Watch Local Rules on Initial Disclosures

Jo Ann Howard & Assocs., P.C. v. Cassity, is a dispute over the production of a Defendant’s initial disclosures.

The Defendant described various ESI and other documents as part of their initial disclosures pursuant to Federal Rule of Civil Procedure Rule 26(a)(1).  Jo Ann Howard & Assocs., P.C. v. Cassity, 2012 U.S. Dist. LEXIS 17423 (E.D. Mo. Feb. 13, 2012).

The Plaintiffs argued in their motion to compel that the local Rules and the Case Management Order required the production of the Defendant’s initial disclosures, not merely their description. Jo Ann Howard & Assocs., P.C., at *8-9.

E.D. Mo. L.R. 26-3.01(A) states:

Disclosures shall be made in the manner set forth in Fed. R. Civ. P. 26(a)(1) and (2), except to the extent otherwise stipulated by the parties or directed by order of the Court. Disclosure of documents and electronically stored information pursuant to Rule 26(a)(1)(A)(ii) shall be made by providing a copy to all other parties, except as otherwise ordered by the Court. . . . .

Jo Ann Howard & Assocs., P.C., at *9.

The Court’s Case Management Order required initial disclosures and discovery to be produced by a specific date.

The Court found that taken together, the CMO and Local Rules required the Defendants to produce the information identified in their initial disclosures. Jo Ann Howard & Assocs., P.C., at *9-10.

The Court rejected the Defendant’s argument they did not need to produce anything, because the information was available from a Government production (The Plaintiffs claimed the Government production did not have the information identified in the Defendant’s initial disclosures).  The Court stated, “[A] party is not relieved of its obligation to produce discovery materials merely because those materials are available from other sources.” Jo Ann Howard & Assocs., P.C., at *10.

Bow Tie Thoughts

It is important to always know the local rules. While they cannot outright conflict with the Federal Rules of Civil Procedure, they may add additional requirements on a party.

Huge Hole in eDiscovery Process

Airlines don’t just lose luggage.

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

Flight Plan to Missing ESI

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

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

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

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

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

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

In re Delta, at *42-43.

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

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

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

But that is only the beginning of the eDiscovery issues. 

Rule 26(g) Violations

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

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

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

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

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

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

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

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

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

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

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

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

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

Employed electronic search terms to accommodate Plaintiffs’ requests;  

Added additional custodians to the search list;

Searched material collected in another unrelated DOJ investigation;

Agreed to numerous additional discovery requests made by Plaintiffs; and

Produced documents prior to summary judgment and well before trial.  

In re Delta, at *46-47.

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

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

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

(1) The motion;

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

(3) Plaintiffs’ motion for spoliation sanctions; and

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

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

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

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

In re Delta, at *65-66.

Bow Tie Thoughts

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

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

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

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

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

All You Need is Metadata

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

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

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

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

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

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

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

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

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

Here I Go Again: Federal Rule of Civil Procedure Recap

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

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

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

Production Traffic Stop

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

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

The Court held the following:

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

In re Porsche Cars, at *15.

Bow Tie Thoughts

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

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

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

Santa Clara County Mock Trial Tournament

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

Prosecution Expert Describing the Fatal Attack

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

Closing Arguments by a Student Defense Attorney.

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

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

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

2011-2012 Santa Clara High School Team

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

Defendant testifying to her innocence of the crime.

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

Access Data Group

kCura Corporation

Hoge Fenton Jones & Appel

Rossi, Hamerslough, Reischl & Chuck

Littler Mendelson, P.C.

Digital Strata

Advanced Discovery

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

Printing ESI & Scanning It Is Not OK

In Indep. Mktg. Group v. Keen, the Defendant-Requesting Party requested the corporate Plaintiff conduct targeted searches with specific key words on specific custodians on the Plaintiff’s server.  Indep. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. Jan. 24, 2012).

The Plaintiff produced one multiple page PDF without any searchable text or metadata.  Indep. Mktg. Group., at *2.

The Defendant requested the Plaintiff do a reasonable search on their server for responsive ESI.  The Plaintiff responded by producing four “poor quality” PDF files without any search text.  The PDF’s were hundreds of pages long.  Indep. Mktg. Group., at *2.

