Don’t Forget to Produce Email Attachments

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A defendant law firm in a fee dispute were ordered to produce specific email communications. The law firm produced email messages in PDF format without attachments. The Defendants claimed in a meet and confer they could not produce attachments from the server, but did not explain why. Skepnek v. Roper & Twardowsky, LLC, 2014 U.S. Dist. LEXIS 11894, at *3-4 (D. Kan. Jan. 27, 2014)

LeslieCrystal_Really_EmailIt is never good to have a Judge state, “It is unclear why defendants claim that it is impossible to include every attachment to the produced e-mails but somehow, they are able to produce specific attachments upon request.” Skepnek, at *4.

The Defendants attempted to make the case about the Plaintiffs not stating the form of production in their request.

The Judge did not take the bait and focused on the real issue in the case: the failure to produce the responsive files. Skepnek, at *6.

The Court ordered the production of the attachments, explaining its order as follows:

Defendants offer no excuse for their failure to produce responsive documents except that plaintiffs never requested the documents in native format. Plaintiffs simply want the documents that the court ordered defendants to produce, regardless of format. Because plaintiffs failed to specify a form for producing the electronically stored e-mails and attachments, defendants were required under Rule 34(b)(2)(E)(ii) either to produce the e-mails and attachments in the form (1) in which they are ordinarily maintained, or (2) “in a reasonably usable form.” Defendants failed to produce the attachments at all. Defendants also failed to show PDF format is the form in which their e-mails and attachments are ordinarily maintained.

Skepnek, at *6.

Bow Tie Thoughts

Lawyers often get into trouble with the production of electronically stored information because they do not retain anyone to handle the collection, processing or production of data. Many think their client’s IT staff can somehow “just do it” and avoid the cost of hiring a service provider.

Problem with that logic: You’re doing it wrong.

That is a lot like thinking an auto mechanic charges too much for a break job, so just have your 10 year old do it instead. Since the kid made a great Pinewood Derby car, he should be able to fix the Audi. What could possibly go wrong?

The duty of competency requires lawyers to hire experts to solve technical issues. The collection of ESI and processing are two such areas. Moreover, the technology is constantly advancing. I have watched very impressive product demonstrations of many software applications. Producing email with attachments is something service providers have been doing for over a decade. There are even YouTube videos showing how the technology works. There really is not an excuse from a technological perspective on why email was not produced with attachments in native file format.

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.

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.

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.

Thoughts on the State Mock Trial Tournament & Being the Outgoing Chairman

I have served as the chairman of the SCCBA Law Related Education Committee for the last two years. Our main area of responsibility is running the county mock trial tournament in February for over 400 students. These are the closing days of my two terms. I have been fairly reflective the last few days.

How it Began

I joined the local bar association’s LRE committee in 2009. I started coaching one of the teams four years ago, after learning the students had been competing without a coach. I was asked to chair the committee after a friend stepped down as chairman.

Where We Are Today

We have had several good years of high student participation. We also have been very fortunate to have law firms and eDiscovery service providers sponsor the tournament.

eDiscovery is more than “big data” or “predictive coding.” The professionals at those companies have demonstrated a vested interest in the community. One service provider that asked to remain anonymous has donated the printing of 50 tabulated binders for the county judges each year. This is not without cost in both material or time. Their reasons for helping is because, “it is the right thing to do.”

Access Data Group has sponsored the first sponsor of tournament for the last three years. They do so without hesitation because they believe in providing opportunities for youth.

Nuix also is sponsoring the county tournament this year. It took one simple request and the reply was “of course.”

Providing opportunities for youth to learn about the legal system is a worthwhile cause. I am grateful to my friends who believe in that cause, because without them, putting on a program for over 400 students would be a lot harder.

Looking Ahead

I have been privileged to watch students grow up since their freshman year of high school.  It is rewarding to see a youth who is quiet echo the spirit of Clarence Darrow in a powerful cross-examination. I am optimistic they will have a very good tournament this February.

We have graduates in college now preparing for the LSAT. I am confident they will be excellent trial attorneys before 2020.

The “Final” Days

Santa Clara County is hosting the California State Mock Trial Tournament this March. We will have the winning teams from all of the counties across the state meet in San Jose for what will be an excellent tournament.

We are $600 short of our $10,000 goal for the state tournament. If you would like to help us close the gap, you can donate directly http://www.crf-usa.org/mock-trial-program/support-mock-trial. Contributions of $250 or more get you or your firm recognized on the web site and written program.  For $500 or more, a court room will be named after the donor for the duration of the State Finals.

