About bowtielaw

I am an attorney CLE presenter on e-Discovery issues.

Jury Instructions to Avoid a #Mistrial

Puerto Rico continues to be a very forward thinking Court when it comes to social media. Magistrate Judge Silvia Carreño-Coll issued the following Jury Instructions on Social Media usage in a product liability case:

JURY INSTRUCTION 30

NO SOCIAL MEDIA

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry, or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, MySpace, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Quilez-Velar v. Bodies, 2015 U.S. Dist. LEXIS 20817, 36 (D.P.R. Feb. 19, 2015).

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Lord have mercy if a juror posts a selfie during jury deliberations to Instagram.

Judge Carreño-Coll’s “must not” list is extremely thorough on stating how jurors cannot communicate on social media, or any other communication, during their deliberations. While it is difficult to imagine a juror doing it, someone posting a vlog on YouTube about their jury deliberations during a trial is an excellent way for a Judge to say “hashtag mistrial.”

It is ok to “live Tweet” the Oscars, the State of the Union, or your favorite television show. Jurors live Tweeting a trial undermines the integrity of the judicial process. It is the duty of attorneys and Judges to ensure jurors understand their role during a trial and that posting to social media could have serious repercussions on the rights of the parties.

It is great to see the Federal Court in Puerto Rico including such comprehensive lists in their jury instructions. Keep up the good work.

WHOA! A Prevailing Party Recovered $57,873.61 in eDiscovery Costs!

thumb-456698_1280My God, is it true? Did a Prevailing Party recover virtually all of its eDiscovery costs?

The answer is yes, thanks to a case in Colorado.

United States District Judge Christine M. Arguello opened her order denying the Plaintiff’s motion to review the clerk’s taxation of costs with the following:

Because Defendants’ costs related to the electronically stored information (“ESI”) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.

Comprehensive Addiction Treatment Ctr. v. Leslea, 2015 U.S. Dist. LEXIS 17878, 1.

Rock on. Let’s review the Court’s reasoning.

The Plaintiff took the position that the Defendants’ eDiscovery cost award be reduced from $57,873.61 to $2,387.03, striking the work of a third-party eDiscovery service provider who performed the “retrieving, restoring, and converting data,” on the grounds the work did not constitute “copying.” Leslea, at *2.

The Court explained the Defendants hired their eDiscovery service provider to retrieve and restore ESI in order to respond to the Plaintiff’s Interrogatories and Requests for Productions. The requested discovery included “correspondence, summaries, emails, reports, and memos” relating to specific subject matter. Leslea, at *4-5. The Court noted that the work was complex and time-intensive, requiring three consecutive tolling agreements. Id.

The Defendants communicated with the Plaintiffs three times on the challenges over ESI, including providing detailed information on the scope of the data, archiving, and retention periods on multiple sources of data (hard drives, back-up tapes, etc). Leslea, at *5. In the second communication, the Defendants explained how the service provider restored 83 back-up tapes; and in the third the service provider’s forensic investigator detailed the difficulties in restoring the subject ESI. Id

The Court noted that the Plaintiffs were aware of the ESI challenges, did not recommend any changes to the scope of discovery, and even filed a new complaint with additional allegations. Leslea, at *5-6.

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The Court held that the ESI expenses were “reasonably necessary for use in the case” and not done for the mere convenience of the parties. Leslea, at *6. The Court concluded the order as follows:

Indeed, Plaintiffs were aware of the monumental effort to retrieve and convert the data into a retrievable format in response to their Interrogatories and Requests for Production. The costs incurred by Defendants, the prevailing party, in responding to Plaintiffs’ requests are expenses that are shifted to Plaintiffs, the losing party. Indeed, Plaintiffs own litigation choices and aggressive course of discovery necessarily resulted in “heightened” defense costs. Plaintiffs have not demonstrated that these costs are improper. Accordingly, Defendants are entitled to recover their costs in full measure as determined by the Clerk, which it has identified as $57,873.61.

