or cost, as required in responding to a motion to compel. Fed. R. Civ. P. 26(b)(2)(B).

McNearney, at *15-16 (Emphasis added).

Bow Tie Thoughts

A party must demonstrate undue burden to limit discovery. This does not include an argument “that just because there might be something relevant, does not mean there is something relevant.”  While that is true in a logical discussion during a philosophy class, the Federal Rules of Civil Procedure are not an exercise in metaphysical nihilism to circumvent a party’s duty to conduct a reasonable search for responsive ESI to a discovery request.

The Federal Rules of Civil Procedure require ESI to be produced as it is ordinarily maintained or in a reasonably useable form. By the plain language of “ordinarily maintained,” a producing party cannot break the parent-child relationship between email messages and their attachments (or Tweets and Hyperlinks or text messages with photos).  Additionally, a production that breaks the parent-child relationship is not in a “reasonably useable form,” since searching for an attachment to its corresponding message is like re-unitizing a document that has had its staples removed and the pages shuffled with 1,000 other pages.

The technology to collect, search and produce electronically stored information are well established now after a decade of being available. These products are common services offered by eDiscovery service providers and many law firms have brought these technologies in house. While electronic discovery has many challenges, there are solutions available to these challenges that are affordable.

No Request, No Motion to Compel

The Plaintiff in ADT Sec. Servs. v. Pinancle Sec., LLC, objected to a Magistrate Judge’s denial to a motion to compel to redo the Defendant’s search for responsive ESI.

The Plaintiff’s argued the Defendants failed to search individual employee computers and back-up tapes.

Additionally, the Plaintiff’s highlighted a considerable disparity between the volume of ESI produced by the Plaintiff verse the Defendant. ADT Sec. Servs. v. Pinancle Sec., LLC, 2012 U.S. Dist. LEXIS 98948 (N.D. Ill. July 11, 2012).

As such (in the Plaintiff’s argument), the disparity demonstrated the Defendant did not produce enough ESI, thus requiring additional searches.

Discovery Order to Conduct Additional Searches

The Magistrate Judge did not find any “legitimate basis for requiring Pinnacle to re-do its extensive ESI search” based on only a general assertion that documents must be missing. ADT Sec. Servs. at *6.

A motion to compel discovery should identify the responses that are inadequate and what information is necessary to make them adequate.  ADT Sec. Servs. at *5-6. The Plaintiff only made a general assertion that the searches were inadequate and thus the motion failed in a broad court order. Id.

However, the Magistrate Judge did issue a limited order to re-search seven employee computers, because there was evidence the computers might have contained ESI missing from the original production.  ADT Sec. Servs. at *6.

The District Court found the Magistrate Judge’s order was reasonable and not clearly erroneous or contrary to law, because the seven computers ordered to be searched were used by individuals whose correspondence had been specifically requested by the Plaintiff with specific search terms. ADT Sec. Servs. at *6.

Moreover, the Plaintiff’s motion to compel the search of 10 additional custodians with new search terms violated the principle that “…[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.” ADT Sec. Servs. at *7, citing Seventh Circuit Electronic Discovery Committee, Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (2010).

Based on the above, the Court found the Magistrate Judge’s order was not clearly erroneous or contrary to law. ADT Sec. Servs. at *7-8.

Bow Tie Thoughts

There are procedural horror stories of attorneys bringing motions to compel discovery without an underlining discovery request. Such motions should be denied, because you cannot have a motion to compel without first requesting specific discovery.

Discovery is not supposed to be a monkey throwing darts wildly, hoping one hits the target. However, there can be challenges in determining the relevant custodians, what to specifically request, and the sources of electronically stored information. These challenges can make the brightest lawyer feel like the dart throwing monkey.

There are situations when it comes to eDiscovery where motion practice can be justified. If a production is reviewed in software that shows relationships between email messages, additional custodians may be identified who were not included in the original production. This can easily result in supplemental discovery or possibly motion practice. Hopefully, there is a meet and confer and ESI that is responsive is produced without spending money on motion practice.

