Native Files & Protective Orders

What do parties do when they anticipate documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in a case? Agreeing to a protective order is a the solution the parties sought in Farstone Tech., Inc. v. Apple Inc.

ConfidentialPaperClip

The protective order stated the following on native files:

Where electronic files and documents are produced in native electronic format, such electronic files and documents shall be designated for protection under this Order by appending to the file names or designators information indicating whether the file contains “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or shall use any other reasonable method for so designating Protected Materials produced in electronic format. When electronic files or documents are printed for use at deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. No one shall seek to use in this litigation a .tiff, .pdf or other image format version of a document produced in native file format without first (1) providing a copy of the image format version to the Producing Party so that the Producing Party can review the image to ensure that no information has been altered, and (2) obtaining the consent of the Producing Party, which consent shall not be unreasonably withheld.

Farstone Tech., Inc. v. Apple Inc., 2014 U.S. Dist. LEXIS 89604, 10-12 (C.D. Cal. June 24, 2014).

The section of depositions demonstrated a lot of forethought on behalf of the attorneys who prepared the stipulated protective order (or Judge) with the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. The only way this could be stronger would be the legend also including a MD5 hash value for authentication (which it potentially would include) and the system file pathway.

The final sentence on allowing review of a static image to the opposing side for review also addresses a concern many attorneys have over native files converted to static images. There is the obvious method of reading the document to determine it is “identical,” but using near-de-duplication technology to verify the text is an exact match, assuming the static image is a searchable PDF. If it is a TIFF, then conducting a line by line comparison is the best option.

My compliments to the attorneys who drafted the stipulated protective. I hope the litigation avoids any discovery disputes and focuses on the merits.

Stuck in the Predictive Coding Pipeline

ExxonMobil Pipeline had a problem in discovery: their discovery responses were overdue. The requests for production was served in November 2013 and due after one extension in January 2014. The Plaintiffs rightly brought a motion to compel.

The Defendants had enough discovery to give most eDiscovery attorneys a migraine with a nosebleed: 16 separate lawsuits, with 165 discovery requests in one case, a total of 392 requests in all the related cases, and 83 custodians with approximately 2.7 million electronic documents. Other discovery going back to 1988 had over 63,000 paper documents that were scanned and to be searched with keywords. Additionally, there were approximately 630,000-800,000 documents that had to be reviewed for responsiveness, confidentiality, and privilege. The Defendants had produced 53,253 documents consisting of over 191,994 pages. United States v. ExxonMobil Pipeline Co., 2014 U.S. Dist. LEXIS 81607, 5-8 (E.D. Ark. June 9, 2014).

pipeline

The Defendants suggested using predictive coding in light of the large volume of discovery, but the Plaintiff the United States did not agree with the use of predictive coding (at least since the filing of the motions). ExxonMobil Pipeline, at *6. Moreover, the parties did not seek relief from the Court on the use of predictive coding, other than to order the parties meet and confer. ExxonMobil Pipeline, at *6-7.

The Defendants explained that using traditional review with 50 attorneys that document review could be completed by the end of June 24 and production by the end of August 2014. ExxonMobil Pipeline, at *6.

The United States disagreed with the Defendants assumption of lawyers only reviewing 250 documents/files a day. Moreover, the Defendants did not raise concerns about document review when they entered an agreed upon scheduling order in October 2013. ExxonMobil Pipeline, at *6-7.

The Court acknowledged that the Defendants had a large volume of discovery to review. Moreover, it was unclear if the parties had agreed to a review methodology before the Court issued its order. Regardless, the Court ordered the Defendants to complete their review and production by July 10, 2014, absent good cause. ExxonMobil Pipeline, at *7-8.

Bow Tie Thoughts

Most attorneys do not think about document review strategies at the beginning of a case. They should. Discovery is the backbone of civil litigation. Unless you know the information you have to review, strategies to maximize efficiency, and reviewing for claims or defenses, document review can be a nightmare experience.

This case does not go into why the Defendants sought agreement from the Plaintiff on the use of predictive coding. I do not agree with that strategy, unless a specific review protocol was ordered at the Rule 16 conference that the producing party wanted to change.

The issue with a document production is whether or not the production is adequate. Lawyers should agree to the subject matter of the case, custodians, data ranges, and other objective information that goes to the merits of the lawsuit. When lawyers start asking each other for permission on whether they can use predictive coding, visual analytics, clustering, email threading, or any other technology, civil litigation becomes uncivil. Case in point: the Plaintiffs argued the Defendants could review more than 250 documents a day in this case. Such disputes turn into an academic fight over how much lawyers can read and analyze in a 9-hour workday. The end result of such motion practice would be a Judge ordering lawyers to read faster.

My advice is to focus on the merits and not derail the case with a fight over what review technology can be used. Fight over whether the production is adequate, not what whether you can use predictive coding.

Arkansas Bar Association Annual Meeting

I had the honor of speaking at the 2014 Arkansas State Bar Annual meeting on eDiscovery Ethics and new trends in eDiscovery in Hot Springs, Arkansas. I had an amazing time and greatly appreciated the hospitality of the Arkansas Bar Association.

Arkansas_Ethics-Presentation

My new Ethics seminar is a Star Trek themed presentation based on the Ingenuity 12 LLC v Doe case, that also covered the evolving rules of attorney and judicial ethics on social media; how to conduct a reasonable inquiry with ESI; the duty of candor to the Court; compliance with Rule 11 in an age of Terabytes; Production obligations under FRCP 26(g); and the duty of confidentiality and computer security. It was also a ton of fun.

MirrorSpock-Agonizer

My two sessions were attended by 150-200 attorneys in the convention center exhibit hall. We also covered the proposed California ethics opinion on eDiscovery competency, which will require attorneys to be competent in the following areas:

Initially assess eDiscovery needs and issues, if any;

Implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;

Analyze and understand a client’s ESI systems and storage;

Identify custodians of relevant ESI;

Perform appropriate searches;

Collect responsive ESI in a manner that preserves the integrity of that ESI;

Advise the client as to available options for collection and preservation of ESI;

Engage in competent and meaningful meet and confer with opposing counsel concerning an eDiscovery plan; and

Produce responsive ESI in a recognized and appropriate manner.

Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) (State Bar of California).

Khan-FormofProduction

This proposed opinion has teeth, because lawyers who are not competent in eDiscovery should either learn how to handle eDiscovery issues, associate with those who are, which can be retaining an expert, or decline representation. Given the fact virtually all civil litigation has data of some kind in it, the third option could end careers.

ESI-Tribbles

“Tweeting Discovery,” my second session, explored recent social media/eDiscovery issues. The material also covered two of the new and proposed statutes limiting the use of Drones by law enforcement. The Drone limitations would prohibit law enforcement to use Drones to gather evidence, images, sounds, or data. The key exceptions would be in a high risk of terrorist attack, finding a mission person, preventing imminent loss of life, or a search warrant (limited in scope to only person subject to the search), and data retention rules. See, 2013 ILL. ALS 569 and 2013 Bill Text NC H.B. 312.

I want to thank the Arkansas Bar Association for their hospitality. I had a corner suite in the Arlington Hotel, which included a Washington, DC, theme, complete with a large sitting room and conference room. Truly a lot of fun. I even took a moment to enjoy the suite and record this promo video for The Legal Geeks submission to the Geekie Awards:

 

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.