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

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

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

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

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

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

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

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

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

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

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

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

Bow Tie Thoughts

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

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

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

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

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

 

Conferring on Keywords & A Musical Judge

You know someone is taking a hit when a judge works in references to Pink Floyd’s  “Sorrow” and Simon and Garfunkel’s “Sounds of Silence.” Sound the Division Bell, because there is a Bridge Over Troubled Water.


Magistrate Judge Jonathan Goodman did exactly that in Procaps S.A. v. Patheon Inc., 2014 U.S. Dist. LEXIS 35225 (S.D. Fla. Mar. 18, 2014) because of an attorney responding to opposing counsel’s emails with cryptic messages on search terms and their Spanish translations because of a party located in Columbia. Some messages were simply not answered. As such, a motion to compel was filed over search terms. At the hearing, the non-moving party represented they had been in contact with their custodians about search terms.

The short story of what happened is that lead attorney did not get any input on search terms from his clients’ custodians before the moving party filed their motion to compel. Procaps S.A., at 10-11.

Even though the attorney broke their silence over conferring on search terms, the Court ordered the following:

Nevertheless, to the extent that there is any doubt about whether this Court is imposing the requirement and to generate a ruling on which a fees award can be based, the Court grants Patheon’s motion and requires Procaps to have its counsel obtain search word input from all the ESI custodians. The Court may enter further orders on the search term methodology and/or the specifics of the search term list after receiving additional information from Procaps about the search term protocol.

Procaps S.A., at *14.

The Court awarded the prevailing party $3,750 in costs (down from $5000). Procaps S.A., at *16. The Court ordered the lead attorney to pay $1,000 of the award, because “his non-responsive and/or vague email responses triggered this discovery dispute.” Procaps S.A., at *17.  The Court further noted statements on the firm’s website about attorneys with eDiscovery experience who were involved in the case and “urged (though not required) to explore which other attorneys (besides lead trial counsel) caused, or helped  cause, this discovery motion and to determine whether those other attorneys (rather than the firm itself) should pay all or some of the $2,750 fees award now allocated for law firm responsibility (or some of the $1,000 awarded against lead trial counsel).” Procaps S.A., at *17-18.

Bow Tie Thoughts

I respect Jonathan Goodman’s command of the law and use of song references to make his point on an attorney’s silence in conferring over search terms.

Attorneys cannot be another brick in the wall of un-cooperation over Rule 26(f) conferences. eDiscovery requires parties to both 1) confer with the opposing side on the subject matter of the case and 2) conduct client/custodian interviews to determine how technology is used, terms of art, methods of communication and anything else relevant to determine “search terms.”

Discussing “search terms” is not dead because of “predictive coding.” Attorneys still have to know the subject matter of the case in order to use ANY type of advanced analytics so the analysis has content. Lawsuits are about specific issues which have to be defined in order for “technology assisted review,” “visual analytics” or any other form of data clustering to make sense. These topics must be discussed for in order to identify relevant ESI, so efforts are not lost on the dark side of the Moon.

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.

Triangulating Discovery Productions

Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).

ChartDividersThe Defendant in Banas had produced 225,000 documents in a rolling production through “triangulation.”

This methodology involved selecting subsets of employees likely to have relevant information, those who sent or received information, those who could have been involved in the case and those “most likely” to have relevant information. Banas at *4.

The Court stated this approach could have been reasonable, but two problems emerged: 1) The methodology was never discussed or agreed to with the Plaintiff; and 2) Multiple deponents did not have their email searched prior to their depositions. Banas at *4-5.

The Plaintiff also had a hard drive that contained ESI that was not produced by the Defendant. Id. 

The Court ordered the supplement search and production of ESI from the deponents whose ESI had not been searched. Banas at *6.

The Court stated that the Defendant’s search methodology was not unreasonable or designed to conceal information. Banas at *7. However, as the production was conducted on a rolling basis, the Plaintiff could not have been immediately aware of any production gaps. Banas at *6.

As such, supplemental discovery was reasonable.

The Court also highlighted the Northern District of California’s model order requiring parties to meet and confer over the search of ESI prior to responding to a discovery request. This is one of the first opinions to reference the model order. Following the model order is highly advisable for anyone in the Northern District of California. It also has very good best practices for any attorney to consider in a case with electronically stored information.

Bow Tie Thoughts

Identifying relevant custodians and their electronically stored information requires using technology and strategy. Many can feel like it is trying to find a teardrop in the ocean.  

