Meet & Confer at 10 Paces

There 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.

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

I 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.

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 involves issued 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.

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.

No Request, No Motion to Compel

The Plaintiff in ADT Sec. Servs. v. Pinancle Sec., LLC, objected to a Magistrate Judge’s denial to a motion to compel to redo the Defendant’s search for responsive ESI.

The Plaintiff’s argued the Defendants failed to search individual employee computers and back-up tapes.

Additionally, the Plaintiff’s highlighted a considerable disparity between the volume of ESI produced by the Plaintiff verse the Defendant. ADT Sec. Servs. v. Pinancle Sec., LLC, 2012 U.S. Dist. LEXIS 98948 (N.D. Ill. July 11, 2012).

As such (in the Plaintiff’s argument), the disparity demonstrated the Defendant did not produce enough ESI, thus requiring additional searches.

Discovery Order to Conduct Additional Searches

The Magistrate Judge did not find any “legitimate basis for requiring Pinnacle to re-do its extensive ESI search” based on only a general assertion that documents must be missing. ADT Sec. Servs. at *6.

A motion to compel discovery should identify the responses that are inadequate and what information is necessary to make them adequate.  ADT Sec. Servs. at *5-6. The Plaintiff only made a general assertion that the searches were inadequate and thus the motion failed in a broad court order. Id.

However, the Magistrate Judge did issue a limited order to re-search seven employee computers, because there was evidence the computers might have contained ESI missing from the original production.  ADT Sec. Servs. at *6.

The District Court found the Magistrate Judge’s order was reasonable and not clearly erroneous or contrary to law, because the seven computers ordered to be searched were used by individuals whose correspondence had been specifically requested by the Plaintiff with specific search terms. ADT Sec. Servs. at *6.

Moreover, the Plaintiff’s motion to compel the search of 10 additional custodians with new search terms violated the principle that “…[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.” ADT Sec. Servs. at *7, citing Seventh Circuit Electronic Discovery Committee, Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (2010).

Based on the above, the Court found the Magistrate Judge’s order was not clearly erroneous or contrary to law. ADT Sec. Servs. at *7-8.

Bow Tie Thoughts

There are procedural horror stories of attorneys bringing motions to compel discovery without an underlining discovery request. Such motions should be denied, because you cannot have a motion to compel without first requesting specific discovery.

Discovery is not supposed to be a monkey throwing darts wildly, hoping one hits the target. However, there can be challenges in determining the relevant custodians, what to specifically request, and the sources of electronically stored information. These challenges can make the brightest lawyer feel like the dart throwing monkey.

There are situations when it comes to eDiscovery where motion practice can be justified. If a production is reviewed in software that shows relationships between email messages, additional custodians may be identified who were not included in the original production. This can easily result in supplemental discovery or possibly motion practice. Hopefully, there is a meet and confer and ESI that is responsive is produced without spending money on motion practice.

What is a Reasonable Search?

The adequacy of searches for electronically stored information is often a challenge technically and procedurally for attorneys. The case of Mullen v. United States Army Crim. Investigation Command directly outlined how to evaluate whether a search was adequate.

Searching for Adequacy & Reasonableness 

A search for responsive discovery is reviewed on whether the proffering party has “demonstrated that it has conducted a search reasonably calculated to uncover all relevant documents.” Mullen v. United States Army Crim. Investigation Command, 2012 U.S. Dist. LEXIS 93977, 12-15 (E.D. Va. July 6, 2012), citing Rein v. United States PTO, 553 F.3d 353, 362-63 (4th Cir. Va. 2009).

The producing party can demonstrate an adequate search with the following:

…[An] affidavit [that is] reasonably detailed, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched so as to give the requesting party an opportunity to challenge the adequacy of the search.

Mullen, at *13, citing Rein at 362-63.