What is a Reasonable Search?

The adequacy of searches for electronically stored information is often a challenge technically and procedurally for attorneys. The case of Mullen v. United States Army Crim. Investigation Command directly outlined how to evaluate whether a search was adequate.

Searching for Adequacy & Reasonableness 

A search for responsive discovery is reviewed on whether the proffering party has “demonstrated that it has conducted a search reasonably calculated to uncover all relevant documents.” Mullen v. United States Army Crim. Investigation Command, 2012 U.S. Dist. LEXIS 93977, 12-15 (E.D. Va. July 6, 2012), citing Rein v. United States PTO, 553 F.3d 353, 362-63 (4th Cir. Va. 2009).

The producing party can demonstrate an adequate search with the following:

…[An] affidavit [that is] reasonably detailed, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched so as to give the requesting party an opportunity to challenge the adequacy of the search.

Mullen, at *13, citing Rein at 362-63.

The Producing Party (a Federal agency) had their Chief of the Freedom of Information Act and Privacy Act Division state in an affidavit the four databases she searched. The affidavit also included the three search terms, which included the Plaintiff’s name, Social Security number and the term “Unconventional Concepts, Inc.”  The affidavit also included the sources of the documents produced pursuant to the request.  Mullen, at *13.

The Plaintiff argued that the affidavit only included general statements on the Producing Party’s search. The Court rejected this argument, saying it was “simply wrong,” because the Producing Party explained the searches for the FOIA request with the search terms used in the search and the sources that were searched.  Mullen, at *13-14.

Based on the information stated in the Defendant’s affidavit, the Court concluded the Producing Party conducted a reasonable search.

Bow Tie Thoughts

Before discussing search adequacy, it is important to state the gravity of discussing search terms and methodology in the meet and confer process. While it is a given disputes come naturally in litigation, parties working together to develop search terms and methodologies can reduce motion practice.

The general rule on challenging the adequacy of a search is to present expert testimony that would allow the court to conclude that a producing party’s search was inadequate (See, Culler v. Shinseki, 2011 U.S. Dist. LEXIS 96043, 25-26 (M.D. Pa. Aug. 26, 2011)).

Such a challenge usually would be after a production from a producing party and there is evidence of a search deficiency, such as specific ESI was not produced. There are other situations where it could arise, but it is important for a challenge that a search was not reasonable to be ripe and not speculation.

There are many forms such expert testimony may take. An expert might state there was a failure to include acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues (See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f), p127 (2011-2012 Ed.)). However, to keep the challenge from being merely speculation a search was inadequate, an expert might include specific examples of ESI that was not produced. Another strategy could be to show certain buzzwords appear in ESI that was produced, but those terms were not used in the search. As such, those buzzwords would need to be added as search terms (or a search string) to ensure the search was adequate.

A producing party can show the reasonableness of their searches, thus their adequacy, with  documentation of their process and that their technology was used correctly. For example, such documentation may include 1) the search terms used to identify the responsive ESI; 2) how the search terms were determined; 3) explain how the technology was used to conduct the searches; 4) state the qualifications of the person who conducted the search; and 5) describe the different data sources that were searched.

There are other ways the reasonableness of a search can be demonstrated, but the best description of the standard might be from Judge Facciola’s Peskoff v Faber, where the Court ordered an evidentary hearing on the adequacy of searches:

“I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.”

Peskoff v Faber, 240 F.R.D. 26, 31 (D.D.C. 2007).

Writ of Mandamus & Search of Personal Hard Drive

A Plaintiff sought a writ of mandamus after a trial court ordered the production of the Plaintiff’s personal computer and email accounts. The Court of Appeals of Texas granted the writ. In re Jordan, 364 S.W.3d 425 (Tex. App. Dallas 2012).

The case involved claims of a sexually hostile work environment and wrongful termination.

