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

Judge James Browning on eDiscovery “Technical Specialists”

In a case over bad faith litigation and whether costs were recoverable, a Court recognized the importance of those who perform eDiscovery work. The crux of the issue is that clerical work is not a recoverable cost, while the work a paralegal does to support an attorney is recoverable. Would the work performed an eDiscovery professional be recoverable like a paralegal’s work?

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United States District Court Judge James O Browning stated:

…while technology specialists’ duties are not strictly legal in the traditional sense, the Court believes that these technicians provide meaningful value to law firms and, ultimately, clients during litigation; those contributions should not go overlooked. In time past, young attorneys would select documents that paralegals would incorporate into specially created databases — e.g., “hot docs,” “Top 100 documents,” or documents specific to a particular witness or witnesses — and maintain them for the senior lawyers’ review. As technology developed, however, paralegals began uploading documents into databases which could then be searched and sorted using queries. Now so much is on ESI; the technology specialist helps produce documents and keep documents produced by other parties. These technology specialists now do some of the specialized work that paralegals used to do.

General Protecht Group v. Leviton Mfg. Co., 2015 U.S. Dist. LEXIS 109981, *95-96.

Judge Browning was just getting warmed up. The Court went on to say:

There is no sound reason to pay paralegals for document work in the 1980s and 1990s, but not technology specialists doing similar work in 2015 just because their job titles are different. The specialist is improving the quality of work product, and as a sensible approach, the case law should not penalize the practice in the legal community that is becoming more technology-based and efficient. Specialists may actually save money. Having a technology specialist for a single case is not unusual, and it can be more efficient sometimes to hire a specialist for a case than use a paralegal. To do otherwise would be to allow the case law to lag behind the introduction of document management products and databases in the twenty-first century. The proof that technology specialists are now doing legal work is that law firms hire technology specialist employees. Many years ago, few firms had paralegals; now it is the rare firm that does not have one or two. Forty years ago, few firms had specialists to manage documents; now, firms with twenty or more lawyers can justify hiring technology specialists for the job, and smaller firms may hire them on a contract basis. Today, when a client hires a law firm, it is hiring its paralegals as well as its technology specialists. When marketing their work, firms often quote their paralegal rates with their attorney rates. Document management is in great part what law firms do today, and clients expect to pay for that work. It is only fair for courts to follow the legal profession’s development of new means of providing high-quality representation and recognize technology specialists’ contributions as being legal in nature. The Court would therefore include technology specialist fees in its calculation of attorneys’ fees, subject to the same restrictions placed on other attorneys’ fees, i.e., that the technology specialists work pertained to the lawsuit at hand, and the hours were reasonable.

General Protecht Group, at *96-98, emphasis added.

Wow. Judge Browning gave one of the most practical descriptions on the value of having “technical specialists” help on the eDiscovery in a case. In the Northern District of California, this title could be “eDiscovery Liaison.” Some firms might even give this person titles such as “Director of Litigation Support” or “eDiscovery Counsel.”

Handling electronically stored information takes skill. Lawyers cannot upload self-collected PSTs from a client and review the data into Outlook. The data is likely corrupted from an indefensible collection. Moreover, using Outlook for document review is like crowbar for dentistry; it is not the intended use of the tool.

Attorneys need to understand how to identify relevant electronically stored information for preservation, develop defensible collection methodologies, and competently conduct review in a reasonable manner for everything from a reasonable inquiry to initial disclosures to production. Being able to execute a litigation workflow is not just required for defensibility, but the competent practice of law. Most lawyers require having someone assigned to manage these tasks under the attorney’s direction. Regardless of title, seeing a Judge state that “technical specialists” improve the quality of work product for efficiency is outstanding for the practice of law.

A Case Study on Privilege Logs

Privilege logs require more than merely saying a prospectively privileged document is an “attorney-client communication.” This requires litigants to conduct privilege review with far more analysis than simply tagging discovery “Attorney Client Privilege” or “Work Product Conduct.” The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs.

The Defendant produced a 2,941 PAGE privilege log that claimed the discovery was protected by the attorney-client privilege and/or the work product doctrine. United States v. Louisiana, 2015 U.S. Dist. LEXIS 100238, *3 (M.D. La. July 31, 2015).

Following in the wake of a nearly 3,000 page privilege log came a motion by the Plaintiff to compel a “Proper Privilege Log,” which was answered with a new privilege log of only 2,302 pages, plus a new 259 page privilege log. US v. Louisiana, *3-4.

