Nebraska, Where Proportionality is Alive and Well in Discovery

Nebraska stampOne lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit.

The case is a Fair Housing Act suit involving claims that students were prohibited or hindered from having “emotional assistance animals in university housing when such animals were needed to accommodate the requesting students’ mental disabilities.” United States v. Univ. of Neb. at Kearney, 2014 U.S. Dist. LEXIS 118073, 2 (D. Neb. Aug. 25, 2014).

A protracted battle over the scope of discovery broke out between the parties. The Defendants argued the search, retrieval, and review for responsive discovery was too expansive and would have been unduly burdensome. Kearney, at *5-6. As the Government’s search requests included “document* w/25 policy,” you can see the Defendant’s point on having broad hits to search terms. Kearney, at *20.

The Government’s revised search terms would have 51,131 record hits, which would have cost $155,574 for the Defendants to retrieve, review, and produce the responsive ESI. Kearney, at *5-6. This would have been on top of the $122,006 already spent for processing the Government’s requests for production. Kearney, at *7.

The Court noted that the Government’s search terms would have required production of ESI for every person with disability, whether they were students or contractors. Kearney, at *6-7. The Government argued the information was necessary, and justified, in order to show discriminatory intent by the Defendants. Id.

The Defendants wanted the scope of the discovery requests narrowed to the “housing” or “residential” content, which would have resulted in 10,997 responsive records. Kearney, at *7.

The Government did not want to limit the scope of discovery and recommended producing all the ESI subject to a clawback agreement [notice not a protective order] for the Government to search the ESI. The Defendants argued such an agreement would violate the Family Educational Rights and Privacy Act by disclosing student personal identifiable information without their notice and consent. Kearney, at *8.

Motion practice followed with the Defendant requesting cost shifting to the Government for conducting searches, the use of predictive coding software, and review hosting fees. Kearney, at *8-9.

The Court ordered the parties to answer specific discovery questions, which the Government did not answer, on “information comparing the cost of its proposed document retrieval method and amount at issue in the case, any cost/benefit analysis of the discovery methods proposed, or a statement of who should bear those costs.” Kearney, at *9.

The Court was not keen on the Government outright searching the personal data of others unrelated to the case. As the Court stated:

The public and the university’s student population may be understandably reluctant to request accommodations or voice their concerns about disparate or discriminatory treatment if, by doing so, their private files can be scoured through by the federal government for a wholly unrelated case. The government’s reach cannot extend that far under the auspices of civil discovery; at least not without first affording all nonparties impacted with an opportunity to consent or object to disclosure of information from or related to their files.

Kearney, at *18-19.

The Court stated it would not order the production of over 51,000 files with a clawback order. Moreover, the cost to review all of the ESI exceeded the value of the request. Kearney, at *19.

The Court did not accept the Government’s claim that it needed to conduct an expansive search. Kearney, at *19-20. The Court stated the following on the fundamentals of civil discovery:

Searching for ESI is only one discovery tool. It should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery is complete. For example, the government proposes search terms such as “document* w/25 policy.” The broadly used words “document” and “policy” will no doubt retrieve documents the government wants to see, along with thousands of documents that have no bearing on this case. And to what end? Through other discovery means, the government has already received copies of UNK’s policies for the claims at issue.

Kearney, at *20.

The Court further stated that “absent any evidence that the defendants hid or destroyed discovery and cannot be trusted to comply with written discovery requests, the court is convinced ESI is neither the only nor the best and most economical discovery method for, and depositions should suffice—and with far less cost and delay.” Kearney, at *21.

Bow Tie Thoughts

This case has significant privacy interests, but at its core the issue is one of proportionality. What was the cost of discovery and its benefit? In the end, the cost of expansive search terms that impacted the third party rights of others, outweighed the benefit of the discovery to the case.

The fact we have amazing search technology that can search electronic information does not mean we can forget how to litigate. The use of “search terms” cannot swallow the actual claims of a case.

It is heartening to see a Court say no to the data of unrelated third parties being enveloped into a discovery production. While there are many ways to show discrimination, requesting the electronically stored information, protected by Federal and most likely state law, of third parties should give any Court pause.

The use of predictive coding to focus the scope of discovery, or visual analytics to identify relevant information, or clustering to organizing similar information is fantastic technology to expedite review. However, the fact that technology exists still means lawyers have to use requests for admissions, interrogatories, and have requests narrowly tailored for responsive ESI.

 

Remembering Browning Marean

I was deeply saddened to learn of the passing of Browning Marean. Both Craig Ball and Chris Dale have written very eloquently about Browning. I encourage you to read both of their tributes.

Browning Marean was the senior statesman of eDiscovery. There are few people who had the grace and knowledge of Browning. The man had the voice of a classic radio broadcaster who made audiences stop and listen.

Browning_JudgePeck_LTWC2009

Browning set the gold standard when it came to giving a presentation. Whether he was moderating a panel discussion, delivering a keynote, or holding court with a judge, his style was unmatched.

To say Browning was an “early adopter” of technology is an understatement. Browning was the geek’s geek. The man loved technology. He joked he liked trying out a product before even the Beta test.