Leslea, at *6-7, citing In re Williams Sec. Litig-WCG Subclass, 558 F.3d at 1150.

Bow Tie Thoughts

Thank you Judge Arguello for understanding a simple truth: eDiscovery requires technology to retrieve information and translate it into reasonable useable forms that are necessary for the case. This technology and expertise costs money. Yes, this case had an expert who explained what was being done during the litigation. Not every case has such powerful facts explaining the why and how of restoring ESI to make it reasonably useable, but this is an epic victory for taxation of eDiscovery costs.

Search Term Fights Over Proportionality

Attorneys have been fighting over search terms for years. Many times this fight is without expert advice, search efficiency reports, or any evidence to support arguments for or against proportionality.

I also think fighting over “search terms” is actually the wrong fight. The focus should be on search concepts and leveraging advanced analytics to identify relevant ESI.

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Take the recent whistle blower case of Lutzeier v. Citigroup Inc. The Plaintiff sought an order to compel additional searches with the following terms:

(1) “Executive training” and/or “leadership development training program”; 

(2) “PEP” and/or “program expenditure proposal” and/or “internal control”,

(3) “OCC,” “office of comptroller of currency,” “FRB,” “federal reserve board,” and/or “consent order”;

(4) “Insufficient assurance”; and

(5) “Whistleblower,” “retaliate,” “retaliation,” “SOX,” “Sarbanes Oxley,” and/or “Dodd Frank.”

Lutzeier v. Citigroup Inc., 2015 U.S. Dist. LEXIS 11727, 20-21 (E.D. Mo. Feb. 2, 2015).

The Defendant argued that the search terms were “so common and generic” that the results would include a “significant volume of irrelevant documents that it is not sufficient to justify the additional burden.” Lutzeier, at *21. To be fair to the Defendant, they had a strong argument that on their face the Plaintiff’s search terms look broad.

The Defendant argued that the search terms for “Fred,” “Lutzeier,” “LOIS,” “COSMOS,” and “Champney” would produce the relevant ESI. Moreover, adding the proposed terms would add an additional 555,909 files, therefore the burden “greatly outweighs the likelihood that these searches will yield additional documents not already captured by Defendants’ search protocol.” Lutzeier at *21, citing Fed.R.Civ.P. 26(b)(2)(C)(iii)).

The Court agreed with the Defendants that the search terms were generic, excepted at the search term “consent order.” As such, the Court denied the Plaintiff’s request for additional searches, with the exception of one additional search term. Lutzeier at *21-22.

I do not like second guessing Courts, but I really do not like this result. We have many types of advance analytics for searching that go far beyond “search terms.” We can see communication patterns; identify date ranges; and key players making relevant communications. Moreover, the issue of finding responsive information is not one of “search terms,” but of “search concepts.” What sort of information supports a party’s claims or defense? What is relevant to that case? This goes beyond determining specific words to use, but specific concepts to find relevant ESI.

One of the challenges I see from discussing eDiscovery with litigators, is that many lawyers think that because they can perform legal research that they are competent to conduct advance searches of electronically stored information. While a podiatrist is competent to treat an ingrown toenail, that doctor is not competent to perform brain surgery (and the brain surgeon is not the right doctor to perform surgery on a broken ankle). Each is an expert in their respective fields. The same applies to lawyers and eDiscovery experts.

My friends who are eDiscovery experts would have suggestions on the Plaintiff’s search terms and counter arguments to the Defense objections (after sufficient education on the facts of the case). I’d wager they would develop search strings to narrow the Plaintiff’s search terms based on the Defendant’s search terms.

Maybe the parties had expert reports supporting their positions, but I cannot tell from the Court order (the fact the Defendant had an exact count of ESI files shows a factual argument was made to the Court, perhaps based on a search efficiency report). Regardless, there are ways to leverage the technology we have to find relevant and responsive ESI. I believe other options could have been used in this case, but would need more information to recommend a strategy.

Stapling Proportionality

Proportionality and costs are not a great argument when you are complaining about your own databases.