Analyzing communication patterns, clustering email based on domain names or conducting searches based on date ranges and subject matter are just a handful of ways to identifying ESI that could support a parties claims or defenses. Running searches based on discovery requests is another.

I recently had a product demonstration of Kroll Ontrack’s eDiscovery.com Review. Below you can see the features of this product can help search for responsive ESI.

Banas v. Volcano Corp., also has a very important message about the meet and confer process. Parties really should discuss what information is subject to the lawsuit, relevant custodians and search methodologies. While I do not agree with the idea of discussing what tools parties should use, because it can cause unnecessary fighting, agreeing on how ESI will be identified certainly does not hurt between educated attorneys.

 

Mining for eDiscovery Sanctions

Some cases begin with such a “wow” introduction they have to be seen to be believed:

To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants’ resisted providing required information in initial disclosures and resisted previous discovery attempts by Plaintiff on an unfounded “we are not his employer” objection to discovery, but it has now come to light that Defendant did not even engage in a search for relevant electronically stored information (ESI) until April of this year—nearly ten months after this action was filed, and nearly two years after the EEOC investigation. And we are not talking about information that might have some tangential bearing on a lead to the discovery of admissible evidence, but emails that specifically discuss Plaintiff’s employment at the mine, his termination, and emails about Plaintiff which he has classified as “racist.” Surely these emails are relevant in an employment discrimination case alleging mistreatment based upon race, and should have been produced in response to Plaintiff’s first set of discovery requests propounded back in December of 2012. However, it is hard to produce something that Defendants have not even looked for. In fact, despite a litigation hold being placed on four email accounts—all human resource people at the mine or corporate office—in June 2011 when Plaintiff’s EEOC complaint was filed, counsel for Defendants did not request any ESI from Defendants’ IT department until April 2013. At or around that same time, Defendants placed holds on several other employees’ email accounts. Again, these were not people with some obtuse connection to the case, but included the people that actually fired Plaintiff, including the superintendent at the mine that signed the firing paper.

The logical question is: why was this not done? The only proffer by Defendants is that there was a minor miscommunication between counsel and a human resource (HR) manager, who they allege was responsible for collecting materials responsive to Plaintiff’s discovery requests. This miscommunication, as stated at the hearing on Plaintiff’s motion for sanctions, is that counsel did not specifically tell the HR manager to gather emails. Rather, counsel operated under the assumption that emails would be searched in his directive to find responsive materials. In addition to this failure to search for responsive ESI, Defendants operated a suspicious course while other discovery was playing out. For instance, during a May deposition of the aforementioned HR manager, counsel for Plaintiff asked whether there were any emails exchanged regarding Plaintiff. In response, the witness stated that there were emails but they were given to counsel. Counsel stood silent and the deposition continued. This establishes several things: first, Defendants knew there were relevant emails; second, Defendants had those emails in their possession; third, those emails were not given to Plaintiff, despite Defendants knowing they existed and having them in their possession; and finally, Defendants allowed the deposition to continue without Plaintiff having the benefit of the emails to question the witness about. This is just one instance of Defendants allowing a deposition to take place where there were, what the Court will classify as highly relevant documents, without giving those documents to Plaintiff to use at the deposition.

Clay v. Consol Pa. Coal Co., LLC, 2013 U.S. Dist. LEXIS 129809, 1-4 (N.D. W. Va. Aug. 13, 2013).

You are in trouble when the Judge makes any text bold in an opinion.

The Plaintiff brought a sanctions motion for the following:

(1) Default judgment on liability;

(2) All reasonable expenses associated with the prior depositions of six employees of Defendants;

(3) Permission to redepose these six employees at Defendants’ expense;

(4) Permission to depose seven additional employees;

(5) Exclusion of Plaintiff’s deposition at trial or in any motion;

(6) Denial of any effort to prolong this action;

(7) Precluding Defendants from conducting any further discovery; and

(8) Reasonable expenses associated with the instant motion.

Clay, at *7.

How to Go Mining for Sanctions 

MiningGearThe Federal Rules of Civil Procedure provide several options for sanctioning a party for discovery misconduct.

Pursuant to Federal Rule of Civil Procedure 37(c), a party can be sanctioned if they “fail to provide information or identify a witness as required by Rule 26(a) or (e) . . . the court, on motion and after giving an opportunity to be heard, can impose sanctions ranging from reasonable expenses, including attorney’s fees, to rendering default judgment.” Clay, at *8, citing Fed. R. Civ. P. 37(c)(1)(A)-(C).