The Producing Party (a Federal agency) had their Chief of the Freedom of Information Act and Privacy Act Division state in an affidavit the four databases she searched. The affidavit also included the three search terms, which included the Plaintiff’s name, Social Security number and the term “Unconventional Concepts, Inc.”  The affidavit also included the sources of the documents produced pursuant to the request.  Mullen, at *13.

The Plaintiff argued that the affidavit only included general statements on the Producing Party’s search. The Court rejected this argument, saying it was “simply wrong,” because the Producing Party explained the searches for the FOIA request with the search terms used in the search and the sources that were searched.  Mullen, at *13-14.

Based on the information stated in the Defendant’s affidavit, the Court concluded the Producing Party conducted a reasonable search.

Bow Tie Thoughts

Before discussing search adequacy, it is important to state the gravity of discussing search terms and methodology in the meet and confer process. While it is a given disputes come naturally in litigation, parties working together to develop search terms and methodologies can reduce motion practice.

The general rule on challenging the adequacy of a search is to present expert testimony that would allow the court to conclude that a producing party’s search was inadequate (See, Culler v. Shinseki, 2011 U.S. Dist. LEXIS 96043, 25-26 (M.D. Pa. Aug. 26, 2011)).

Such a challenge usually would be after a production from a producing party and there is evidence of a search deficiency, such as specific ESI was not produced. There are other situations where it could arise, but it is important for a challenge that a search was not reasonable to be ripe and not speculation.

There are many forms such expert testimony may take. An expert might state there was a failure to include acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues (See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f), p127 (2011-2012 Ed.)). However, to keep the challenge from being merely speculation a search was inadequate, an expert might include specific examples of ESI that was not produced. Another strategy could be to show certain buzzwords appear in ESI that was produced, but those terms were not used in the search. As such, those buzzwords would need to be added as search terms (or a search string) to ensure the search was adequate.

A producing party can show the reasonableness of their searches, thus their adequacy, with  documentation of their process and that their technology was used correctly. For example, such documentation may include 1) the search terms used to identify the responsive ESI; 2) how the search terms were determined; 3) explain how the technology was used to conduct the searches; 4) state the qualifications of the person who conducted the search; and 5) describe the different data sources that were searched.

There are other ways the reasonableness of a search can be demonstrated, but the best description of the standard might be from Judge Facciola’s Peskoff v Faber, where the Court ordered an evidentary hearing on the adequacy of searches:

“I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.”

Peskoff v Faber, 240 F.R.D. 26, 31 (D.D.C. 2007).

eDiscovery Does Not Mean Esoteric Discovery

News Am. Mktg. In-Store Servs., is a breach of contract case involving multiple eDiscovery disputes.  According to the Plaintiff, the Defendant did the following:

Destroyed relevant email evidence, including an email server;

Failed to produce responsive documents in discovery due to the above failure; and

Failed to run appropriate ESI searches on Defendants’ computers.

News Am. Mktg. In-Store Servs. v. Floorgraphics, Inc., 2012 U.S. Dist. LEXIS 76543, at *3 (D.N.J. May 30, 2012).

The Plaintiffs further argued the Defendants needed to produce additional discovery and sanctions were warranted. Additionally, the Plaintiffs sought a neutral computer forensic expert to conduct an evaluation of Defendants’ computer systems. Id.

e-Discovery Mea Culpa

The Defendants countered that no discovery had been destroyed, but admitted that their discovery production was deficient.  News Am. Mktg. In-Store Servs., at *3-4.

The Defendants explained [conceded] that they searched the wrong computers and applied the wrong search terms. News Am. Mktg. In-Store Servs., at *4.

However, the Defendants stated they attempted to correct every deficiency and would continue to do so. Id.

Regarding the “destroyed” email server, the Defendants stated it was a “pass-through” server that had been reformatted.  Id. The Defendants explained the server would push incoming emails through the server to individual computers. Id. According to the Defendants, there was no ESI on this pass-through server. Id.

As part of their mea culpa, the Defendants proclaimed they would make witnesses available to be re-deposed and pay the reasonable attorneys fees for the depositions. Id. Moreover, any motions to compel were premature, because they were producing hundreds of thousands of documents. News Am. Mktg. In-Store Servs., at *5.