In the course of the discovery dispute, the Plaintiff later refused to re-produce the ESI, claiming a $10,000 production cost was “a prohibitive cost that [Plaintiff] [was] not willing to incur for the production of the documents [Defendants] requested.” Indep. Mktg. Group., at *3.

The Plaintiff later produced disks with files that could not be opened, including system and temporary files. Indep. Mktg. Group., at *3-4, fn 1.

The Court was not thrilled with the Plaintiff’s discovery arguments.  The Plaintiff was a corporation seeking damages in the hundreds of thousands of dollars, plus punitive damages and attorneys fees. Indep. Mktg. Group., at *8.

The Court observed the Plaintiffs production methodology included identifying the responsive ESI on their computer, printing it as paper and then scanning the paper as a non-searchable PDF.  Indep. Mktg. Group., at *4-5.

The Court explained that the Plaintiff did not produce the ESI as it was ordinarily maintained by printing the ESI as paper and then scanning the documents as non-searchable PDF’s.  Indep. Mktg. Group., at *5.  Additionally, the ESI was not produced in a reasonably useable form, because it was non-searchable.  Id.

The Court rejected Plaintiff’s undue burden and cost arguments, noting that there is a presumption that the producing party incurs its own production costs.  Moreover, the Plaintiff never argued the data was not reasonably accessible, which would have been undercut by the fact they could search their computer for responsive ESI that was printed. Indep. Mktg. Group., at *6-7.

The Court ultimately granted to motion to compel, requiring the production to be re-produced in a reasonably useable form and denying an award of attorneys’ fees.

Bow Tie Thoughts

The Federal Rules of Civil Procedure and corresponding case law are abundantly clear that you cannot degrade searchable files.  Printing ESI and then scanning the paper as non-searchable PDF’s is simply not permitted by the discovery rules.

The other issue parties can end up in trouble over is arguing the cost of eDiscovery being unduly burdensome.  In a case worth hundreds of thousands of dollars, where the ESI is reasonably accessible, it is difficult to argue a production cost of $10,000 to be unduly burdensome.  It is more likely a party would spend a significant amount of money in motion practice, with the end result being the same discovery bill if the party simply produced the information correctly the first time.

Smile for the Discovery Production

In a dispute between a photographer and an educational textbook publisher, the Plaintiff sough the production of a definition list to the Defendants’ database abbreviations.  Bean v. John Wiley & Sons, 2012 U.S. Dist. LEXIS 4900, 1-3 (D. Ariz. Jan. 17, 2012).

The Defendants’ sales, printing and distribution database was originally produced as screenshots and then as an Excel file.  Bean, at *1-2.

The Excel file column headings contained many alphanumeric abbreviations, such as “LME4” and “VG Enc PAG.”  Bean, at *2.

After reviewing abbreviations reminiscent of a lens focal length formula, the Plaintiff brought a motion to compel the Defendants to produce a “key” to the abbreviations.  Bean, at *2.

The Defendants refused, arguing that the deposition testimony covered the abbreviations and that they did not have to create a document for the Plaintiffs.   Bean, at *2.

Federal Rule of Civil Procedure Rule 34(a)(1)(A) permits a party to request electronically stored information that is “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Bean, at *2, citing Fed. R. Civ. P. 34(a)(1)(A).

The Court explained a producing party has the burden of translating the ESI into a reasonably useable form.  Bean, at *2.

While the Excel spreadsheets were “generally” in a reasonably useable form, the “defendant’s use of cryptic abbreviations without definition renders these portions of the spreadsheets meaningless, just as if the data had been produced in code or in a non-readable format.”  Bean, at *3.

The Court disagreed with the proposition that the Defendant had already defined the abbreviations in deposition testimony, because it was the Defendants’ “burden to translate ESI into a useful format.”  Bean, at *3.

The Court reasoned the Plaintiff had requested the definitions of specific abbreviations.  As such, the Court found that requiring the Defendants “to supply definitions already in its possession is not overly burdensome compared to requiring plaintiff to sift through pages of documents.”  Bean, at *3.