We will also need scoring attorneys for both the county tournament and the state finals. If interested in volunteering, you can sign up on the SCCBA website.

Guess What? Cooperation Does Not Mean Privilege or Relevancy Are Dead

Here is the big lesson from the latest Biomet opinion over predictive coding:

The Steering Committee wants the whole seed set Biomet used for the algorithm’s initial training. That request reaches well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents used to tell the algorithm what not to find. That the Steering Committee has no right to discover irrelevant or privileged documents seems self-evident.

United States District Court Judge Robert Miller, In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., 2013 U.S. Dist. LEXIS 172570, at *3 (D. Ind. 2013).

One word: Good.

Cooperation does not mean attorney work product is eviscerated when discussing predictive coding. Moreover, if ESI is not relevant, why drive up discovery costs in reviewing it?  Furthermore, Federal Rule of Civil Procedure Rule 26(b)(1) does not allow a requesting party to find out how the producing party used ESI before its production. Biomet, at *4.

The opinion goes on to discuss Biomet’s position that it had produced all discoverable documents to the Steering Committee. However, this is where Judge Miller made a judicial warning: Biomet did not need to identify its seed set, but the “unexplained lack of cooperation in discovery can lead a court to question why the uncooperative party is hiding something, and such questions can affect the exercise of discretion.” Biomet, at *5-6.

The Court held it would not order Biomet to disclose its seed set, but did “urge” them to “re-think its refusal.” Biomet, at *6.

Bow Tie Thoughts

There is no good answer to the issue in this case. Technology issues should be worked out by experts in a non-combative way when it comes to production formats, scope of data, date ranges, custodians and other objective factors in conducting a search. Courts really do not want to get sucked into it. However, one issue since Da Silva Moore v Publicis Groupe & MSL Group is the idea that parties need to have transparent process that both sides agree to for predictive coding. I do not think the Federal Rules of Civil Procedure require such disclosures at all. Moreover, it intrudes into attorney work product.

What is the answer? I would offer a requesting party to demonstrate there is a production gap or otherwise show how the production is deficient. This easily escalates into a quagmire over discovery about discovery. No body wins when that happens.

As for a producing party, I would not take a position that could incur the wrath of a Court if the requesting party later demonstrates a production was deficient.

Who Knew What When About the Form of Production

Magistrate Judge William Hussmann put a new spin on form of production analysis in Crissen v. Gupta: What form was discovery in and when was it in that form?

WhenDidYouKnowAboutNativeFiles

The Plaintiff brought a motion for the production of Word documents in native file format. The Producing Party had produced the files as non-searchable PDF’s. The Plaintiff argued the PDF’s lacked the metadata that showed who created the Word documents, revisions and when the files were printed. Crissen v. Gupta, 2013 U.S. Dist. LEXIS 159534, at *20 (S.D. Ind. Nov. 7, 2013).

The Producing Party countered that the Plaintiff did not state the form of production in their request and that they did not have to produce ESI in more than one form pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(iii).  Crissen at *20-21.

The Court explained the Producing Party was partially correct in their reading of Rule 34. However, the “full story” of Rule 34 states  that “[a] party must produce documents as they are kept in the usual course of business” and that, “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Crissen at *21, citing Fed. R. Civ. P. 34(b)(2)(E)(i), (ii).

The Court further cited to the Advisory Committee notes, which states:

[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Crissen at *21-22, citing Fed. R. Civ. P. 34, Advisory Comm. Notes (2006 Amends.).

Driving the point home, the Court explained that a requesting party’s obligation to specify a format for production is superseded by a responding party’s obligation to refrain from converting “any of its electronically stored information to a different format that would make it more difficult or burdensome for [the requesting party] to use.” Crissen at *22, referencing Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069, at *3 (S.D. Ind. July 27, 2009).

This is where things took an usual turn: The Court did not know from the record whether the Producing Party had the responsive discovery in native file format. Crissen at *23.

The Court explained that if the Producing Party had only PDFs before being served with the discovery request, they had met their production duties under Fed. R. Civ. P. 34(b)(2)(E)(iii). However, if the Producing Party had them in Word format prior to the discovery request, then the discovery had to be re-produced in native file format. Id. 

Bow Tie Thoughts

It is assumed a producing party has discovery in its native application. There can be exceptions to this assumption. For example, one party to a contract might only have the final version of the contract as a non-searchable PDF. Even then, the PDF’s would likely be an attachment to an email message.