Browning had a natural gift to identify useful new technology. It was Browning who introduced me to Zoom.us, the product I now use for my audio and video podcasts. His one call to tell me about the product made a huge impact on work I do weekly.

I enjoyed my video calls with Browning. He usually greeted me with, “Joshua my good man, how are you?” I am going to greatly miss discussing the law, politics, and life with Browning.

I will never forget my adventures with Browning. He was a gentleman who cared about people, and a lawyer who set a high bar for the rest of us to follow.

Browning was a legend across the entire world of eDiscovery and he will be missed.

Browning_Iconect-April2012

Does Proportionality Disappear If a Lawyer Says “Predictive Coding” Three Times?

The In re Bridgepoint Education case is not one about the merits of predictive coding, but one of proportionality over expanding the scope of discovery by nine months. In re Bridgepoint Educ., 2014 U.S. Dist. LEXIS 108505, 10-11 (S.D. Cal. Aug. 6, 2014). While the cost of document review and the use of predictive coding have a starring role in the opinion, let’s not forget the second discovery dispute in the case ultimately is about proportionality.

The Defendants claimed that expanding the scope of discovery by nine months would increase their review costs by 26% or $390,000 (based on past review efforts in the case). In re Bridgepoint Educ., at *6-7.

Computer-Search-Magic

The Plaintiffs countered that the review costs would more likely be $11,279, because of the predictive coding system the Defendants would use instead of manual review. In re Bridgepoint Educ., at *7.

The Defendants countered that “predictive coding” did not make “manual review” for relevance elective, because the predictive coding software assigned a percentage estimate to each record on the record’s probability of being relevant. Id. As such, attorney review is still required for relevance and privilege review. Id.

The Court denied expanding the scope of discovery by nine months based on the “proportionality” rule of Federal Rule of Civil Procedure Rule 26(b)(2)(C). The Rule states a Court can limit discovery if the “burden or expense of the proposed discovery outweighs the likely benefit.” In re Bridgepoint Educ., at *9-10.

The Court found expanding the scope to be unduly burdensome. Moreover, while there might have been relevant information in the expanded timeframe, the Court agreed with the Defendants that relevant information would be in the originally agreed timeframe. In re Bridgepoint Educ., at *10-11.

Predictive Coding was also at the center of the fourth discovery dispute. The Plaintiffs argued discovery produced from three Individual Defendants should be added to the Defendants’ predictive coding software. In re Bridgepoint Educ., at *12. According to the Plaintiffs, the Defendants “unilaterally-selected search terms” to identify the original production. Id.

The Defendants argued their review process for the original production was reasonable. Moreover, adding the original production to the predictive coding process could “negatively impact the reliability of the predictive coding process.” In re Bridgepoint Educ., at *12-13. However, the Defendants were willing to run additional searches on the Individual Defendants’ production. In re Bridgepoint Educ., at *13.

The Court noted that the Defendants’ linear search methodology for the three Individual Defendants had been approved by the Court. As such, the Court ordered the parties to meet and confer on additional search terms on the original production for the Individual Defendants. Id.

Bow Tie Thoughts

In re Bridgepoint Education is an interesting spin on predictive coding cases, because effectively the REQUESTING party is arguing for the producing party to use predictive coding to reduce proportionality issues.

Businessman managing electronic documentsFirst things first: Saying, “predictive coding” has no magical properties. Nor will review costs decline by getting the opposing party to say Rumpelstiltskin. Even if an attorney is somehow tricked into saying Mister Mxyzptlk’s name backwards in a hearing, a Court will always be concerned about proportionality before expanding the scope of discovery.

Proportionality will always be concerned with cost of review, but discovery review does not exist independent of the case. The scope of discovery should not be expanded because the cost of review can be reduced leveraging advanced search capabilities alone. The issue is whether there are relevant records in the expanded universe and if the “burden or expense of the proposed discovery outweighs the likely benefit.”

Finally, just because one search methodology was used to identify records over another does not devalue the responsiveness of the production. If a requesting party is concerned with the adequacy of a production, challenge it accordingly by showing production gaps or other evidence to demonstrate the production is inadequate.

Don’t Phone in Adverse Inference Allegations

I have a nut on the phoneCan a Plaintiff win adverse inference instructions for the destruction of a phone recording destroyed after a one-year retention policy and whose relevance (or existence) was not known by the Defendants for two years after the event happened?

Short answer is no.

The test for establishing adverse inference instructions for the destruction of evidence is:

(1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;

(2) That the records were destroyed with a culpable state of mind; and

(3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Candy Marcum v. Scioto County, 2014 U.S. Dist. LEXIS 112100, 42-43 (S.D. Ohio Aug. 13, 2014).

The case involved the Plaintiff seeking adverse inference instructions for the recording of a phone call in November 2008. The deceased called his wife from the county jail. The recording was deleted per the one-year document retention.

The Magistrate Judge initially found that the phone recording was destroyed per the Defendant’s document destruction policy, but granted adverse inference instructions because of the Defendants’ “negligence.” The Magistrate Judge looked to the facts that the Sheriff requested an investigation into the death of the victim and the Plaintiff had hired an attorney. Marcum, at *43.

