Let’s Not Print Social Media For Productions

Here are two tips on social media discovery:

Tip One: Get an expert who knows how to collect the electronically stored information on social media.

Tip Two: Downloading a Facebook profile, printing it, and conducting document review for redactions is not the best way to produce social media.

SocialMediaExamples_iStock

The Defendants in Stallings v. City of Johnston City, requested the Plaintiff produce the following social media:

Each and every social media posting by Stallings from 2011 to the present concerning her employment at Johnston City, allegations of wrongdoing against her, her suspension or termination, the investigation into missing money or wrongdoing in the Water Department, her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint. This request includes all postings made by Stallings at any time on a Facebook account, Twitter, Instagram, or any other social media site.

Stallings v. City of Johnston City, 2014 U.S. Dist. LEXIS 68566, at *7 (S.D. Ill. May 19, 2014).

The Plaintiff stated that Facebook only allows for a download of data in its entirety. As such, the Plaintiff’s attorney and paralegal spent a week printing and redacting the 500 pages of the Plaintiff’s Facebook account. Stallings, at *7-8.

The Court was not thrilled with the Plaintiff’s claimed technological hardships. The first Court ordered the Plaintiff to produce the un-redacted pages of the Facebook profile, then to produce the entire un-redacted file from 2007 to present day. Id.

The Plaintiff did not identify with whom she had relevant discussions with on Facebook or whether any privileged attached to those conversations. Moreover, the Plaintiff argued that she had conversations with minors on Facebook, but not whether any of those discussions were relevant to the lawsuit. Stallings, at *8.

The Court stated it was clear that the Plaintiff had relevant conversations on Facebook about the litigation. Id. Moreover, the Court recognized that the communications could have admissions against interest and impeachment value. As such, the Plaintiff had to provide the names and residences of the individuals she communicated with on Facebook. Stallings, at *8-9.

The Court ultimately ordered the Plaintiff to produce a redacted hard copy of all relevant Facebook pages from 2011 to the present. The Plaintiff also had to provide defendants with the names and towns of residence of the individuals with whom the Plaintiff had relevant conversations. The Court defined the relevant Facebook pages as those containing statements about this case or the litigation, including discussions of her physical or mental health. The Plaintiff did not have to provide the names and location of minors without a Court order. Stallings, at *9-10.

Bow Tie Thoughts

I thought the requesting party did a good job with their request, because it sought what was relevant to the case, not a social media fishing expedition.

This case highlights the challenges lawyers have in not retaining experts to perform collections. While not directly stated, it seemed the Plaintiff’s attorney was trying to collect the Facebook profile through the download option without an expert and then conduct a manual review. I would encourage a law firm client to try a different approach.

There are products on the market that can be used to collect social media profiles. Some products can capture the data directly, search it, tag it, and produce it. X1 Social Discovery is one such product, but there are other product solutions as well. One of these tools could have made situations like this case much easier to litigation. I would encourage lawyers to look at their different options and find a partner who could assist them. No one should have to print entire social media profiles with the technology we have today.

How Not to Be Progressive: Court Rejects Predictive Coding Not Agreed to By Parties

RichardNixonStampFighting over discovery search methodology makes me think of President Richard Nixon’s resignation speech: “Always remember, there are those who hate you. And the only way to keep them from winning is to hate them right back. And then you destroy yourself.”

Attacking a party who used predictive coding to reduce discovery review time to save money and time, only to result in a larger collection of ESI produced upon the requesting party, means the requesting party now has more to review. This is the end result of Progressive Cas. Ins. Co. v. Delaney.   

I have never been a fan of agreeing to the use of predictive coding in ESI Protocols. I do not believe such agreements are required at all by the Federal Rules of Civil Procedure. The issue is whether or not a production is adequate. That requires the requesting party offering evidence that the production is somehow delinquent with facts. That discussion does not happen without first having a production.

Parties do not have a veto power over which review application is used by a reviewing party and what features they may or may not use.  The requesting party should not attack a review methodology, unless there is a production to challenge. The entire discussion is premature and the issue is not ripe for the Court.

In the case at bar, the original dataset was narrowed by search terms to 565,000 “hits” from the original 1.8 million dataset. This search term methodology had been agreed to in an ESI Protocol by the parties. After one month of document review, the producing party realized that it could take 6 to 8 months to manually review the narrowed dataset for responsiveness or privilege. The party unilaterally decided to use predictive coding instead. Moreover, after telling the other side about their change in technology, motion practice followed. Progressive Cas. Ins. Co. v. Delaney, 2014 U.S. Dist. LEXIS 69166.

The Requesting Party wanted the Producing Party to 1) produce the 565,000 culled from the 1.8 million data set using the parties’ agreed-upon search terms subject to a clawback for privileged documents, or 2) the Producing Party apply the predictive coding methodology to the entire 1.8 million record dataset. Progressive, at *12 and *15.

The Producing Party did not want to do either approach, specifically concerned that searching the entire dataset would result in a larger privilege review.