It is highly unlikely a business is converting all business related ESI to PDFs and then destroying the native files as part of a data retention policy. It is conceptually possible, but extremely unlikely anyone would do business like that.

“We Don’t Want To” is Not an Objection

There is a strong trend in case law for 2013: Judges understand the form of production.

ThinkingAboutBates_2902

Magistrate Judge Donna Martinez brought home this point in Saliga v. Chemtura Corp.

The Plaintiff requested ESI in native file format. The Defendant objected. However, the objection was not based on undue burden or proportionality, but that there was “no basis or need” to produce in native format. Moreover, the Defendant argued native file productions prevented Bates numbering or confidential markings in deposition or motion practice. Saliga v. Chemtura Corp., 2013 U.S. Dist. LEXIS 167019, 3-7 (D. Conn. Nov. 25, 2013).

The Court held: The rule says that the requesting party may specify the “form . . . in which [ESI] is to be produced,” Fed. R. Civ. P. 34(b)(1)(C), and the defendant has not shown compelling reasons why it cannot produce the information in the format requested by the plaintiff. Accordingly, the court will grant the plaintiff’s request for native format. Saliga, at *6.

Bow Tie Thoughts

Saliga v. Chemtura Corp. is an excellent discussion of the Federal Rules of Civil Procedure and accompanying case law on the form of production. Judge Martinez is thorough and to the point on the requesting party controls the form of production, subject to an objection from the producing party.

As I have argued before, fear about Bates numbering is not a valid objection. ESI should be maintained in databases with control numbers, Docids, or other ways to sort and organize data. Those who make litigation review software are very good at organizing and searching ESI. Static images reduces the available search features a party can use to analyze ESI.

It is important to understand the difference between reviewing ESI and using ESI at a deposition or in motion practice. Just because you will have a deposition does not mean ALL ESI should be converted to static images for a production. That only reduces the ability to use search technology and likely will drive up the time to conduct review.

Parties should agree on how ESI can be used in deposition or motion practice, whether it is projected natively, or converted to static images or even printed with the MD5 hash value in the footer and an exhibit number. There are several other options as well, but this is an excellent topic for the Rule 26(f) conference.

Objections cannot be hypothetical. If there is a native file that requires redaction of confidential information, specifically object on those grounds to the responsive discovery with the specific objection.

Augmented Reality & Computer Forensics: Notes from PFIC 2013

The 6th Paraben Computer Forensic Conference was held in Snowbird, Utah November 13-15, 2013.

I love PFIC because it is a content driven show.  Amber Schroader, CEO of Paraben Corporation, kicked off the lecture track of the conference by addressing computer forensics in mobile devices and BYOD.

The next generation of employees will have no idea life would be like without the Internet, will ignore BYOD policies and have a different view of personal privacy from anyone born before 2000.

They will also never use a mouse.

Amber highlighted the challenges in mobile forensics. There are currently 1.8 million different smartphones. There is a new Android operating system every few months. And the kicker: over 70% of data on a Windows mobile device are in cloud storage. The device is a handheld portal to a cloud.

My mind instantly spun to the Stored Communication Act and jumping through rings of fire in issuing third-party subpoenas in order to get data, and how to avoid having to do that.

Amber’s solution to this challenge would surprise a few people: Install an app on the Window’s device to extract the cloud based data in a forensically sound manner. This would surprise those who are used to saying “spoliation” because you are changing the device. While that would be true with most computers and phones, preserving cloud-based discovery requires different preservation techniques.

PFIC_5611Greg Kipper spoke on the “future,” highlighting how technology will change ways we live. One provocative idea was robotic elderly care for the Baby Bombers.

Naturally thinking about liability, there could be some strange product liability and elder abuse cases with data from a “Care-bot” in the not-to-distant future.

Greg also discussed augmented reality. AR can have applications from heads-up displays in cars to a darker vision of the future. Greg closed his presented with the following video:

I really hope that never becomes reality.

I spoke on the taxation of eDiscovery costs. This was a new presentation that highlighted the challenges in understanding the state of the law, successful arguments in some jurisdictions and unsuccessful arguments in others.

I was very happy to have The Legal Geeks (my blog with Jessica Mederson) be the press sponsor of the PFIC Casino Night. The theme was Get Your Geek On. With the 50th Anniversary of Doctor Who on November 23, I had no trouble with the theme.

PFIC_5736

I want to commend Paraben on another great PFIC. This was the first show that had activities planned for families, with many attendees bringing their spouses and children to the conference. Job well done on the sessions, conference and being family friendly.