The Court’s Findings

The case should be about the merits not some esoteric electronic discovery issue.

Magistrate Judge Mark Falk

The Court’s conclusions on the dispute were direct and to the point:

One, the request to compel discovery is premature. Defendants admit that they used incorrect ESI search terms and did not search all of the appropriate avenues of electronic information. They have represented to the Court that 230,000 documents are in the process of being produced and that the production is being checked and re-checked by Defendants’ computer experts to ensure its accuracy. Thus, there is no basis for an order compelling the production of documents until, at least, Defendants’ production is complete.

Two, it appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at the outset of the case. See Fed. R. Civ. P. 26(f)(3)(C). The briefing discloses that Defendants’ counsel was not aware of the structure of Defendants’ computer systems until recently. It is inappropriate for Defendants to only now—three years after the case was filed and after discovery has closed—investigate their electronic systems.

Three, the Court is unable to determine whether information was contained on Defendants’ “reformatted,” “pass through” server. The parties’ positions on this are diametrically different and consist of unsupported conclusions laced with hyperbole.

Four, it is unclear whether ESI allegedly destroyed (or “passed through” Defendants’ server) may be recovered and, if so, the cost of doing so. This important issue is not adequately addressed in the papers.

Five, it is unclear whether the burden and expense of conducting the electronic discovery outweighs the benefit of doing so. See Fed. R. Civ. P. 26(b)(2)(C)(iii). The Court cannot discern from the papers whether a deep forensic search is justified.

Six, the appointment of a neutral computer expert is not called for at this time. In effect, it would transfer the ESI obligations of the parties to the Court. Stated another way, the issues are not sufficiently articulated for the Court to appoint an expert to embark on an unlimited search.

Seven, there is no basis for the Court to consider spoilation sanctions (or any sanctions) until, at least, Defendants complete their discovery production and the questions raised above are answered.

News Am. Mktg. In-Store Servs., at *5-7, (emphasis added).

The Court allowed the Plaintiff to take the 30(b)(6) deposition of the Defendants’ eDiscovery PMK that would be binding on the Defendant. The parties were directed to meet and confer on the deponent. Additionally, the PMK needed to be able to address whether any ESI could be recovered and the specific cost to do so. News Am. Mktg. In-Store Servs., at *7.

In the event there were still eDiscovery disputes after the deposition, the Court stated:

[T]he parties may simultaneously submit letters (double spaced, not to exceed ten pages) explaining the relevance and importance of the discovery and the benefits and burdens associated with the discovery—e.g., whether the costs and effort of securing the discovery is proportional to the expected result. Any letter from counsel must be accompanied by an affidavit from the party’s ESI expert which addresses the technical aspects of the dispute. The ESI expert’s affidavit must discuss the projected costs of proceeding with as much specificity as possible. General, conclusory statements—e.g., “it will be prohibitively expensive”—are unacceptable.

News Am. Mktg. In-Store Servs., at *7-8.

The Court’s opinion sent a very strong message on the discovery disputes between the parties: The case should be about the merits not some esoteric electronic discovery issue. News Am. Mktg. In-Store Servs., at *8 (emphasis added).

The Court was blunt in advising the parties it was “wary of the use of broad and ambiguous electronic discovery requests as a litigation tactic or as a ‘fishing expedition.’” Id. Moreover, the Court stated it was “troubling” for this level of discovery dispute to surface after 18 months of discovery.  Id. Additionally, the Court effectively sent an ethical message to the parties to “proceed in good faith, take reasonable positions, and attempt to resolve their dispute in accordance with the Guidelines For Litigation Conduct.”  News Am. Mktg. In-Store Servs., at *7-8.

The opinion concludes with the warning the Court “not hesitate to award substantial fees to the non-prevailing party or any party found to be proceeding in bad faith.”  News Am. Mktg. In-Store Servs., at *8-9.