The basic factual allegations involved the Plaintiff’s seeing sexually graphic content on a work computer that was offensive to her.  The Plaintiff prepared a memorandum on the incident on her work computer for her supervisor.  In re Jordan, at *1.

The Plaintiff stated at her deposition she had never viewed pornography before the work incident. In re Jordan, at *1.

The Defendant generally requested the production of the Plaintiff’s home computer.  Id. The Trial Court signed an order permitting the Defendant’s “forensic computer examiner” to access the Plaintiff’s personal computer for the following:

1) Determine Plaintiff’s Internet history for content of a pornographic or sexual nature from 2009 to present;

2) Examine relator’s email accounts to see if any emails with pornographic or sexual content were sent or received from 2009 to present; and

3) Attempt to locate the memoranda relator claimed she prepared on her work computer.

In re Jordan, at *2.

Texas law requires a party seeking another party’s personal computer to “make a specific request for [the] information and specify the form of production.” In re Jordan, at *2, citing In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009).

The Court of Appeals explained the following defects of the Defendant’s discovery requests:

Here, Gajekse’s written requests merely asked for the hard drives of relator’s computers without informing relator of the exact nature of the information sought.n2 Gajekse also failed to demonstrate “the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics, or a reasonable likelihood that the proposed search methodology would yield the information sought.” In re Weekley Homes, L.P., at 311. In fact, the record before us does not reflect any attempt by Gajekse to explain its search methodology or its expert’s credentials.

In re Jordan, at *2-3.

The Court of Appeals further cited that Texas law “specifically cautioned trial courts to be sensitive to the highly intrusive nature of computer storage search.”  In re Jordan, at *3.

Furthermore, trial courts should consider issuing a protective order when a personal computer is searched, especially in cases where the requesting party employs the person conducting the search. Id.

While the trial court did attempt to limit the scope of the computer search, there was nothing in the record that showed a protective order was considered. In re Jordan, at *4.

The Court of Appeals held the trial court abused its discretion in its order to search the Plaintiff’s personal computer.  In re Jordan, at *4.

Bow Tie Thoughts

The Court of Appeals was right to grant mandamus relief.

It is said the power to tax is the power to destroy. A corollary is the power to conduct an unrestricted search of an opposing party’s personal computer is the power to harass, embarrass and destroy. Despite the fact computers literally surround us, courts are still developing the legal safe guards to prohibit a digital vivisection of individuals in litigation.

With the current case, the Plaintiff is effectively being challenged to prove a negative (that she never saw pornography before the lawsuit) as the justification to search her personal computer and thus discredit her deposition testimony.

While truthfulness is always an issue in a lawsuit, compelled searches of an opposing party’s computer normally require some showing of discovery irregularities such as production gaps or IP/trade secret allegations.

As to the ancillary issue of finding the memo reporting the incident, the more logical place to search is the Plaintiff’s work computer (in theory under the control of the Defendant) or her supervisor’s computer if the memo was emailed to the supervisor.

There are several options if a search needs to be conducted to contradict the Plaintiff’s deposition testimony, including:

1)    Court appointed expert conducts search of Plaintiff’s computer for specifically identified content.  The Plaintiff has the right to review the findings for any privileged information before it is produced to the requesting party

2)    A Court appointed or an expert employed by the Plaintiff uses a device such as the Paraben Porn Detection Stick to scan the computer for pornographic content. The Paraben Porn Detection Stick searches images based on the amount of flesh visible in images and generates a report of suspected pornographic images (there is more to the technology, but that is my understanding). The cost for the device is $99.

Given the amount of Supreme Court case law on the subject of pornography, the Court and parties also have the challenge of defining what to actually search for on the computer at issue.  To meet the requirement that there is a reasonable likelihood that the proposed search methodology would yield the information sought, the search cannot be Justice Stewart’s “I know it when I see it” standard from the concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 (U.S. 1964). Such a meet and confer might address what areas of the computer will be searched, file types and perhaps specifically determining a percentage of visible flesh to meet the legal definition of “pornography.”