A party must also supplement their Rule 26(a) initial disclosures or a response to a discovery request pursuant to Rule 26(e) “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” Clay, at *8-9, Fed. R. Civ. P. 26(e)(1).

Demonstrating a Rule 26(g) violation is like striking gold. Or a pocket of methane if you are the producing party.

Rule 26(g) requires attorneys to make a reasonable inquiry before answering or objecting to discovery requests. Clay, at *9. If there has been an improper certification, the Court “must impose an appropriate sanction,” which “may include an order to pay the reasonable expenses, including attorney’s fees.” Clay, at *9, citing Fed. R. Civ. P. 26(g)(3).

Additionally, if a Court finds that a party “impedes, delays, or frustrates the fair examination” of a deponent during a deposition, the court “may impose an appropriate sanction,” including the reasonable expenses and attorney’s fees incurred. Clay, at *9, citing Fed. R. Civ. P. 30(d)(2).

Digging for Default 

RockofCoalCourts apply a four-part test to issue a default judgment:

 (1) whether the noncomplying party acted in bad faith;

(2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce;

(3) the need for deterrence of the particular sort of noncompliance; and

(4) the effectiveness of less drastic sanctions.

Clay, at *10-11, citing Mutual Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989).

The Court held this was not the “flagrant case where this harshest sanction should be imposed,” because the Court could not concluded that the Defendants acted in “bad faith and callous disregard for the authority of the district court and the Rules.”  Clay, at *11.

The issue with the Defendants was the fact they did not begin to search discovery until the Plaintiffs were about to file their second motion to compel. Clay, at *11-12. The motions to compel effectively compelled the party to comply with their discovery obligations. While this is not acceptable conduct, it is different than intentionally withholding unfavorable discovery or disobeying court orders. Clay, at *11.

 Striking Deposition Gold

StrikingGoldThe Court held that allowing the first six deponents to testify without providing discovery, when Defense counsel knew such discovery existed, impeded, delayed and frustrated the fair examination of the deponent. Sanctions were justified pursuant to Federal Rule of Civil Procedure 30(d)(2). Clay, at *15.

The Court ordered the re-examination of the first six deponents with all reasonable expenses to be paid by the Defendant, including five hours of attorney preparation time. Clay, at *15.

The Court also ordered the Defendants to pay all reasonable expenses from the prior depositions. Clay, at *15-16.

The Court also extended the deposition limit allowing another seven depositions, but did not allow costs, because the other deponents were either included in initial disclosures or the Plaintiff knew who were key players in the case. Id. 

The Mother load of Costs

The Court held the Plaintiff was entitled to reasonable expenses, including attorneys’ fees, for the sanctions motion. The Plaintiff had to submit an affidavit defining their costs for the Court. Clay, at *17-18.

Bow Tie Thoughts

Lawyers cannot ignore electronically stored information. I have met many attorneys who take a profoundly dangerous view that collecting ESI from their client is optional.

Here are hard truths about electronically stored information:

Your clients create ESI, whether it is a personal injury case, patent or a contract dispute;

ESI must be identified, preserved and searched to respond to discovery requests;

You cannot practice law by simply ignoring electronically stored information;

You cannot make ESI “go away” by yelling at it, intimidation or threat of Court order.

Electronically stored information will be present in virtually all civil litigation. You simply cannot get around it. Trying to ignore ethical and discovery obligations can end with anything from sanctions to violating your duty of competency to your client.

Attorneys must meet their legal obligations by understanding the interaction of the law to the technical solutions available to manage ESI. This requires learning how your client interacts with technology and the methodologies to capture relevant data for review and production.

What options are available to learn? My friend Michael Arkfeld has a solid online course and books that help. Craig Ball’s blog is an excellent resource. There are many other options. There are many industry conference as well. Regardless of what you choose, I encourage lawyers to be proactive. It is better to be in control of eDiscovery and not subject to sanctions motions that jeopardize your bar card.

Proving the Negative in Discovery Productions

confusedA requesting party has a very difficult problem when a producing party has made a very small production that the requesting party believes is deficient.

This situation quickly turns into the requesting party trying to prove a negative to the Court that a production is inadequate, without any evidence to support the argument.

However, just because a requesting party cannot prove a production is inadequate, does not mean the production is adequate.

A Court was faced with this issue in Am. Home Assur. Co. v. Greater Omaha Packing Co. The requesting party argued that the production of only 25 email messages in a case where discovery started in July 2012 was inadequate. However, the Court stated it “cannot compel the production of information that does not exist.” Am. Home Assur. Co. v. Greater Omaha Packing Co., 2013 U.S. Dist. LEXIS 129638, at *17  (D. Neb. Sept. 11, 2013).