Before discussing any privilege review, it is important to define the privileges in a case. As the Court explained, “[t]he attorney client privilege generally protects confidential communications made by a client to his lawyer for the purpose of obtaining legal advice. The work product doctrine protects materials prepared in anticipation of litigation that reveal the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Id, at *14, citing Hodges, Grant & Kaufmann v. United States Gov’t, 768 F.2d 719, 720-21 (5th Cir. 1985) and Conoco Inc. v. Boh Bros. Construction Co., 191 F.R.D. 107, 118 (W.D. La. 1998).

The Plaintiff challenged the privilege log as being “insufficiently specific,” citing examples that privileged claims were simply “NVRA” or “NVRA Spreadsheet,” “Voter Registration Form,” “Final NVRA-2013,” “NVRA Documents.” The NVRA is an acronym that the Defendant had to follow. Needless to say, the Court agreed these claimed privileges were insufficient. Id., at *9-10.

Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a privilege log to: “(i) expressly make the claim” of privilege; and “(ii) describe the nature” of the withheld information in a way that “will enable other parties to assess the claim.” The test for determining whether a privilege log is adequate is whether each entry states sufficient facts that establish each element of the privilege. This requires a specific description of why something is privileged, not a “conclusory invocations of the privilege or work-product rule.” Id., *6-7. Simply put, lawyers cannot say, “work product doctrine” like they are magic words to ward off opposing counsel.

The privilege log also lacked detail with the identities and roles of each sender and recipient. Id., *11. As such, there was no way for the Plaintiff to determine whether the claimed privileged information was actually covered by the privilege. Simply put, you need to state that a attorney-client communication is actually with an attorney either seeking or receiving legal advice.

The Court’s in-camera review of 40 claimed privileged documents showed serious problems with the privilege log, because there were communications not with any attorneys, emails regarding scheduling of training, reports with factual information, messages on compliance procedures, and apparently unrelated email. Id., at *13-14.

The Court held that many of the sampled documents did not fall under the attorney-client privilege or work-product doctrine, because the communications were internal communications. Many of the communications did not involve any lawyers, did not suggest an attorney-client relationship, and were not seeking legal advice. Moreover, the messages did not contain mental impressions of any lawyers. Id., at *15-18.

Bow Tie Thoughts

Privilege review cannot be haphazard. The litigation team should define the possible privileges in the case, whether there are spouses texting each other or someone emailing their pastor for spiritual advice. This further requires setting up the document review issue coding, so information is properly identified, tagged, and defined in a way to “enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5).

There are several ways to set up issue coding where a party can “(i) expressly make the claim” of privilege; and “(ii) describe the nature” that “will enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5). For example, let’s code for the attorney-client privilege. While state laws vary, the attorney client privilege requires at least an email between a client and lawyer, with the client seeking legal advice, or the lawyer providing legal advice. Coding could be set up as follows: Attorney Client Communications, with sub-issues, “Communication from Client to Lawyer Seeking Legal Advice, or “Communication from Lawyer to Client Providing Legal Advice.”

These tags would give detail to the privilege log, but still more is required. An additional free text note field would need to be added that could contain “sufficient facts that establish each element of the privilege.” A review team would need to decide at what stage of review they want reviewers adding such detail to the database. Some might find it is advantageous to have lawyers go into such detail while conducting their initial review, others might elect to have a privilege review team review everything tagged as privilege to provide sufficient facts in the notes to explain the claimed privilege.

The privilege log can be exported from most litigation support databases in Excel. The privilege log should include fields such as the Production Number (or Bates), Email From, Email To, Subject, Date Sent, Date Received, and any other relevant field, minus the body of the message. This information should provide both the requesting party and the Court enough information to evaluate whether the claimed privilege applies to the withheld discovery.

There are multiple ways to build a privilege log in a discovery review application. However, whichever method you select, think it through with the requirements for privilege logs and the privileges in mind.

Put the Brakes on Self-Collection

There is no question that automotive product liability litigation is complex. However, self-collection is never a good idea. The Ford Unintended Acceleration Litigation is a case study on why it is a good idea to use archiving solutions and have expert witnesses conduct data collection.

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The Plaintiffs argued that Ford did not have a reasonable search and collection methodology, because the data from custodians was all “self-collected.” Moreover, the self-collection appeared to be conducted by custodians using search terms in the internal email system, which were then stored on the company server. Burd v. Ford Motor Co., 2015 U.S. Dist. LEXIS 88518, *9-11 (S.D. W. Va. July 8, 2015).

The case continued down a bumpy road with bi-weekly conference calls with the Court. As the Court was faced with contradictory statements from both sides, the Plaintiffs were directed to take depositions of the custodians to investigate whether the search methodology was reasonable. Burd, at *13. Deposition testimony showed that key employees performed limited searches or no searches at all. Burd, at *35-36.