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Webb v. Ethicon Endo-Surgery, Inc., is a product liability case over a surgical stapler that misfired during a surgery, resulting in complications to the Plaintiff’s recovery. Webb v. Ethicon Endo-Surgery, Inc., 2015 U.S. Dist. LEXIS 8275, 2-3 (D. Minn. Jan. 26, 2015). The Magistrate Judge attempted surgery on the scope of discovery, resulting in the Defendant arguing the scope was too broad, and the Plaintiff arguing it was too narrow, over three specific discovery requests. The District Court upheld the Magistrate Judge’s order on the scope of discovery.

The Defendant offered a declaration from their risk manager to support their argument to narrow discovery based on proportionality. The Defendant argued that they had made the line of medical staplers for 18 years and the records were stored in multiple databases. Webb, at *14-15.

The Defendant further argued that it would cost $62,400 to search the multiple databases, which was disproportional to the Plaintiff’s damages “in excess” of $50,000. Webb, at *16. This argument failed.

The Court cited that the producing party has the burden of complying with discovery requests and “a corporation [that] has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Webb, at *16-17, quoting Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) and citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

The Court held that the Magistrate Judge properly determined the scope of discovery in evaluating the expense, burden, and likely benefit of the information sought for the subject discovery requests. Webb, at *17.

Bow Tie Thoughts

Searching databases is expensive. Many judges do not care for arguments from a producing party that searching multiple, or even dissimilar, databases make the cost of relevant discovery prohibitively expensive. This is like arguing a party should be protected from its own self-inflicted wound on how they manage different databases.

Technology is constantly improving, thus methods of storing data change over time. If a company maintains electronically stored information going back potentially decades, they should be prepared have the ability to search it in litigation in a cost effective manner.

Let’s Play eDiscovery Baseball

We have Geek Judges. I love those Jurists. We also have Judges who love sports. I have a gut feeling it would be fun to go see a baseball game with Magistrate Judge Young B. Kim.

baseball-oldschool

Bagwe v. Sedgwick Claims Mgmt. Servs., is a case where the prevailing party sought eDiscovery costs against an individual plaintiff. The Court took the mound for its analysis of the Defendants’ arguments with the following wind-up:

Defendants take several different swings to recover their costs related to ediscovery. Defendants first swing for the fence and seek $57,858.94 for the entirety of their ediscovery costs. They miss.

Bagwe v. Sedgwick Claims Mgmt. Servs., 2015 U.S. Dist. LEXIS 8809, at *15 (N.D. Ill. Jan. 27, 2015).

Get out the peanuts and crackerjacks, because Judge Kim was just getting warmed up.

As with many eDiscovery cost cases, the Court stated that the Defendants were “vague” about how the sum of $57,858.94 was determined. The Court cited that the costs pertained to obtaining and culling 422.05 Gigabytes of data down to 25 Gigabytes. Bagwe, at *15-16.

The Defendants argued they used “eDiscovery techniques” and were able to identify “even better” data than the prevailing Defendants in the In re Aspartame Antitrust Litigation, 817 F. Supp. 2d 608, 614-15 (E.D. Pa. 2011). Bagwe, at *16.

Defendants unsuccessfully argued that cases such as “Race Tires, Rawal, and Johnson were all wrongly decided” and that the facts of the current case justified cost recovery. Id. The Court answered this argument as follows:

Defendants’ assertion that Race Tires, Rawal, and Johnson were wrongly decided may be brushed aside because they do not offer any reasons why these cases were wrongly decided or why this court should not follow them. They merely urge the court to award all of their e-discovery costs because “[t]he equities demand [Bagwe] be held fully responsible.” But Rule 54 is not a discovery sanction tool.

Bagwe, at *16-17.