Bow Tie Thoughts

I was impressed with Judge Mark Falk’s outlining of case issues and his order. Additionally, the Defendants attempts to correct their mistakes were very respectable.

This opinion highlights multiple eDiscovery issues that are taking place all over the United States: 1) The Duty of Competency in eDiscovery; 2) Providing the Court adequate information to make rulings; and 3) Do not forget the merits of the lawsuit with electronic discovery issues.

The Duty of Competency and eDiscovery has been slowly developing issue since December 2006. There are many attorneys who outright admit they do not understand preservation, review methodologies or discovery productions. One friend recently told me his firm just asks for paper productions because of the lack of knowledge in what to request.

In the current case, the Court stated, “It is inappropriate for Defendants to only now—three years after the case was filed and after discovery has closed—investigate their electronic systems.”  News Am. Mktg. In-Store Servs., at *5-6. Moreover, the Court it was “troubling” to have this sort of discovery dispute after 18 months of discovery. News Am. Mktg. In-Store Servs., at *8.

How can attorneys best meet their duty of competency in eDiscovery? While every client is different, it is important to have a discovery plan from the inception of the case. This may include in-depth client interviews with the parties, custodians, and IT staff (to name a few), to learn how the client uses technology. How does their email system work? Do they text or iMessage?  What sorts of computers do they use? Any tablets? Voicemail? Any personal devices used for business?

I believe the Duty of Competency requires attorneys to either understand their client’s technology themselves or at a minimum, hire a consultant to help the attorneys navigate the issues. Without such investigation, it is difficult to meet one’s ethical duty of candor to the court on the facts of the lawsuit and provide competent representation of their clients.

As to the second issue, lawyers cannot simply walk into court and tell a judge, “Your Honor, it’s expensive.”  The first questions from the Court will be “why and how much.” The answer cannot simply be “Because it is.”

Attorneys need to argue ESI is not reasonably accessible because of undue burden or cost (Fed. R. Civ. P. 26(b)(2)(B)) or that the burden and expense of conducting the electronic discovery outweighs the benefit of doing so (Fed. R. Civ. P. 26(b)(2)(C)(iii)), with specific information, most likely from an eDiscovery expert or IT professional.

The unofficial standard for demonstrating undue burden or expense might be from Judge Facciola’s United States ex rel. McBride v. Halliburton Co., 2011 U.S. Dist. LEXIS 6412, 1-2 (D.D.C. Jan. 24, 2011) opinion: “In excruciating, but highly educational and useful, detail.”

Judges want to have enough information that they can make the right decision. While there will be attorneys simply proclaiming searching a hard drive is expensive, the better litigation practice is to have a well documented affidavit outlining the process and cost to search for specific ESI.

Finally, Judge Falk’s statement “The case should be about the merits not some esoteric electronic discovery issue,” should go on t-shirts at e-Discovery conferences. It is easy to become enamored with search technology, collection methodologies and every other eDiscovery issue. However, every eDiscovery issue should be framed around the facts of the lawsuit, the causes of action and be relevant to competently move the case forward. The technology exists to enable lawyers to practice law, not to overshadow the merits of the case.

A Search Terms Gam

Determining search terms can sink into a voyage on the Pequod hunting a white whale. If a party obsesses over search terms, they may find themselves quoting Captain Ahab as they sink in an over-inclusive ocean of electronically stored information.

To The Last, I Grapple With Thee

In EEOC v. McCormick & Schmick’s Seafood Rests., Inc., the parties disagreed over search terms for the following EEOC discovery request:

“[E]mail communications responsive to EEOC’s First Request for Production of Documents to Defendants, particularly those relating to applicants, hiring, complaints of racial discrimination, and server section assignments…”

EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2012 U.S. Dist. LEXIS 13134, 13-14 (D. Md. Feb. 3, 2012).