Bow Tie Thoughts

It is novel argument, but logical a one, that “translation into a reasonable useable form,” could include producing a definition list of abbreviations.  Given how “text speak” could include a litany of shorthand abbreviations such as LOL (Laugh out Loud), the production of such a list might be necessary so “cryptic abbreviations” would not render a production meaningless.

There are valid arguments that such abbreviations could be defined in deposition or by special interrogatory.  However, requiring a party to conduct additional discovery to define abbreviations within the producing party’s control arguably goes against Federal Rule of Civil Procedure Rule 1, requiring the Federal Rules of Civil Procedure to be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

“Fear” is Not An Objection to Search Terms

In a trade secret case involving the search of electronically stored information, the parties disagreed over the use of keywords to search the data sets. Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012).

The gravamen of the dispute was the Defendant’s argument to use a set of search terms that required precise matches between search terms and ESI. Custom Hardware, at *6.  The Plaintiff countered this narrow search would prevent discoverable information from being produced.  Id.

The Court reviewed several major cases involving search terms.  Citing Victor Stanley, Inc., the Court recognized that search terms are “appropriate and helpful” for searching ESI, along with having “well-known limitations and risks.”  Custom Hardware, at *7, citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 (D.Md. 2008).

Quoting the Sedona Conference, the Court stated limitations and risks exist because “[k]eyword searches identify all documents containing a specified term regardless of context[.]“Custom Hardware, at *7, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201 (2007).

The Court explained search terms could simultaneously be over and under inclusive, finding ESI that is both irrelevant to the case and missing relevant ESI, due to word misspellings.  Custom Hardware, at *7-8. The Court summarized:

As a result, the usefulness of keyword searches as a means of discovery is limited “by their dependence on matching a specific, sometimes arbitrary choice of language to describe the targeted topic of interest.”

Custom Hardware, at *8, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201 (2007).

The Defendants’ first objection can be summarized as the fear of producing privileged information.  Custom Hardware, at *11-13.  The Court curtly stated, “Defendants’ fears provide no basis to stymie the discovery process.”  Custom Hardware, at *11.

The Court cited case precedent regarding searching hard drives, the producing party may create a privilege log expressly explaining any privileged information.   Custom Hardware, at *11, [citations omitted] and Federal Rule of Civil Procedure Rule 26(b)(5)(A)). The Court stated:

As a result, fear of disclosure of privileged information provides no basis for Defendants to object to the discovery process. Instead, if Defendants find that responsive information is also privileged, they must so state in a privilege log…

Custom Hardware, at *11.

The Court took direct aim at the Defendants’ objection that the search terms would encompass “only irrelevant information.”  Custom Hardware, at *11.

The Court found the argument to be without merit and the Defendants’ objection merely a “conclusory statement, stated without any argumentation or other support.”  Custom Hardware, at *11-12.

Finally, the Court found the Defendants’ proposed search terms to be “problematic and inappropriate” because it would limit the responsive ESI to exact search term matches, including “phrasing, capitalization, or both.”   Custom Hardware, at *12.  The Court stated:

As a result, Defendants’ proposal would fail to produce discoverable ESI simply because of an inexact match in capitalization or phrasing between a search term and the ESI. This outcome is problematic, because whether information is discoverable under Rule 26(b) does not turn on the existence of an exact match in capitalization and phrasing.

The Court found the proposed exact matching search terms “would prevent Plaintiff form obtaining discoverable information and is inconsistent with the broad scope of discovery established by Rule 26(b)(1).”  Custom Hardware, at *13.

Bow Tie Thoughts

Objections to discovery requests cannot be solely out of fear.  An objection must have legal justification.  More importantly, any challenge to search terms must be substantiated with affidavits explaining the technology at issue and supporting evidence, such as a search term efficiency report or other documentation explaining the results of a keyword search.

Trying to control eDiscovery costs by requiring search terms to be exact matches will only result in missing responsive electronically stored information. Moreover, conducting a search of a litigation support database is not the same as conducting legal research.