The Court continued the baseball metaphor with, “Defendants next swing for a double and argue that if the entire amount cannot be recovered, they are entitled to at least $7,953.90, which represents the cost of “gather[ing] emails with metadata intact . . . by creating forensic images and then extracting the .pst files into .msg files,” which they say amounts to converting the files into a “readable format.” Bagwe, at *17.

baseball-316934_1280The Court stated this argument was again a miss, because the Defendants did not explain how “the act of gathering e-mails that include metadata is different from other types of non-taxable ‘gathering.’” Id. As stated in prior decisions, “gathering, preserving, processing, searching, culling, and extracting of ESI” are not recoverable. Id.

The Court rejected the Plaintiff’s argument that the only recoverable costs were a $67 thumb drive. Bagwe, at *17-18.

The Defendants did get a hit with their final eDiscovery cost argument on “copying.” As the Court explained in its analysis of exemplification in Section 1920:

Costs for “exemplification and the costs of making copies” through photocopying and the conversion of ESI into a readable format are two sides of the same coin: namely, the pre-and-post digital era approach to “copying,” or creating readable documents that may be transmitted to the party requesting the information. The court notes that Section 1920(4) does not employ the phrase “making photocopies,” which is commonly understood to mean making paper copies, but employs the phrase “making copies of any materials,” which is a much broader phrase with more diverse meaning. Accordingly, Defendants are entitled to recover $7,266.40 in ediscovery costs. 

Bagwe, *18-19, referencing Massuda v Panda Express, Inc, 2014 U.S. Dist. LEXIS 4956, at *6.

$7,266.40 is a good base hit in the world of eDiscovery cost recovery.

Bow Tie Thoughts

First things first: I cannot wait for baseball season.

From a philosophic point of view, I agree with the Defendants that there should be greater recovery for eDiscovery costs. However, no one can cite “Josh thinks so,” in a motion and a Court will simply agree with me.

Proving eDiscovery costs were necessary for litigation and required for productions take invoices that explain what steps were taken and why. Even then, expert affidavits would still need to be prepared to explain to the Court why those eDiscovery technologies were used. Even if a party provided a Judge with the educational background on why those technologies were applied to the data, and how processing IS making copies, there is no guarantee such a report would knock the argument out of the ballpark.

Do I think there should be greater cost recover in eDiscovery costs? You bet. I also think Pablo Sandoval should have stayed with the Giants, but that did not happen. I often have the same melancholy feelings about parties not being able to recover hosting or processing costs as the Panda leaving San Francisco.

Swabbing the Decks of Admissibility

Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.

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What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in “painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.” Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts “probably [were] not giving the employers a good impression,” was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible?

There are many attorneys who think of social media as an epic “gotcha” game with the opposing party. There is no question that the cases where someone who claimed a back injury has posted Facebook video of themselves riding a mechanical bull riding is highly relevant to the lawsuit. However, the fundamental issue with any social media post is it must be relevant to the case. If the information is not relevant, then it is inadmissible.

This case shows an interesting mix. Posts that were relevant to the case could be used at trial, but the Plaintiff could challenge them under FRE 403. Alternatively, testimony that was purely speculative about the Plaintiff’s posts precluding him from getting hired for another job was not admissible.

As with any evidence, ask is this social media relevant to the case? Is there a casual connection to what is trying to be proven? Performing such analysis should help save time conducting document review of social media in discovery.

Let’s Go to Law School: High School Mock Trial Practice

High School students across California are preparing for the fictional case of People v Shem. Lawyers and teacher-advisors are spending significant time helping students prepare for this mock trial that involves art, grand larceny, four exhibits, detailed expert testimony, and issues of whether a search was Constitutional.

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I have coached the Santa Clara High School team for five years. We were extremely fortunate to use the Santa Clara University Law School moot courtroom to host a practice with Gregori over Martin Luther King weekend. The students were able to secure the moot courtroom as a thank you for assisting as witnesses for mock trial tournament the law school hosted last year.

WitnessDirect

This was a wonderful opportunity for the students to test their trial advocacy skills outside of a classroom setting. The students learned what worked well from their months of practice and areas of improvement. The tournament begins in February, so the next few weeks will have very focused practice.

I want to thank Santa Clara Law, Santa Clara University, for this wonderful opportunity for my students.