The District Court Judge found these facts did not constitute enough for an adverse inference instruction for the phone recording. The Defendants did not know of the recording, which goes against the “culpable state of mind” requirement for adverse inference instructions. Marcum, at *43-44.

The Plaintiff further declined an interview with the investigator in 2008 and did not notify the Defendant of the existence of the phone call. Moreover, the Plaintiff waited two years to file a lawsuit and request the recording. Marcum, at *44. The existence of the recording was not made until 2010. Id.

The Defendants did retain relevant video, but claimed they never knew of the phone call or its relevance. As such, the District Court modified the Magistrate Judge’s order regarding adverse inference instructions. Marcum, at *48.

Bow Tie Thoughts

Attorneys cannot phone in spoliation allegations. If one side believes information exists that should be preserved, include that in your preservation letter to the opposing party. It is difficult for one party to be attacked for the destruction of evidence if they were never on notice of its existence. Moreover, discuss possible sources of relevant ESI during the meet and confer to ensure the electronic information is both identified and preserved.

Social Media Hearsay Objections

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.

spilledwafflecone

Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible under Federal Rule of Evidence 403 (likely because it would confuse the issues or cause prejudice). Id.

The Defendant also objected to the statement as hearsay (an out-of-court statement offered for the truth of the matter asserted). The Court opined that the statement was not being offered to prove the declarant was actually “sick and tired” of customer complaints, but evidence of the frequency of customer complaints. Fairweather, at *17. This would mean the statement was being offered for the truth of the matter asserted and thus would be hearsay. The Court further found the deposition testimony about the status message to be cumulative and would not be admitted. Id. 

Ironically, the Court did not invoke the Best Evidence Rule. The dispute focused on the Plaintiff’s deposition testimony about a status message she saw from another person. There is no reference to a print out, screen shot, or any capture of the Facebook status message. This arguably would also violate the “Best Evidence Rule,” because the “writing” was not actually included as evidence.

Spoliation, Texas Style

The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).

This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). 

The jury is to only hear evidence of spoliation that is related to the lawsuit. If there is spoliation, the then Trial Court can craft a proportionate remedy based upon the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party. Brookshire Bros., Ltd., at *4.

The facts of the Texas case involved video footage at a grocery store of a slip and fall. The Plaintiff slipped at the store and reported the incident the following day after going to the emergency room. The store saved video of the fall, starting from before the Plaintiff entered and left the premises. The video lasted 8 minutes. However, the rest of the video was deleted per the company’s data destruction policy after 30 days. Brookshire Bros., Ltd.  at *6-7.

The Texas Supreme Court held that a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy. Brookshire Bros., Ltd.  at *31.

The Court held that the deletion of the video for the entire day of the incident did not justify the jury spoliation jury instruction. Furthermore, the video showing the actual fall was presented to the jury. Brookshire Bros., Ltd.  at *46-47. The Court found that the failure to preserve additional video footage did not irreparably deprive Plaintiff of any meaningful ability to present his claim. Brookshire Bros., Ltd.  at *47-48. The issuing of the spoilation jury instruction was an abuse of the Trial Court’s discretion. Brookshire Bros., Ltd.  at *48.

Bow Tie Thoughts

The preservation of electronic evidence is a challenge for many attorneys. Litigants cannot preserve “everything” in a company at the first sign of litigation. The trick is preserving what is relevant. This becomes a question on the scope of discovery.

Could the Defendants in this case have copied a half hour before the incident and a half hour after? Sure. Some companies might do that. Others might not. Whether that is reasonable would turn on the facts of the case on whether that data needed to be preserved.

Texas lawyers know a few things about spoliation. First, it is based in evidence, opposed to a cause of action. Second, Judges should not let the facts over data preservation be presented to the jury to avoid any prejudicial effect. If there is an actual issue of spoliation, then the Court must determine the remedy before going to the jury.

Blogs I Like and the ABA Journal Blawg 100

There are many great blogs for attorneys. The ABA Journal is now accepting “Friends of the Blawg” briefs in the annual ABA Journal Blawg 100. Nominations can be submitted on the ABA Journal website.

Blog in metal

There are many great litigation blogs. Here are some of my favorites:

Craig Ball’s Ball in Your Court. Craig is a scholar, a gentleman, and an exceptional attorney.

Sharon D. Nelson’s Ride the Lightning. Virginia State Bar President Nelson provides daily eDiscovery news and is a must for anyone interested in eDiscovery.

Ralph Losey’s e-Discovery Team is another excellent source of eDiscovery best practices and summaries of recent cases.

My good friend Drew Lewis (along with Phillip Favro & Dean Gonsowski) writes Recommind’s eDiscovery blog Mind Over Matters.

There are many other great legal thought leaders, from Michael Arkfeld to Jackson Palmer. Everyone of them does a great service to the practice of law. I recommend checking them all out as you consider your nominations for the ABA Journal Blawg 100.

I would be honored to have your nominations for both Bow Tie Law and The Legal Geeks with Jessica Mederson, if you enjoy my blogs.

To file your “Friend of the Blawg” brief, please visit http://www.abajournal.com/blawgs/blawg100_submit/