In Rec Solar Grade Silicon LLC v. Shaw Group, Inc., 2011 U.S. Dist. LEXIS 51459, 40-41 (E.D. Wash. May 13, 2011), the Court ordered 31 keywords to searched over a dataset. These included the following;

7. “applied technical” or ats

25. weld! /2 test! or “weld-test”

My friend Charlie Kaupp at Digital Strata noted several issues with such search terms in a presentation we did together at PFIC.  For the search string “applied technical” or “ats”, it is advisable to avoid acronyms shorter than four letters and to determine a methodology to constrain the search.  Charlie recommended changing the search to “applied technical” OR (ats /20 (applied OR technical)), so the search was constrained with elements of the phrase term.

As for the 25^th search string, Charlie explained the “weld-test” term was redundant to the broader term with the proximity operator.  Additionally, by reducing the redundancy of the search terms, a user can conserve system resources when conducting a search.  As such, the revised search would simply be “weld! /2 test!.”

The lesson from the above: Involve a consultant to help draft a search methodology.

Technology is also expanding beyond keyword searches with concept search, predictive coding, advanced analytics and other clustering methodologies.  While the knee jerk reaction by some attorneys is “technology = expensive,” these new tools can be as much as an improvement to finding responsive discovery as flying in an airplane across the country is to driving a car.

(Disclosure: I have friends at and a professional relationship with the team at Digital Strata)

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/

“Any Party’s” Claims or Defenses

Nothing says Christmas like an opinion by Judge Facciola.

Jenkins v. Wash. Metro. Area Transit Auth., is litigation over a train crash between two Washington Metropolitan Area Transit Authority trains.  Jenkins v. Wash. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 146065 (D.D.C. Dec. 19, 2011).

Like almost all litigation, the discovery dispute must have felt like a train wreck to the parties.

The discovery dispute can be summarized as follows: one subcontractor Defendant (hereinafter the Moving Party) brought a sanctions motion against another Defendant (Opposing Party), claiming they were prejudiced by the Opposing Party’s failure to produce certain information supporting the Moving Party’s defenses.  Jenkins, at *23-24.

The Moving Party also brought a motion for summary judgment, based on the sovereign immunity afforded the Opposing Party because it was Opposing Party’s contractor. Jenkins, at *15.

In its initial disclosures, the Moving Party identified witnesses from the Opposing Party and documents that supported the Moving Party’s defenses.  Jenkins, at *15-16.

The Opposing Party produced eight witnesses, allowed a site inspection of the Operations Control Center and produced 3,348,483 pages of electronically stored information.  Jenkins, at *16. The Opposing Party produced 2,476,363 pages.  Both productions were reviewed in a litigation support software.  Id.

Additional discovery from custodians was later produced, including depositions and over 4,000 documents.  Jenkins, at *17.

The co-Defendants shared an e-Discovery service provider.  The Opposing Party represented that “it was not asked and therefore did not provide the names of the “custodians” of the produced discovery since it believed that [the Moving Party] had equal access to the names” of the custodians. Jenkins, at *14.

The Moving Party argued the late production prejudiced them, because if it “had the documents sooner it could have done additional follow up discovery during the discovery period and then used the documents produced and perhaps other information developed therefrom in the motion for summary judgment it has now filed.”  Jenkins, at *18, citing the Moving Party’s Reply to the Opposition to the Motion for Sanctions.

Judge Facciola quickly, and with candid relief, stated at the beginning of his analysis:

There being no evidence of any loss of data, the complicated principles pertaining to preservation and spoliation do not, thankfully, have to be considered.

Jenkins, at *19.

The Moving Party claimed sanctions were appropriate because the Opposing Party did not comply with its initial disclosure obligations under Federal Rule of Civil Procedure Rule 26(a) by producing information related to the government contractor defense.  Jenkins, at *19.

The Opposing Party countered that they were not going to assert the government contractor defense, thus they had no duty to produce information related to that defense.  Jenkins, at *19.

The Moving Party argued in a footnote that Federal Rules of Civil Procedure require the production of requested documents that are relevant to “any party’s claim or defense,” not just those claims or defenses that pertain specifically to the producing party. Jenkins, at *20, citing Fed. R. Civ. P. 26(b)(1). 