The Court noted what has been judge-made law on using technology assisted review: Courts require the producing party to provide the requesting party with “full disclosure about the technology used, the process, and the methodology, including the documents used to “train” the computer.” Progressive, at *27-28, citing Da Silva Moore 2012 U.S. Dist. LEXIS 23550 (S.D.N.Y. Feb. 24, 2012).

The Court ordered the producing party to follow the original agreed to protocol and produce the “hit” documents to the Requesting Party within fourteen days without further review. Progressive, at *30.

The Court stated that following the Requesting Party’s protocol, the cost of review would be shifted to them. Progressive, at *31. Moreover, the Requesting Party believed they had the manpower to complete the review within one month. Id. 

The Requesting Party could apply privilege filters before production and produce a privilege log. Id. 

Bow Tie Thoughts

I do not encourage clients to have ESI Protocols that limit their ability to review discovery efficiently. I also strongly argue against the idea you need approval from the opposing party on what search methodology you can use to identify responsive discovery. It is the producing party’s right to use keywords, concept search, visual analytics, email threading, clustering, find similar, or any other form of technology-assisted review. That includes predictive coding. The requesting party does not get a veto power over what technology the producing party can use. The requesting party has “the burden of proving that a discovery response is inadequate.” Abt v. Jewell, 2014 U.S. Dist. LEXIS 50766, 12-14 (D.D.C. Apr. 11, 2014), citing Barnes v. D.C., 289 F.R.D. 1, 6 (D.D.C. 2012) and Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007).

You cannot prove a discovery response is inadequate if you do not have a discovery response. The entire idea of attacking the use of predictive coding is premature if there is no production to be reviewed.

The ugly wrinkle in this case is the search and production methodology mandated in the ESI Protocol agreed to by the parties. I strongly encourage parties to not agree to actual technological steps to be used, because it limits the ability to conduct discovery in a cost effective manner. These agreements are often enacted without the advice of an eDiscovery Consultant who knows how the actual technology works.

What parties should discuss and codify in an ESI Protocol is the subject matter of the lawsuit. Who are the key players? What are the relevant date ranges? What are the terms of art used by the parties? What is the data actually making up the case? Those, and many others, are the topics parties need to agree to, not whether you can use visual analytics to identify date ranges or data clustering to determine what was relevant.

The use of predictive coding has been twisted because lawyers think they need permission to use it. They do not. The burden is on the opposing side to prove a production was inadequate, not the fact the producing party used one form of technology-assisted review over another.

 

Lessons From Drafting Overly Broad Requests

Paint_BrushesDrafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce “[a]ll email and text messages sent or received on Mayo email and text messaging accounts.”

The Magistrate Judge found the request to be overly broad.

However, the Producing Party had produced responsive discovery with redactions, thus the Requesting Party challenged the overbroad ruling as unwarranted and moot. Elkharwily v. Mayo Holding Co., 2014 U.S. Dist. LEXIS 53890, 8-10 (D. Minn. Apr. 18, 2014).

The Producing Party countered that discovery produced with redactions and claims of privilege were subject to the future consideration of the Magistrate Judge. Id.

The Court stated that the Magistrate Judge had “expressly excluded from his order any determination regarding redactions or assertions of privilege, reserving consideration of those topics. As a result, notwithstanding the magistrate judge’s conclusion of overbreadth, it appears that Elkharwily has no actual objection to a ruling by the magistrate judge regarding Requests for Production 1 or 2.” Id. 

The Requesting Party also challenged an overbroad ruling for a request for production of, “[a]ll documents, notes, communications, emails and text messages relating to or to any of the claims or defenses in this action prepared, sent or received by [various entities, departments and individuals].” Elkharwily, at *9-10.

The Producing Party stated that they had produced all responsive discovery, as such, the Court found there was not an objection to the Magistrate Judge’s ruling. Elkharwily, at *10.

Bow Tie Thoughts

Reviewing the requests for production and challenging the objections make me think of two different issues: drafting a narrowly tailored request and being able to prove a production was inadequate.

As to the first issue, a request for production should include more than identifying the sender and all communications. That could be overly broad on its face, given the number of emails and texts sent in a day. Attorneys are well served to ask for specific communications between individuals, date ranges, and on specific subjects. The trick is not having the request become too narrow, but you cannot simply ask for everything, because you might actually get everything. That could make document review a nightmarish quagmire, because you actually got what you asked for.

The second issue requires a different strategy. If you think a production is inadequate, because there “should be more” emails or text messages, you have to prove it. This is not a metaphysical discussion of whether something exists or not, but you need some evidence of production gaps. This can include missing files that the requesting party has that should have been produced (such as part of an email chain), if not outright days or weeks of missing email. If there is such a production gap, a party can demonstrate by affidavit that the production is not complete.

Social Media Request for Production That Got It Right

Requesting social media relevant to a lawsuit should be done as standard operating procedure now. However, some attorney have a difficult time with narrowing their requests beyond, “Produce your Facebook profile.” Such fishing expeditions are summarily denied. See, Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012), Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013) and Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, at *6-7(M.D. Tenn. Mar. 20, 2013).