The parties also attempted to meet and confer over how to search for the responsive ESI. The Defendant took the position they would not share their search terms because 1) the search terms were work product; and 2) there actually was no list of search terms used, because each custodian developed their own search terms after discussing the case with counsel. Burd, at *14-15.

Ford argued against producing their own document retention policies as being irrelevant “non-merits” discovery. Burd, at *30. Moreover, Ford argued that information regarding their collection and production methodology was irrelevant “discovery on discovery” that invaded attorney work product. Burd, at *30-31.

The Court stated that the generic objections to “discovery on discovery” and “non-merits” discovery are outmoded and unpersuasive. Burd, at *34 (emphasis added). The Court went on to state:

Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford’s document search, retrieval, and production. Although Ford deflects these concerns with frequent complaints of overly broad and burdensome requests, it has failed to supply any detailed information to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive materials. At the same time that Ford acknowledges the existence of variations in the search terms and processes used by its custodians, along with limitations in some of the searches, it refuses to expressly state the nature of the variations and limitations, instead asserting work product protection. Ford has cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates “the principles of an open, transparent discovery process.”

Burd, at *34.

The Court explained that document retention policies can be discovered through a Rule 30(b)(6) witness and were not contingent on a claim of spoliation. Burd, at *34-35. Moreover, the Court rejected the claim that the search terms used to identify responsive discovery was protected by the work product doctrine. Burd, at *36. Simply because an attorney discussed how to search with a custodian does not make the search terms and the results protected by the work product doctrine. Burd, at *36-37. The search terms could be produced without disclosing any substances of discussion with an attorney. Id.

The Court granted the Plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the Defendant’s search and collection methodology for a more transparent process and their collection methods. Burd, at *40-41. However, the Court did not rule on the issue of whether the Defendant had a reasonable collection process or adequate production, because the issue was premature. Id. Witnesses still had to be deposed. That being said, the Plaintiffs could file a new motion if the facts justified it. Id.

Bow Tie Thoughts

Self-collection is like driving a car without brakes. Defensibility requires that litigants document how electronically stored information is identified for collection. This traditionally is done by expert witnesses who use a chain of custody form, documenting search terms, processes, and results as they conduct their investigation. Custodians who are simply looking for ESI in Outlook, not documenting their process with any form of notes, run the huge risk of having an indefensible collection methodology. Moreover, one can argue that a lawyer could not certify the production under Rule 26(g) because the collection process was unreasonable.

Archiving solutions are a huge help to large organization in enacting litigation holds. Many have the ability to sequester custodians by date range and keywords. Alternatively, an expert witness can develop the proper collection methodology for the computer system in use. Once the data is defensibly collected, it can be reviewed for relevance by attorneys.

There is always a justified desire to control litigation costs. However, the discovery workflow of preservation, collection, review, and analysis cannot be shifted to custodians performing self-collection. Litigation requires forensic software used by experts and eDiscovery software used by attorneys to competently practice law.

My advice: put the brakes on self-collection.

Remembering Jack Halprin

JackHalprinJack Halprin was a great legal mind in eDiscovery. Jack was smart, had a sharp sense of humor, and a profoundly decent person. His passing leaves a void for those who called him friend.

I met Jack shortly after I began my career in eDiscovery in 2006. One of his colleagues said his nickname was “Happy Jack,” because of his cheerful personality. I found his nickname to be extremely accurate. Every project with him was a grand adventure.

We first presented together at CEIC, focusing on how to preserve electronically stored information and computer forensics. We had a seminar series together where we went from computer forensics to the Federal Rules of Civil Procedure and trial presentation. I had a lot of fun on that series with Jack.

Jack unknowingly called me with a job prospect within an hour of my mother’s death. He knew I had been laid off and was looking for a new job. He called out of thoughtfulness and offered kind words for my mother’s passing.

Those who knew Jack will miss him. I offer his family my sincere condolences. Jack was an outstanding human being who left this Earth far too early.

Pinning Down Admissibility

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Admissibility of electronically stored information cases are almost always in criminal cases.

The Pinterest v Pintrips infringement litigation has excellent analysis by US District Court Judge Haywood Gilliam, Jr., on the admissibility of email messages and news articles in civil litigation.

Email Admissibility

Pinterest offered two email messages as evidence of confusion. Pinterest argued the emails put Pintrips on notice of confusion by third parties. Pinterest, Inc. v. Pintrips, Inc., 2015 U.S. Dist. LEXIS 76545, *2 (N.D. Cal. June 12, 2015). As such, Pinterest argued the evidence would be relevant to Pintrips state of mind for the allegation of willfulness and intent. Id.