Courts should guard against a party searching an opposing party’s computers at will. To be blunt, there are gigabytes of non-responsive and privileged information on computers, such as tax information, banking data and other data completely not relevant to a lawsuit.

When searches must be conducted of an opposing party’s personal computer, there should be protective orders, clear and specific requests for the information sought to deter digital fishing expeditions, a selection process for who is to search the information and an opportunity for the responding party to conduct a privilege review.

(Disclosure: I have many friends at Paraben and will be speaking at their 2012 conference).

A Search Terms Gam

Determining search terms can sink into a voyage on the Pequod hunting a white whale. If a party obsesses over search terms, they may find themselves quoting Captain Ahab as they sink in an over-inclusive ocean of electronically stored information.

To The Last, I Grapple With Thee

In EEOC v. McCormick & Schmick’s Seafood Rests., Inc., the parties disagreed over search terms for the following EEOC discovery request:

“[E]mail communications responsive to EEOC’s First Request for Production of Documents to Defendants, particularly those relating to applicants, hiring, complaints of racial discrimination, and server section assignments…”

EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2012 U.S. Dist. LEXIS 13134, 13-14 (D. Md. Feb. 3, 2012).

The Defendants claimed the EEOC did not provide any proposed search terms to limit the whale of a tale of email for the Defendants to search.  McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court explained the practice, and danger, of just the producing party searching oceans of email:

Common practice governing the discovery of electronically stored information requires the use of search terms to make an extraordinarily burdensome search comply with the tenets of Fed.R.Civ.Proc. 26(b)(2)(C). If the producing party generates the search terms on its own, the inevitable result will be complaints that the search terms were inadequate.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

Gamming Over Search Terms

In old nautical traditions, a gam is a rendezvous of ships at sea. In today’s legal world, it is similar to a meet and confer.

The Court, recognizing the need for the parties to discuss search terms to narrow the data to emails relevant in the lawsuit, ordered the following:

For that reason, this Court will require the parties to confer on the development of reasonable search terms to be used to obtain responsive email communications in this case.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court ordered the EEOC to provide a list of search terms within five days. The Defendants were ordered to respond with any possible within five days after receiving the proposed search terms. The parties were to have good faith negotiations over any disagreements.  McCormick & Schmick’s Seafood Rests., Inc., at *14-15.

…And like Melville’s great whale circling the ships, the Court stated that if the parties could not agree on reasonable search terms:

[The] Court will determine, after review of the parties’ proposed lists and particularized information regarding the burden to be imposed by the proposed search, which terms will be used to allow Defendants to provide responsive email communications.

McCormick & Schmick’s Seafood Rests., Inc., at *15.

Bow Tie Thoughts

Developing search terms with an opposing party can drive a lawyer to sound like Gregory Peck…and not as Atticus Finch from To Kill a Mockingbird. 

Search terms are not something a lawyer can take revenge on for producing large data sets. In fact, parties need to meet and confer in cases with large volumes of data, to avoid searching the oceans for relevant ESI.

Here are just a few strategies for determining search terms:

Select Team for Creating Search Terms:

Litigating attorney, client, expert in subject matter, expert in building keyword search strings

Determine data sources.

Brainstorm possible names, events, dates and phrases that may be connected to the case.

Compile a list of last names, first names, surnames, nicknames, positions and other titles connected to the case. 

Determine acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues. 

List date ranges that correspond with critical time period in case.

Determine key event terms (heart attack, cardiac, hospital).

Determine search phrases.

Use thesaurus to locate similar words.

See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f) (2011-2012 Ed.).

Document review should not be a Melvillean maelstrom of over expansive data. If the discovery is in the terabytes, search terms and a defensible methodology are a necessity in order to find the relevant ESI.  Moreover, cooperation between the parties is vital for success, to avoid one party selecting very narrow search terms and the other claiming the search was under-inclusive.