The Defendants claimed the EEOC did not provide any proposed search terms to limit the whale of a tale of email for the Defendants to search.  McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court explained the practice, and danger, of just the producing party searching oceans of email:

Common practice governing the discovery of electronically stored information requires the use of search terms to make an extraordinarily burdensome search comply with the tenets of Fed.R.Civ.Proc. 26(b)(2)(C). If the producing party generates the search terms on its own, the inevitable result will be complaints that the search terms were inadequate.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

Gamming Over Search Terms

In old nautical traditions, a gam is a rendezvous of ships at sea. In today’s legal world, it is similar to a meet and confer.

The Court, recognizing the need for the parties to discuss search terms to narrow the data to emails relevant in the lawsuit, ordered the following:

For that reason, this Court will require the parties to confer on the development of reasonable search terms to be used to obtain responsive email communications in this case.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court ordered the EEOC to provide a list of search terms within five days. The Defendants were ordered to respond with any possible within five days after receiving the proposed search terms. The parties were to have good faith negotiations over any disagreements.  McCormick & Schmick’s Seafood Rests., Inc., at *14-15.

…And like Melville’s great whale circling the ships, the Court stated that if the parties could not agree on reasonable search terms:

[The] Court will determine, after review of the parties’ proposed lists and particularized information regarding the burden to be imposed by the proposed search, which terms will be used to allow Defendants to provide responsive email communications.

McCormick & Schmick’s Seafood Rests., Inc., at *15.

Bow Tie Thoughts

Developing search terms with an opposing party can drive a lawyer to sound like Gregory Peck…and not as Atticus Finch from To Kill a Mockingbird. 

Search terms are not something a lawyer can take revenge on for producing large data sets. In fact, parties need to meet and confer in cases with large volumes of data, to avoid searching the oceans for relevant ESI.

Here are just a few strategies for determining search terms:

Select Team for Creating Search Terms:

Litigating attorney, client, expert in subject matter, expert in building keyword search strings

Determine data sources.

Brainstorm possible names, events, dates and phrases that may be connected to the case.

Compile a list of last names, first names, surnames, nicknames, positions and other titles connected to the case. 

Determine acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues. 

List date ranges that correspond with critical time period in case.

Determine key event terms (heart attack, cardiac, hospital).

Determine search phrases.

Use thesaurus to locate similar words.

See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f) (2011-2012 Ed.).

Document review should not be a Melvillean maelstrom of over expansive data. If the discovery is in the terabytes, search terms and a defensible methodology are a necessity in order to find the relevant ESI.  Moreover, cooperation between the parties is vital for success, to avoid one party selecting very narrow search terms and the other claiming the search was under-inclusive.

Mechanical Analytics, or predictive coding, is one of the “newer” technologies in being able to help determine relevant ESI.  Predictive coding is arguably necessary in cases with extremely large volumes of ESI, because of efficiency and cost-savings in being able to identify relevant ESI faster than traditional review.

In essence, the software learns from a reviewing attorney who is a subject matter expert in the case and identifies additional relevant ESI based off the work done by the attorney. That is a very simple description of the technology. For a more detailed discussion, see this article by Herb Roitblat from OrcaTec (Disclosure: I have friends at OrcaTec and I have referred business to them).

Finding relevant electronically stored information is not a mad hunt for a white whale. With the right technology and strategies, parties can narrow data sets to relevant information.

Uncovering ESI: 20 Search Term Tips

Special Guest Article by Peter Coons & Tom Groom – D4 LLC

Over the years we have keyword searched thousands of hard drives, e-mail stores, thumb drives, CD’s and servers.  Using keywords to identify potentially relevant documents is a well established practice in the eDiscovery world.  When combined with other methods search terms can be a powerful means for culling down a large dataset.  When implemented improperly they can cause major headaches.  To help on the path the keyword nirvana we have outlined 20 helpful (we hope) tips below.

False positive defined: A search term “hits” within a document but not for the meaning that was intended.  For example, the term “comput*” would return “computer” (the intended term) but would also return “computational” (not intended).  Computational would be the “false positive” term.