The Court agreed the emails could be admitted for the non-hearsay purpose of showing Pintrips’ knowledge and intent. Pinterest, at *3. Moreover, Pintrips objections to the relevancy of the email went to the weight of the evidence, not its admissibility. Id.

The first email exhibit was a consumer email to Pintrips’ customer support regarding her password and log in credentials for her Pinterest account. Id. The Court held this email was relevant and admissible to show confusion. Id.

The Court rejected the hearsay exception arguments for the second email. The email was a message from a third party to Pintrip’s CEO with the statement, “[w]hen you say it out loud it sounds like [P]intrips . . .” Pinterest, at *4.

The Court explained the declarant was not expressing confusion herself at the names of the companies, but her opinion that the names sounded similar. Id. The declarant’s statement did not qualify under the “present sense impression” or “state of mind” exceptions to the hearsay rule and thus were inadmissible hearsay. Id.

The Court admitted both messages for the non-hearsay purpose of Pintrip’s knowledge and intent, however, only the first email exhibt was admitted as evidence of consumer confusion. Id.

Admissibility of News Articles

News articles, books, and releases were offered by Pintrips to demonstrate the generic uses of “pin” and “pinning” online. Pinterest, at *4-5. Pinterest opposed, arguing the prospective exhibits were hearsay. Pinterest, at *5.

The Court stated that there “can be no dispute that evidence of the use of the terms “pin” and “pinning”—both by media publications and other companies—is relevant to the Court’s inquiry.” Id.

The Court found that Pinterest had not cited any authority excluding news articles to show generic uses of terms in trademark cases. Pinterest, at *6. The Court noted that other courts had considered the materials for “the non-hearsay purpose of determining whether a word or phrase is used to refer to the specific goods or services of the plaintiff, as opposed to an entire class of goods or services in general.” Id.

The Court ultimately admitted the exhibits as “evidence that ‘pin’ and ‘pinning’ are words that companies and the media use to describe a particular action in the computing and internet context,” but not for the truth of the matter asserted in the articles. Pinterest, at *7.

Bow Tie Thoughts

Judge Haywood Gilliam, Jr., issued a solid opinion on the admissibility issues in this case.

We do not see many opinions on admissibility in civil litigation, because most civil cases do not get to trial. I have seen admissibility issues arise in summary judgment motions, but most of our admissibility cases are criminal.

The Pinterest v Pintrips litigation gives a good look at the admissibility of ESI in civil litigation. Admissibility is often not conducted in document review during the first pass because it increases time and review costs. I recommend issue coding for admissibility in large cases after the dataset has been narrowed down to what will be used in deposition and motion practice. If email, text messages, or social media posts need to be authenticated, depositions are an ideal time to seek those answers. Determining what exhibits need to be explored at deposition are ideal during admissibility review.

Always Explain How Requested Information Moves a Case Forward for Proportionality

A requesting party issued a third party subpoena on the ATF for email messages created between 2000 to 2009. The Court denied the production of the messages on the grounds the emails were not reasonably accessible because of being stored on back-up tapes. The moving party also failed to demonstrate good cause to order the production of the requested information. The Court also addressed the proportionality of the request under Federal Rule of Civil Procedure Rule Rule 26(b)(2)(C). Baranski v. United States, 2015 U.S. Dist. LEXIS 71584, *52-54 (E.D. Mo. June 3, 2015).

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The Court began the proportionality analysis highlighting the emails were between six to eight years old and stored on back-up tapes for disaster recovery. Baranski, at *52.

The Court further noted that the production of the emails would “involve substantial costs and time and the active intervention of computer specialists,” which had been explained by expert affidavit. Id.

An added factor included that the emails would have to be searched by specific users and the requesting party had not identified any users to be searched. Id. This made the discovery request not sufficiently specific. Baranski, at *53.

The Court further drove home the proportionality analysis that the cost could not be justified for the requested information without some showing that the requested emails contained information to resolve the issues in the lawsuit. Id. As such, the Court denied the requesting party’s subpoena.

Bow Tie Thoughts

Proportionality is the balancing of two factors: 1) What must be done to make the data accessible (including cost, time on the project, what technology must be used) and 2) How is the information going to be beneficial to the case.

Cost is irrelevant if the information has not objective value to a lawsuit. A party seeking information that especially requires translation into a reasonably useable form should be ready to state why it supports the causes of action in a case, with specific custodians, time frames, and any other information to assist the Judge in making her ruling. Without knowing how the information will move the case forward, a Court will be hard pressed to order expensive data recovery procedures.