The Court quickly zeroed in on the difference between initial disclosures under Rule 26(a) verse the scope of discovery under Rule 26(b)(1).  Jenkins, at *20.  The Court noted that the Moving Party’s view of initial disclosures would amend Rule 26(a) as follows:

(A)           . . . [A] party must, without awaiting a discovery request, provide to the other parties:

(i)                      the name . . . of each individual likely to have discoverable information-along with the subjects of that information-that any party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii)                     a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that any party . . . may use to support its claims or defenses, unless the use would be solely for impeachment;

As the Court noted, changing “disclosing party” to “any party” would “impose an extraordinary new obligation on the parties to a lawsuit…” Jenkins, at *21. The Court rejected this construction of Rule 26(a).

The Court found there was no sanction available under Rule 26(a).  Jenkins, at *21.  Further, there was no violation of a discovery order by the Opposing Party or any clear and convincing evidence of bad faith. Jenkins, at *22.  Accordingly, the Court denied the Moving Party’s motion for sanctions. Jenkins, at *23.

Bow Tie Thoughts

Initial Disclosures require a party to identify all electronically stored information within its possession, custody or control to support any of its claims or defenses in a lawsuit.  Fed. R. Civ. P. 26(a)(2).  Additionally, a party must make their Rule 26(a) Initial Disclosures based on information “reasonably available to it.” Moreover, the failure to identify ESI that supports a claim or defense can result in the discovery being excluded from a case.  Fed. R. Civ. P. 37(c)(1).

The prospect that initial disclosures could be read to apply to “any party” instead of the “disclosing party” is a sobering thought.  It would tear apart the entire concept of requesting discovery like wrapping paper if a party had to disclose “any party’s” claims or defenses.

There are many benefits to informal discovery between parties and agreeing to production during a meet & confer. Moreover, there is an attorney’s overall duty of candor to the court to avoid making false arguments based on the information within one’s control.  However, the prospect that a party need to review and disclose the ESI in its control that supports another party’s claims or defenses would add a new burden on litigants.

Misadventures in Searching Unallocated Space

The parties in I-Med Pharma Inc. v. Biomatrix, Inc., stipulated to the search of the Plaintiff’s computer system by the Defendants’ forensic expert.  I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D.N.J. Dec. 9, 2011).

The expert ran a combination of approximately 60 keywords, including French words, keywords expanded as wildcards and Boolean connectors, across all of the data on the computer system.  This included unallocated space.  The search was not targeted to specific custodians, relevant time periods or active files.  I-Med Pharma Inc., at *5-6.

Examples of the search terms included:

back order*

product*

profit*

HS*

I-Med Pharma Inc., at *5-6.

In the words of the Court:

The results should come as no surprise. The broad search terms hit millions of times across the large data set. In the unallocated space alone, the terms generated 64,382,929 hits. These hits represent an estimated 95 million pages of data.

I-Med Pharma Inc., at *6.

The opinion does not discuss whether any de-duplication, near-de-duplication, de-NISTing or other data reduction methodologies were applied to the keyword “hits.”

The Court expressed its concern in a footnote over the parties referring to keyword “hits” as separate documents.

As the Court explained:

Given the volume of hits and search terms used, this is essentially impossible—statistically speaking terms like “profit,” “loss,” “revenue,” and “profit” frequently occur together, and it stands to reason that at least some files mentioning product lines would make reference to more than one at the same time. Consequently, the Court is left to wonder whether the total hit and estimated page numbers are genuinely correct.

I-Med Pharma Inc., at *7, fn 4.

The Plaintiff was not thrilled at the idea of conducting a privilege review of the large data set.  The Magistrate Court agreed, issuing an order: 1) Allowing the Plaintiffs to withhold ESI from the unallocated space and 2) Permitting the Defendants to seek reimbursement for their search from the Plaintiff.  I-Med Pharma Inc., at *7.

The Magistrate Judge also found:

1) Good cause existed to modify the original discovery order, because the burden on the Plaintiffs would “outweigh any potential benefit that may result.”