The Court ordered the following as a solution:

Discovery on this matter has been ongoing since July of 2012. It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.

Am. Home Assur. Co., at *17-18.

Bow Tie Thoughts

This is a hard issue for any Judge and requesting party. I believe the Court reached the best solution with what was known by the Court and parties.  Moreover, the Court knew when to stop with its order.

Will a small production always result in a producing party being compelled to disclosed what it searched, what it intends to search and search terms? Most likely no, but it is a good alternative to forcing a requesting party to prove a negative.

Meet & Confer at 10 Paces

role_play_thmThere are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Two crossed ancient pistols isolated on white

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.

Clawback Agreements to Eliminate the Burden of Privilege Review

F14DiveI am gonna to hit the brakes, he’ll fly right by me.

Maverick, Top Gun

You’re gonna do what?

Merlin, Top Gun

Attorneys feel compelled by their duty of competency to their clients to have eyes on every document that might be privileged.

SurprisedWoman

Given cases such as J-M Manufacturing it is easy to see why attorneys are concerned about privilege review in large document review cases.

If an associate attorney were to tell a partner she could rely on a clawback agreement and not conduct privilege review, it is a safe bet the partner would respond as Merlin did to Maverick in Top Gun.

In re Coventry Healthcare, Inc. v. This Document Relates involved issues of undue burden in producing electronically stored information. The Defendants argued that the Plaintiff’s proposed search terms produced “hits” of nearly 200,000. The Defendants claimed the estimated cost to process, host and review the data for responsiveness and privilege was approximately $388,000. In re Coventry Healthcare, Inc. v. This Document Relates, 2013 U.S. Dist. LEXIS 39050, at *14 (D. Md. Mar. 21, 2013). Accordingly, the Defendants sought relief under the proportionality principles of Rule 26(b)(2)(C)(iii).

The parties to their credit had negotiated over search terms to ease the burden on the Defendants (and ultimately themselves in what the Plaintiffs would have to review).

The Court made what some would consider a surprising statement: [A] clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. In re Coventry Healthcare, Inc., at *16. As such, the Defendants failed to show undue burden in producing electronically stored information.

Crusher Claw

The Court’s ruling is not the first time such an order was given. As stated in footnote 6, former Magistrate Judge (now District Court Judge) Paul Grimm found that “the more practical approach is to avoid the necessity of an expensive and time-consuming privilege review by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document.” In re Coventry Healthcare, Inc., at 14-15, fn 6, citing Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

The Court granted the Plaintiff’s motion to compel and invited the Defendants to confer with the Plaintiffs on a clawback order if they wanted one.

Bow Tie Thoughts

There are several thought leaders who have argued that the cost of privilege review can be eliminated with protective orders and clawback agreements. While having both is definitely a good idea, many attorneys feel terrified at not conducting some sort of privilege review.

One option to privilege review is to leverage technology-assisted review in identifying potentially privileged ESI. I would still always recommend a clawback agreement and potentially a protective order, depending on the subject matter of the ESI. However, TAR such as predictive coding could be used to identify potentially privileged material. Generally speaking, many attorneys have an idea what sort of communications or files will be protected by a privilege. Leveraging technology to identify attorney-client communications, intellectual property, or personal identifiable information can enable the data to be organized based on both privilege and responsiveness. This allows the attorneys to review data that is potentially privilege, if they are so inclined to have eyes on such ESI.

Drop-by-Drop Water Torture Productions

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States:

At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents. The court now enters a preclusion order prohibiting the United States from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced by the date of compliance with this order.

Botell v. United States, 2012 U.S. Dist. LEXIS 134265, 15-16 (E.D. Cal. Sept. 18, 2012).

Botell v. United States is a wrongful death and personal injury case involving a minor injured and another killed at a National Park. The Government produced over 7,000 pages of documents, but there was a “a glaring lack of production of emails from defendant’s agents and employees.” Botell, at *11-13. Moreover, the total number of custodians produced by the Defendant totaled one.

The Plaintiffs argued five other relevant custodians’ emails needed to be produced, because the custodians were referenced in the already produced ESI. Botell, at *11.

The Defendants produced one declaration by the Chief Ranger at the park, which explained his efforts to find responsive email.

These efforts included “searching” the office and network drives, and the Ranger’s coordination with officials and IT personnel at another National Park to search another custodian’s computer. The declaration was silent on any search for emails by the other custodians. Botell, at *11-12.

