“Stop and Think” About Skype for Depositions

Judge G.R. Smith issued a great reminder that lawyers must “stop and think” when dealing with discovery disputes. This duty is imposed by Rule 26(g) and is “an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and obligates each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. LEXIS 4837 (S.D. Ga. Jan. 9, 2014) citing Bottoms v. Liberty Life Assur. Co. of Boston, 2011 U.S. Dist. LEXIS 143251, 2011 WL 6181423 at * 4 (D. Colo. Dec. 13, 2011).

Skype-IphoneThe case at issue requiring lawyers to “stop and think” involved the plaintiffs in a farmworker rights lawsuit. Three of the plaintiffs were in Mexico and unable to return to Georgia for their depositions. The Defendants wanted the depositions to be held in Georgia.

The Court, on its own, brought up the use of Skype to conduct the depositions. The Court explained that “Skype is now used to facilitate many a human interaction,” including parent-child visitation orders, marriages and depositions where travel cost is prohibitive. Hernandez, at *8-9, citing  Young v. Young, 2013 Ark. App. 707 (Ark App. 2013), Tshiani v. Tshiani, 208 Md. App. 43, 56 A.3d 311, 321-22 (Md. App. 2012) and  Yu Hui Chen v. Chen Li Zhi, 109 A.D.3d 815, 971 N.Y.S.2d 139, 140 (N.Y.A.D. Sept. 11, 2013).

The Court directed the parties to meet and confer over Skype-based depositions with translation and recordation, or the Plaintiffs contribute $1,000 to the Defendants for conducting the depositions in Mexico. Hernandez, at *9.

Bow Tie Thoughts

I am thrilled judges are ordering parties to look at using video depositions to reduce travel costs. However, I personally would not use Skype for a deposition. This is not because I do not use Skype, but would prefer a remote video deposition service instead. These services have applications designed specifically for remote depositions. They also understand the requirements for remote court reporters. Many states often require a court reporter to be with the witness for being properly sworn in. Moreover, an international setting likely would require the deponents to go to the US Embassy to be deposed.

I agree with Judge Smith’s logic, reading of the rules and solution. I would totally give him a high five for not being afraid to solve problems with technology. I just would use a different videoconference tool.

Nitty Gritty Discovery Requests

US Senior District Judge John Kane took on multiple discovery disputes against a Plaintiff in a wage an hour case. It is an amazing case study of what could be requested in a case.

Requesting Communications Off the Girlfriend’s Computer

SearchTerms_RelevantThe Defendants requested all ESI communications regarding the case, which included the Plaintiff’s girlfriend’s computer.

The Plaintiff objected to information from the Plaintiff’s girlfriend’s computer being searched because the information was irrelevant.

The girlfriend had assisted the Plaintiff in finding an attorney after he “…told her to look for a lawyer for me and she looked it up.” Lozoya v. All Phase Landscape Constr., Inc., 2014 U.S. Dist. LEXIS 7135, at *5. (D. Colo. Jan. 21, 2014).

The Court disagreed the information was irrelevant, stating:

Despite the seemingly narrow role Ms. Isla and her computer played in this matter, the Isla ESI is nonetheless relevant because the Isla ESI, at minimum, will allow Defendants to get a timeline of when Mr. Lozoya began searching for counsel. Further, the search terms Ms. Isla used may prove helpful. For example, evidence revealing that Ms. Isla hunted for counsel using the phrase “attorneys specializing in workers with no lunch breaks,” would boost the theory of Plaintiffs’ case, while evidence showing that Ms. Isla hunted for counsel using the phrase “reasons to sue employer” might be less probative. While the ultimate relevance of the Isla ESI remains to be seen, there is a logical chain of inferences to support my finding that the data sought appears reasonably calculated to lead to admissible evidence. Accordingly, Plaintiffs must produce the Isla ESI.

Lozoya, at *6.

It Ain’t Broke Until a Computer Forensics Expert Says So

The Plaintiffs argued two other computers subject to the discovery requests were broken. One computer had a shattered screen and the other incapable of holding a charge. Additionally, neither was backed-up when they failed. Id. 

The Court found that the information on the computers would not be found unavailable until a computer forensic expert examined the machines. As such, the Plaintiffs had to produce the ESI unless they could “cite to legal authority or point to factual support for their contention that it is impossible to extract data from the damaged computers.” Lozoya, at *7.

Phone ESI is More Than Call Records 

The Plaintiffs also challenged producing communications from cell phones on the grounds the Defendants had the communications between the parties.

Cell phone discovery is far more than the call records between the parties. There potentially are text messages, photos, voice memos and other information available on a cell phone.

The Court stated that the Defendants requested relevant communications with any person, not just the Plaintiff’s supervisors. The Court ordered the Plaintiffs did not have to produce phone ESI that was duplicative of ESI the Defendants already possessed, but “[f]or all other phone ESI in Plaintiffs’ possession relating to alleged wage and hour violations, however, Plaintiffs must pony up, excepting attorney/client privileged communications.” Lozoya, at *8.