2) Defendants had not met its burden of demonstrating the complete relevancy of the ESI they sought, including that the Defendant had not identified any ESI destroyed by the Plaintiff. 

3) The overbroad search terms made the likelihood of finding relevant information that would be admissible at trial “minimal.”

I-Med Pharma Inc., at *7-8.

The Defendants appealed the Magistrate Judge’s order.  The District Court affirmed.  I-Med Pharma Inc., at *8, 18.

The Defendants had the difficult task of demonstrating the Magistrate Judge’s order was “clearly erroneous or contrary to law.” I-Med Pharma Inc., at *8.

The District Court described the Magistrate Judge’s order as “reasonable exercise of…discretion in managing the scope of permissible discovery.” I-Med Pharma Inc., at *11.

The Defendants argued the Magistrate Judge applied the wrong standard to granting the relief from the original stipulation.  The Defendants argued “exceptional circumstances” were required to grant relief from the stipulation, citing a case involving a stipulation on liability.  I-Med Pharma Inc., at *11-12.

The Court explained that the scope of discovery is very different than a party attempting to withdraw an admission of wrongdoing post-trial.  I-Med Pharma Inc., at *13.

As the Court stated:

During discovery, the parties are still actively uncovering the evidence needed to bring a case to trial and have ample opportunity to modify and adjust their litigation strategy to any important developments. Clearly a court has the power to modify stipulations concerning discovery terms and deadlines while discovery is still ongoing without the showing of manifest injustice. A court could not effectively perform its duty to fairly and efficiently manage discovery if every minor change to a stipulated briefing schedule or deposition date required a showing of “exceptional circumstances” or “substantial and real harm.” While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.

I-Med Pharma Inc., at *13-14.

Even if the “clearly erroneous” standard applied, attorneys reviewing potentially 65 million “hits” (or 95 million pages of data) for privilege would be very expensive.  I-Med Pharma Inc., at *14-15.

The Court also rejected the Defense argument that privilege review could be limited by simply searching for the word “privileged.”  The Court explained the problems with such a search:

Even when dealing with intact files, potentially privileged information may often be found in emails, memoranda, presentations, or other documents that are not explicitly flagged as privileged or confidential. And since the data searched here is likely to contain fragmented or otherwise incomplete documents, it is entirely possible for privileged material to be found without its original identifying information.

The Court upheld the Magistrate Judge’s order, closing the opinion with a cautionary message on search terms:

While Plaintiff should have known better than to agree to the search terms used here, the interests of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.

I-Med Pharma Inc., at *17-18.

Bow Tie Thoughts

Parties get into trouble with search terms all the time. Moreover, a party may agree to a search methodology that they later regret. This can happen in multiple stages of discovery, whether it is collection, early case assessment, processing or discovery review.  Each stage involves using “search” technologies, but a search string used in a review platform to find ESI for a deposition might be too narrow at the collection stage.

While the facts of case will control whether unallocated space needs to be searched, the prospect of conducting a privilege review of millions of files the “old fashion way” is mind numbing.  It would be like trying to find a needle in a swimming pool of needles.

If extremely large data sets need to be reviewed, mechanical analytics is one way to expedite review and control discovery costs.  There are multiple products on the market with “predictive coding” abilities that learn from reviewers which ESI that is responsive, thus “machine coding” the files as “relevant” or “privileged.”

The effectiveness of this technology will turn heavily on who does the initial review, whether it is a combination of attorneys who understand the subject matter of a case; information from the parties on how they communicated and the language used in the case; types of relevant ESI; search terms or concepts agreed to by the parties in a meet and confer; plus a host of other factors.

I am sure there are eDiscovery attorneys and Magistrate Judges eagerly awaiting the right case were this technology has been properly used; the methodology documented; and declarations from the software developers explaining the science of the algorithms.  When that day happens, one judge can issue an opinion validating the use of mechanical analytics in identifying responsive electronically stored information. 

Attorneys will always be needed to decide what ESI to use in a deposition or trial, because a human being is better at determining what will convince other human beings the “truth” of a case.  However, technology can make finding what is relevant out of a data set with 65 million records far more effective than a brute force review of each record.

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