Another declaration curtly explained the back-up policy for Lotus Notes emails as follows: “[B]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.” Botell, at *12.

The Court ordered the Defendants to provide a declaration explaining the searches conducted to locate physical and electronic copies of responsive emails by the five custodians. The Court specifically required the following:

The declaration shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.

Botell, at *12-13.

Bow Tie Thoughts

Nothing goes for the jugular like a preclusion order for failing to produce discovery. Botell is a powerful example of the dangers of what appeared to be “do it yourself” collection. While it was not outright stated the Defendant did not have an eDiscovery collection expert, it sure sounds that way from the context of the declarations.

One would hope when a large organization has a triggering event for a lawsuit, an effective litigation hold is enacted. Many of today’s records information management systems have the ability to electronically sequester a specific custodian’s email and ESI with a keystroke. Additionally, much of this technology has Early Case Assessment and data reduction features that can identify the relevant information for attorneys to review.

An organization should either have professionals trained in the search and preservation of ESI or retain outside professionals to competently preserve ESI. The steps taken to search and identify responsive ESI must be documented and should, at a minimum, explain the search methodology; technology used; data sources searched; search results; possible exclusions or exotic files; and anything else relevant to explain to a judge how ESI was searched.

A requesting party should not have to blink “torture” in Morse Code for a judge to stop a party neglecting their discovery obligations. An attorney’s duty of competency should compel their preservation obligations are met with those trained to effectively find and produce responsive discovery.

You Do Have to Look for Discovery in Your Possession

A Producing Party (the Defendant) argued against searching for responsive electronically stored information, claiming “that the mere fact an employee might have discoverable information or relevant knowledge does not necessarily mean she possesses relevant documents.” McNearney v. Wash. Dep’t of Corr., 2012 U.S. Dist. LEXIS 108386, 14-16 (W.D. Wash. Aug. 1, 2012).

Negative inductive reasoning aside, Federal Rule of Civil Procedure Rule 34 requires a party “to produce requested documents if they are within his ‘possession, custody, or control.’” McNearney, at *14, citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 165 n.6 (1980) (Stevens, J., concurring in part and dissenting in part).

The Producing Party did not challenge that it failed to search for responsive electronically stored information from “numerous employees identified as likely having discoverable [information],” but took the position that just because it was possible the custodians had relevant information, did not mean they actually had the relevant information.  McNearney, at *14.

The Court agreed with the logic, but that did not give the Producing Party a free pass on its duty to make a reasonable inquiry, especially considering the fact the Producing Party identified the employee as likely having relevant information. Id.

Further causing problems for the production, was a difference in email messages produced by the Defendant and two other Defense custodians, suggesting that there had not been a reasonable search for email by one of the Defense custodians. McNearney, at *14-15.

The Producing Party also conceded that it did not produce email attachments and that its search scope was narrower than the Plaintiff’s discovery requests. McNearney, at *15.

The Court held the following on the Defendant’s search:

Defendant’s production of some documents in response to RFP No. 5 does not satisfy its duty to make a reasonable search for and produce all responsive documents in its possession, custody, or control. Despite its original objection that RFP No. 5 was unduly burdensome because it was “a trap for Defendants,” DOC has not demonstrated that conducting a thorough search for responsive ESI would pose an undue burden or cost, as required in responding to a motion to compel. Fed. R. Civ. P. 26(b)(2)(B).

McNearney, at *15-16 (Emphasis added).

Bow Tie Thoughts

A party must demonstrate undue burden to limit discovery. This does not include an argument “that just because there might be something relevant, does not mean there is something relevant.”  While that is true in a logical discussion during a philosophy class, the Federal Rules of Civil Procedure are not an exercise in metaphysical nihilism to circumvent a party’s duty to conduct a reasonable search for responsive ESI to a discovery request.

The Federal Rules of Civil Procedure require ESI to be produced as it is ordinarily maintained or in a reasonably useable form. By the plain language of “ordinarily maintained,” a producing party cannot break the parent-child relationship between email messages and their attachments (or Tweets and Hyperlinks or text messages with photos).  Additionally, a production that breaks the parent-child relationship is not in a “reasonably useable form,” since searching for an attachment to its corresponding message is like re-unitizing a document that has had its staples removed and the pages shuffled with 1,000 other pages.

The technology to collect, search and produce electronically stored information are well established now after a decade of being available. These products are common services offered by eDiscovery service providers and many law firms have brought these technologies in house. While electronic discovery has many challenges, there are solutions available to these challenges that are affordable.