Bow Tie Thoughts

It is not often a judge literally says, “pony up,” but it happened here.

Discovery is messy. I wager most cases are like this one, with parties fighting over single computers and phones. Requesting ESI from archiving systems and enterprise content management systems is the likely goal of service providers, but state court cases and single plaintiffs will see ESI from multiple sources that cause a computer forensic expert some frustration with potentially unusual situations.

It is noteworthy the ESI sought from the girlfriend were her “Google” searches for a lawyer. I have not seen that before in a case, even though I am sure this was not the first time it happened.

It should be noted that discovery requests for specific communications do not mean the requesting party gets full access to phones or other computers. The ESI must be relevant. As such, attorneys need to understand what tools can be used to acquire relevant data, which will require the help of a service provider in finding responsive discovery.

Finally, a lawyer cannot declare a computer is broken beyond repair. That very well may be the case, but a Court almost always requires at least an expert affidavit explaining why ESI is not reasonably accessible after examination by an eDiscovery expert.

No Sanctions for Following Records Retention Policy

ThinkMcFly_DocRetentionIt is not every day you see lawsuits about insurance policies from 1986 to 1987.

Add Judge  Paul Grimm’s powerhouse footnotes and you get a great lesson in document retention policies and litigation holds (plus a great footnote on the state of mind exception to hearsay for all the evidence fans).

This asbestos insurance coverage litigation was not filled until November 2012. As one could expect, there were significant gaps in documents from the passage of time. The Court stated the following regarding the destruction of documents in footnote 6:

Were there any evidence in the record to show that AC&R so much as had threatened legal action before the destruction of those documents, it might be sufficient to find that PMA acted improperly in destroying its documents and was not prejudiced by the passage of time. See Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 524 (D. Md. 2010) (“It generally is recognized that when a company or organization has a document retention or destruction policy, it ‘is obligated to suspend’ that policy and ‘implement a “litigation hold” to ensure the preservation of relevant documents’ once the preservation duty has been triggered.” (citation omitted) (emphasis added)). Because the duty to retain documents did not arise for PMA until after their destruction, it cannot be penalized for following its records retention policy.

Ac&R Insulation Co. v. Pa. Manufacturers’ Ass’n Ins. Co., 2014 U.S. Dist. LEXIS 9063, 29-30 (D. Md. 2014).

Bow Tie Thoughts

You cannot sanction a party for following its normal document retention and destruction policy if there is no duty to preserve. Correspondence that took place during the Reagan years is highly unlikely to still exist as a simple matter of a company’s document destruction policy.

What will be an interesting question is litigation in the 2030s. Will electronically stored information on 20 year old external hard drives still be reasonably accessible if they still exist? Will such “old” information be proportional to the merits of a case? I only have to look at my old laptop from law school to imagine the challenge in recovering old civil procedure outlines.

My gut instinct is the answers to these questions will be “no.” However, let’s see what the future holds.

eDiscovery Leaders on What’s Big in 2014

Legal Tech New York is quickly approaching. I sat down with friends who are eDiscovery leaders and asked them three basic questions:

What are big eDiscovery issues for 2014?

What are the tech solutions?

What can we learn from you at LTNY? 

We also discussed upcoming geek movies in 2014.

Michele Lange from Kroll Ontrack on 2014 & Legal Tech 

Jason Krause from Nextpoint on eDiscovery in 2014 

Drew Lewis On eDiscovery in 2014 & Legal Tech New York 

Caitlin Murphy from AccessData on Legal Tech New York 2014 

Ian Campbell from ICONECT on eDiscovery & LTNY 2014 

Nick Robertson from kCura on eDiscovery 2014 

Hosting ESI is Not “Making Copies” for Cost Recovery

Judge Young B Kim posed an interesting question for a party seeking costs for the hosting of ESI to review: Applying these principles [Race Tires, Rawal, & Johnson] to the specific question of online hosting costs, this court finds that these costs may be recoverable only if hosting amounted to “copying” of ESI for production. Massuda v. Panda Express, Inc., 2014 U.S. Dist. LEXIS 4956, at *21 (D. Ill. 2014).

The issue: does hosting ESI equal “making copies”?

Sadly, you do not need a fortune cookie to see the Court would reject the hosting argument.

Chinese Fortune Cookie broken with blank paper, on white background

The Court held no, but not in a way to block any future arguments for cost recovery. The Court reviewed the Defendant’s hosting invoices and stated they “did not demonstrate that the Relativity services included some form of conversion of data akin to “making copies” for use in this case. Without evidence of this critical nature, this court has no authority to award the hosting costs in this case.” Massuda, at *21 [emphasis added].

The service provider’s invoices said the three boxes of documents were hosted for “Document Search and Retrieval” and “Monthly Relativity Disk Storage.” The attorneys explained that the review application allowed them to “organize, manage and review documents.” Id. 