Mechanical Analytics, or predictive coding, is one of the “newer” technologies in being able to help determine relevant ESI.  Predictive coding is arguably necessary in cases with extremely large volumes of ESI, because of efficiency and cost-savings in being able to identify relevant ESI faster than traditional review.

In essence, the software learns from a reviewing attorney who is a subject matter expert in the case and identifies additional relevant ESI based off the work done by the attorney. That is a very simple description of the technology. For a more detailed discussion, see this article by Herb Roitblat from OrcaTec (Disclosure: I have friends at OrcaTec and I have referred business to them).

Finding relevant electronically stored information is not a mad hunt for a white whale. With the right technology and strategies, parties can narrow data sets to relevant information.

There is Only One Way to Rock Search Terms

In Re National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation involved a dispute over additional searches of electronically stored information using abbreviations and acronyms for previously agreed-upon search terms.

Instead of turning the discovery dial up to 11, the Court pulled the plug on the additional search terms.  In re Nat’l Ass’n of Music Merchs., Musical Instruments & Equip. Antitrust Litig., 2011 U.S. Dist. LEXIS 145804, 21-24 (S.D. Cal. Dec. 19, 2011).

Search Terms: I Still Haven’t Found What I’m Looking For

The Plaintiffs contented that the Defendants needed to run additional searches of their ESI that included abbreviations and acronyms for the previously agreed-upon search terms. In re Nat’l Ass’n of Music Merchs., at *17.

The Defendants were not cool with the Plaintiffs’ new song request.

If producing discovery was like recording an album, here is the digital booklet overview of the facts:

Before responding to the Plaintiff’s discovery requests, the Defendants asked the Plaintiffs to provide them with search terms.

Plaintiffs argued they could not provide search terms, because the Defendants had not provided them “relevant information.”

After reviewing the Defendants search strings, the Plaintiffs agreed with the Defendants to modify the Defendants search strings to include names to capture “Defendant-to-Defendant” communications.

In re Nat’l Ass’n of Music Merchs., at *17-18.

Once the Plaintiffs began their document review after the Defendants produced their ESI, the Plaintiffs learned abbreviations or acronyms were used in the internal communications.  In re Nat’l Ass’n of Music Merchs., at *18.

The Plaintiffs argued the Defendants’ search did not capture the “agreed-upon universe” of ESI because of the failure to include the internal abbreviations or acronyms.  In re Nat’l Ass’n of Music Merchs., at *18-19.

The Plaintiffs requested each Defendant to

(i) Identify abbreviations or acronyms commonly used within the Defendant corporation for any of the agreed-upon search terms, or affirmatively state that no abbreviations or acronyms are commonly used;

(ii) State whether the Defendant included all identified abbreviations and acronyms in its search for responsive documents; and

(iii) If abbreviations and acronyms were identified but not included in Defendant’s search, re-run its search and produce new responsive documents.

In re Nat’l Ass’n of Music Merchs., at *19.

Search Terms: Don’t Bring Me Down

The Defendants argued the Plaintiffs ignored a basic fact: the terms already searched were selected and agreed upon because they were the terms most likely to produce responsive documents.   In re Nat’l Ass’n of Music Merchs., at *19.

Moreover, the Defendants had already spent a substantial amount of time and money reviewing the prior production in what was supposed to be a limited discovery period.  In re Nat’l Ass’n of Music Merchs., at *19.

Additionally, the new search protocol would require the review of tens of thousands of additional responsive documents. In re Nat’l Ass’n of Music Merchs., at *20.

Further, the Defendants argued the Plaintiffs had “ample opportunity” to add abbreviations to the search methodology, but did not do so.  In re Nat’l Ass’n of Music Merchs., at *20.