Below is a list of tips and tricks

1. Any term less than four (4) characters may result in a lot of false positives.  Clients have asked to search for “IT” (information technology) and then wonder why they are getting thousands of false positives.   
2. Be aware of “noise word” lists that are being used during the searches.  Some software applications don’t index the word “it” or “up” for example, so your attempt to find the key phrase “pick up” may fall down.   Most noise word lists can be customized.
3. Be aware that searching numbers can sometimes return unwanted results.  Often we are asked to search for patent numbers such as 1,234,567.  If this term is not quoted properly the result may be way off.  Try using the word “patent” in conjunction with the number.  Be aware that searching for 1,000 will also return 1,000,000 or it could return 2.10,1.000,85697..021.  Make sense?  Exactly.
4. Don’t use wildcards unless it’s absolutely necessary.  If you want to find DOG or DOGS then don’t use DOG* as a search term.   Simply provide both variations of the word.   If you must use a wildcard then please refrain from leading with a wildcard character.  You may get the result you are looking for but you will bring a lot of unwanted garbage with it. 
5. Searching for names of custodians will return a lot of hits if that custodian is part of collection.  Usually, all of the documents for that custodian.  Same thing with company names or subsidiaries.
6. Before deciding on search terms with the opposing party please try to actually sample documents with the proposed terms.  This may seem obvious but this advice is followed about 5% of the time.
7. Searching dates – There are lots of dates associated with ESI.  There are created, modified, accessed, sent, received, etc.  If the ESI was not forensically collected and instead was collected by the custodians and “dropped on a server” don’t be surprised when you find ZERO documents prior to 1/1/2009.  The metadata has been obliterated. 
8. What are the expectations?  Do you expect a 10% return rate and you are getting 90% or vice versa?  If so, there may be an issue. 
9. Don’t request “fuzzy” searching unless you understand what exactly is being requested.
10. DeNISTing does not get rid of all EXE, DLL, and system files.   Not exactly related to searching but we had to throw it in here.
11. Not all logic is the same for all search engines.  For example, some may use the “w/” proximity operator and others use “near”.  Ask the provider or operator to explain the logic and syntax that is required for the software being used.
12. Many characters are traditionally indexed as spaces (e.g. !@”#$&’()*+,./:;<=>?[\5c]^`{|}~).  This means that “pcoons@d4discovery.com” is indexed as three separate terms: “pcoons” “d4discovery” and “com”.  The “@” and the “ .” are considered spaces.  If the characters listed above are all indexed as spaces then my e-mail address would be the same as searching for”pcoons!d4discovery=com”.  Searching for “D4-Discovery” or “D4 Discovery” will yield the same results if the “-“ is indexed as a space. 
13. “1,000″ is same as search “1 000″ and the “word” 1,000,000 is three separate items in the index (1) (000) and (000) so two words and three entries/items.  If we indexed “,” as a comma and not a space then we could search for numbers like 5,195,508 but that would cause even greater issues with searching for other words.
14. When searching personal names, use the “w/2” proximity search between the first and last names.  (Tom w/2 Groom) will pull back Tom Groom; Groom, Tom; Tom S Groom; Groom, Tom S.
15. Suggest expanding first names with known nicknames.  “Bill Johnson” could be searched with ((Bill OR William OR Will) w/2 Johnson).  You will obviously need to gather any special nicknames from the customer (only people in our office would know “Mr. Squeeze” would be David Lapresi).
16. It is a good idea to use all caps for connectors like OR and AND.  It makes it easier to read and some engines require the connectors to be in all caps.
17. Many search applications like the use of parenthesis to separate unique terms or sets of terms.  It also makes it easier to read and correct.  Use quotes when you need to search a literal or a phrase.  Sometimes the quotes will override the stop or noise words but not always.  Here is an example of the use of parenthesis and quotes.((Pete OR Peter) w/2 Coons) OR ((Dave OR David w/2 Lapresi) OR (terminator) OR (“our leaders”)
18. Suggest domain names for potentially privileged queries.  The term (“lawfirm.com”) for example would pick up all email addresses from that domain.  This works well to identify communication with outside counsel.  (Note the @ is treated like a space so you don’t need an * at the beginning of the domain name.)
19. Avoid redundancy. The search ((Dog) OR (Dog w/2 Collar)) is redundant…the second term would already be picked up by the first term.  However, the second term would be more limiting than the first term.
20. As shown in the previous example, you can use proximity searches to limit the returns if one of the words is common and returning too many false positives.