The Court further noted that “§ 1920(4), for better or worse, is not concerned with attorney efficiency or convenience,” in response to the defense argument that the hosting was “reasonable and necessary” because they had little time to process the documents. Massuda at *21-22. As such, the Court denied the hosting cost of $3,087.92. Massuda at *22.

Bow Tie Thoughts

In my opinion, one of the biggest obstacles to recovering eDiscovery costs is explaining the use of the technology. I strongly believe that making a mirror image of a hard drive IS making a copy of ESI.  However, this has to be explained by an expert.

Service provider invoicing is almost always not written by an attorney who also is an eDiscovery expert (however, many do exist). A judge looking at an invoice that simply says “data hosting” understandably might think the application is an online warehouse. This could not be further from the truth, given the steps taken to collect the ESI, process it, and then host it in a system that has conceptual search tools, data clustering, de-duplification, and the many advantages of predictive coding.

It is my hope that attorneys educate their service providers on what the local discovery judges want to see in an invoice in a cost case. Alternatively, service providers should start thinking about this issue, so invoices for processing and hosting will contain enough information for a judge to grant a cost motion.

One last point: the Court noted that § 1920(4) “is not concerned with attorney efficiency or convenience.” However, Federal Rule of Civil Procedure Rule 1 is concerned with the “just, speedy, and inexpensive determination of every action.” I hope that the principles of Rule 1 would trump any rule NOT concerned with efficiency that drives down costs, instead of inefficiencies that drive up costs. In my view, denying costs for processing for native review and instead awarding costs for conversion to static images, which is usually an increase in processing costs, violates Rule 1 by creating an incentive to not conduct a case in a “just, speedy, and inexpensive” manner.

The Empire State Strikes Back (On the Form of Production)

In an insurance dispute over coverage, a Plaintiff sought production of electronically stored information in native file AND TIFF format after the Defendant produced discovery in hard-copy format. The Defendant opposed re-producing in native file format and sought cost-shifting if required to produce natively. Mancino v Fingar Ins. Agency, 2014 N.Y. Misc. LEXIS 30 (N.Y. Misc. 2014).

EmpireStateBuildingNew York law allows the “full disclosure of all matter material and necessary” in a lawsuit. Mancino, at *3 citing CPLR §3101(a).

The Plaintiff sought the ESI in native file format with TIFF images in order to view objective metadata including the author(s), dates of creation, and dates of edits on a key file to know whether an “Activity Report” was changed after the initial creation or the start of the lawsuit.  Mancino, at *7.

The Defendant countered that issues of metadata were “not involved” in the lawsuit and such a production was unnecessary. Id. the Defendant further argued the Plaintiff should have incurred the $3,500 native production costs and that the TIFFing would be a “laborious task.” Mancino, at *8.

Judge Rakower quickly listed the Zubulake cost-shifting factors (cited in U.S. Bank Nat. Ass’n v. GreenPoint Mortgage Funding, Inc., 94 A.D. 3d 58, 63-64 [1st Dept 2012]) and held that cost-shifting was not justified and that the producing party was to pay their own production costs. The Court clearly ordered the production of the ESI in both native file format with TIFFs. Mancino, at *8-9.

Bow Tie Thoughts

State court litigation is often overlooked by eDiscovery commentators.  Mancino is a very good reminder that over 90% of litigation in this country is in state court about regular people. The Plaintiffs in this case had their home burglarized and the resulting litigation was over coverage to recover stolen property. The key discovery focused on a file over who changed what and when on an insurance document. Few examples better highlight the need for metadata.

One big difference between this case and Federal Court is that a producing party need only produce in one form. A producing party would have to produce in native file format or with TIFF and metadata, not both. That being said, a production cost of $3,500 on a case of this size might be on the high side (it is unclear how many computers were at issue, number of hours spent, cost of production media, etc). Moreover, most processing software could do such a production with a few keystrokes (and I would bet at a lower cost then argued to the Court, depending on the volume of data to be collected pertaining to one insured party and other relevant files). There are of course other factors that could drive up costs, but I would need more information to understand why there was a $3,500 production cost estimate for the specific discovery sought.

My Top 2013 Case Law Lessons Learned

2013 was a very interesting year for case law. My video re-cap focuses on litigation holds, proportionality and the taxation of costs. I also had a little fun with the video editing.

Some of the cases discussed in the video include:

AMC Tech., LLC v. Cisco Sys., 2013 U.S. Dist. LEXIS 101372 (N.D. Cal. July 15, 2013)

Apple Inc. v. Samsung Elecs. Co., 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug. 14, 2013)

Alzheimer’s Institute of America v Elan Corp, 2013 U.S. Dist. LEXIS 31952 (Jan. 2013)

 Ebay Inc. v. Kelora Sys., LLC, 2013 U.S. Dist. LEXIS 49835 (N.D. Cal. Apr. 5, 2013)

Ancora Techs., Inc. v. Apple, Inc., 2013 U.S. Dist. LEXIS 121225 (N.D. Cal. Aug. 26, 2013)

I am optimistic for 2014. I have a feeling the form of production, proportionality, and many other issues will continue to be the subject of case law for the year to come.