Here is a case where the requesting party got it right. The Court ordered the producing party to respond to the following request for production:

“[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health condition, or your activities on days when you requested FMLA leave.

Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).

The Court stated that the request sought information about heath conditions that gave rise to the FMLA requests. Id.

In my opinion, the request was narrowly tailored for the issues that are the subject of the lawsuit. This is the sort of thought attorneys need to exercise when requesting social media. A party cannot simply ask for the opposing side’s password to Tumblr or Instagram. A request has to be for information relevant to the lawsuit, not a fishing trip across the adverse party’s Facebook Wall for whose status updates they “liked.”

 

Always Document Services to Explain eDiscovery Services for Taxation of Costs

A prevailing party sought $61,548.65 in costs. They got $7,106.65. Kwan Software Eng’G v. Foray Techs., 2014 U.S. Dist. LEXIS 63933, 10-19 (N.D. Cal. May 8, 2014).

United States District Judge Susan Illston is very good at eDiscovery disputes. This case highlights the importance of not just knowing how to conduct eDiscovery services, but how to invoice for them.

The non-prevailing party challenged eight eDiscovery invoices on the grounds the prevailing party sought 1) eDiscovery costs that went beyond the costs associated with the actual production of the documents; and 2) failed to provide sufficient detail of its e-discovery costs to allow the Court to determine what are actual copying costs and what are non-taxable intellectual efforts. Kwan Software Eng’G, at *13.


The “Document Processing” invoice included fees for conversion from native files to TIFFs; “Bates stamping” each page (which is down by the processing engine, not someone actually stamping); and exporting the associated metadata. Kwan Software Eng’G, at *14. These fees are generally recoverable, but the Court stated that there was insufficient information to determine whether the costs were taxable. Id. Moreover, the prevailing party produced only 229,000 pages of discovery (assuming each TIFF is being counted as a page), but the invoices showed 344,445 pages had been processed (again, assuming TIFFs as pages and not files). Id.

The Court stated that the charges included documents that were not produced, thus not used in the litigation. As such, the Court only awarded costs of $6,870, which represented a charge of $0.03 per document for bates stamping and TIFF conversion for 229,000 documents. Kwan Software Eng’G, at *14-15.

The Court further denied costs for data hosting and management, because those costs are not recoverable. The Court also denied costs for production hard drive not actually produced to the opposing party (which otherwise would have been recoverable if actually produced). Kwan Software Eng’G, at *15-16.

Judge Illston also denied the producing party’s project management costs, because it was “unclear from the invoices whether the project management fees were actually related to document processing as opposed to other non-taxable activities.” Kwan Software Eng’G, at *16.

Bow Tie Thoughts

Judges cannot award costs to prevailing parties if there is not sufficient documentation to explain how the services were necessary for the litigation in producing discovery. This requires service providers to go into detail in their invoicing to explain each step of the workflow.

Consider the project management costs. Those could be recoverable, if there is sufficient information to explain how it was part of processing that went to actual copying, opposed to just intellectual efforts.

eDiscovery requires a specialized skill set and knowledge. Processing is not something done in a vacuum, but takes knowledge of how the application works and understanding what is needed in the case to be done effectively. A party cannot simply invoice “processed data for production” and hope a Judge will opine why those actions were necessary for the case. This takes documentation to educate the Judge on why the actions were done in order to produce the discovery in the litigation.

Native File for Cloud Email

A producing party claimed that it was “impossible” to produce Gmail in Native File Format because, “Gmail account user and Google does not permit its users to copy e-mails and documents in native format.” As such, the Defendant produced the gmail emails by forwarding them to the Plaintiff. Sexton v. Lecavalier, 2014 U.S. Dist. LEXIS 50787, 5-8 (S.D.N.Y. Apr. 11, 2014)

The Plaintiff disagreed and countered the emails could be produced by either 1) downloading the messages to a program like Outlook or 2) Gmail e-mails that have been displayed [6] in their “original” format by clicking “show original” on the Gmail website and subsequently saved as PDF files. Sexton, at *6.

The Plaintiff’s declaration explained in detail methods for exporting email. Id.

The Court stated that even though producing “cloud” email might be difficult, that did not “absolve him of his obligation to produce documents in a reasonably useable format.” Sexton, at *6.

The Court proceeded to recount the value of metadata and production methods to prevent the degradation of valuable metadata. Sexton, at *7, citations omitted. The Court stated the following on the Defendant’s production obligations:

In the context of a request for native e-mails stored with a third-party provider, a functionally native format that preserves relevant metadata, such as those formats that can be generated through an e-mail client like Microsoft Outlook or through e-discovery collection software, should generally suffice.

Sexton, at *7-8.

Bow Tie Thoughts

Attorneys have to get used to the reality that collecting cloud email will require the use of either a computer forensic expert. There are multiple ways to collect cloud email, with one method being to download the email to Outlook, followed by the email then being defensibly collected. Other applications can collect directly from the cloud. Regardless of the method used, the custodian should not do the collection. Self-collection often results in self-selection. Self-selection can end with relevant email not being produced.