Guest Post on Everlaw: Is An Attorney Responsible for Manually Reviewing Discovery Before Production?

Review-TeamI prepared a guest post for Everlaw’s blog on an attorney’s ethical duty to follow a client’s instruction to manually review documents prior to production.

Is expert testimony required to show a lawyer breached their standard of care or is this issue one a jury can decide on their own?

Check out the case summary and tips on document review at Everlaw:

What is an attorney’s Duty of Loyalty to review discovery documents before producing them to an opposing party? That issue recently arose in a summary judgment battle between a client and his former attorneys.

The Case:

The client claimed that the law firm had committed malpractice because the attorneys failed to review discovery responses before production to the opposing party – after being directed to do so by their client. Things really went wrong when the client was hit with sanctions, and the law firm denied knowledge of certain documents in court. Price Waicukauski & Riley v. Murray, 2014 U.S. Dist. LEXIS 130680 (S.D. Ind.Sept. 18, 2014).

 Continue reading at Is An Attorney Responsible for Manually Reviewing Documents?

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