Determining Keywords: With or Without You

The Defendants requested the Plaintiffs to meet and confer over search terms before the searches were run, which the Plaintiffs declined.  In re Nat’l Ass’n of Music Merchs., at *20.  Additionally, the Plaintiffs did not raise any objections or concerns over the Defendants proposed search terms they shared by letter with the Plaintiffs. In re Nat’l Ass’n of Music Merchs., at *20.

After the Defendants had begun their document review based on their searches, the Plaintiffs contacted each Defendant to expand their search terms, reaching an expanded search agreement with each Defendant. Id.

Judgment Day

The Court cited the search term truism that “effective search terms cannot be identified in an information vacuum and that a party’s ‘human knowledge’ should be utilized to craft keyword searches that are responsive to the “inherent malleability and ambiguity of spoken and written English.” In re Nat’l Ass’n of Music Merchs., at *21, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201, 209 (Fall 2007).

Moreover, “[W]hile key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process.” In re Nat’l Ass’n of Music Merchs., at *21-22, citing In re Seroquel Products Liability Litigation, 244 F.R.D. 650, 662 (M.D. Fla. 2007).

The Court stated that the “preferable” method to reduce challenges to search terms is a “full and transparent discussion among counsel of the search terminology.”  In re Nat’l Ass’n of Music Merchs., at *22, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 204 (Fall 2007).

Finally, a Court may limit discovery if a requesting party has had “ample opportunity to obtain the information by discovery in the action,” or “if the burden or expense outweighs its likely benefit.” In re Nat’l Ass’n of Music Merchs., at *22, citing Fed. R. Civ. P. 26(b)(2)(ii), (iii).

The One That Got Away

The Court held the Plaintiff had “ample opportunity to obtain discovery regarding abbreviations and acronyms” and that the burden and expense of searching the abbreviations/ acronyms outweighed its likely benefit.  In re Nat’l Ass’n of Music Merchs., at *22-23, citing Fed. R. Civ. P. 26(b)(2)(ii), (iii).

The Court noted the Plaintiffs had two opportunities to suggest the Defendants include abbreviations/ acronyms in their searches and did not do so.  In re Nat’l Ass’n of Music Merchs., at *23.  As the Court explained:

In the spirit of the conclusions made at the Sedona Conference, and in light of the transparent discussion among counsel of the search terminology and subsequent agreement on the search method, the Court finds it unreasonable for Defendant to re-search documents they have already searched and produced.

In re Nat’l Ass’n of Music Merchs., at *23, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 204 (Fall 2007).

The Court further found ordering a re-search of the Defendants’ ESI was overly burdensome, because the Defendants had met & conferred with the Plaintiff and relied on their agreement over search terms in conducting their search and review for responsive ESI.  In re Nat’l Ass’n of Music Merchs., at *23-24.

Based on the above, the Court denied the additional searching of the Defendants ESI.

Bow Tie Thoughts

The search for electronically stored information is constantly a hotly debated topic.  Search generally may be conducted at the collection stage for strategic collections, during processing for data reduction and in document review.  Each stage has a slightly different methodology, but all have the same intent: find what is responsive.

The best time to discuss search terms between the parties is during a Rule 26(f) conference.  There is no shame in holding more than Rule 26(f) conference specifically dedicated to search terms between the parties search professionals, in order to ensure the search is as productive as possible.

Search technology is always improving to save time and costs by efficiently finding responsive electronically stored information.  One upcoming product leveraging new search technology is XERA by iConect.  In full disclosure, I recently did a webinar highlighting XERA and search technology.  iConect has also contracted with me for several continuing legal educational events on search technology.

XERA utilizes faceted search, which is a technique for accessing information organized according to a faceted classification system, allowing users to explore a collection of information by applying multiple filters. Wikipedia, Faceted search, http://en.wikipedia.org/wiki/Faceted_search.

Anyone who has done online shopping or booked airline travel has used faceted search technology.  XERA will use faceted search to improve the search and review of electronically stored information.

For more on XERA, please visit http://www.iconect.com/xera/