Boarding a Flight with Foreign Based Discovery for the Holidays

In the spirit of holiday travel, the Plaintiffs in Park v. Korean Air Lines Co., 2009 U.S. Dist. LEXIS 107647 (C.D. Cal. Nov. 18, 2009) brought a motion to compel discovery regarding tickets purchased in South Korea to show price fixing. 

As quickly as you can say “What’s your clearance, Clarence?” the parties in Park entered the world of foreign-based discovery. 

Federal Rule of Civil Procedure Rule 26(b) provides that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”  Park, at *4, citing Fed. R. Civ. P. 26(b). 

Seeking discovery from foreign parties in electronic discovery can be a minefield when it comes to foreign privacy laws.  Luckily, this was not one of those cases.

The Plaintiffs wanted the foreign discovery to help determine when the Defendants’ price fixing conspiracy ended.  Park, at *4-5.  Federal case-law vindicates the relevancy of foreign discovery in antitrust litigation for this purpose.  Examples include the following: 

Documents relating to meetings or communications with competitors outside the U.S. may be relevant to establish conspiracy.  Park, at *5, citing In re Urethane Antitrust Litigation, 2009 U.S. Dist. LEXIS 71135, at *21, *24 (D. Kan. Aug. 11, 2009).

“Evidence of foreign price-fixing among Defendants would also be material to prove that they had the opportunity and ability to engage in domestic price-fixing for automotive refinishing paint.” Park, at *5, citing, In re Automotive Refinishing Paint Antitrust Litigation, 2004 U.S. Dist. LEXIS 29160, *12 (E.D. Pa. Oct. 29, 2004)

Discovery may be relevant to show “how the conspiracy was maintained for the length of time alleged.” Park, at *5, citing, In re Vitamins Antitrust Litigation, 2001 U.S. Dist. LEXIS 8904, at *64 (D.D.C. June 20, 2001).

However, merely showing foreign discovery is relevant is only part of the analysis. The parties have to determine discovery protocols, which might include agreeing on custodians or limiting discovery to individuals with decision-making authority.  Park, at *6, citing In re Urethane Antitrust Litigation, 2009 U.S. Dist. LEXIS 71135 (D. Kan. Aug. 11, 2009) and In re Vitamins Antitrust Litigation, 2001 U.S. Dist. LEXIS 8904 (D.D.C. June 20, 2001).

In Park, the parties did not meet and confer on these issues.  Park, at *6. 

The Court ordered the parties to meet and confer on the foreign-discovery regarding pricing decision in South Korea and the United States. 

The parties were directed to discuss custodians, search terms and ways to reduce the volume of electronically stored information that would be both searched and produced.  Park, at *7.  While it was not stated, the parties should also consider which litigation support software to use with foreign language capabilities.

Bow Tie Thoughts

Holiday travel can be stressful, with long lines and individuals who are not used to airports and flying.  Electronic discovery can also cause nightmarish stress with large volumes of email, Excel files and lawyers who are trying to review native files like they were in box of paper one document at a time.  Leveraging litigation support software which can sort by custodians, dates and keywords can focus the review on the discovery that matters. 

Parties are well served in determining decision makers, custodians, search terms and data reduction strategies in any situation dealing with electronically stored information.  Focusing on these issues at the intake of a case reduces costs and control the volume of discovery.  Such diligence can also reduce the feeling of being trapped on a runway for 3 hours.