About bowtielaw

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

Are “Read Receipt” Emails Hearsay?

How do you authenticate “Read Receipt” auto-generated emails? Are the messages hearsay?

social-349528_1280This issue was raised by a Defendant who challenged “Read Receipt” emails generated by one of the Defendants after reading an email from the Plaintiff.

The Court rejected the argument that the “Read Receipt” email was unauthenticated hearsay. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., 2015 U.S. Dist. LEXIS 30583, 31-32 (E.D.N.C. Mar. 10, 2015).

The Court outright questioned whether a “Read Receipt” email was even a statement, which requires that an assertion is intended under Federal Rules of Evidence 801(a). The Court considered that even if an auto-generated “Read Receipt” email was a statement, it would be admissible against the Defendant because the email was created by the Defendant reading (or at least opening) the Plaintiff’s email message. This is an unique way of saying “Read Receipt” emails are party admissions under Federal Rule of Evidence Rule 801(d)(2)(A) and (D), because the message came from the Defendant’s work email for a matter he was supposed to investigate as part of his job function. Fox, at *30-31.

The Defendant argued the “Read Receipt” was not properly authenticated, because the Plaintiff failed to have a technical affidavit explaining how “read receipt” emails are generated for reliability. Fox, at *31.

The Court rejected the argument the Plaintiff needed to explain how Defendant’s auto-generated email was created. While there are times for technical affidavits, this was not one of them according to the Court. The Court explained that since the email was being admitted as a statement of a party opponent, the Court did not require a technical report to ensure the reliability of the email. Fox, at *31, citing Fed. R. Evid. 801(d)(2).

Bow Tie Thoughts

Authentication and hearsay are issues Courts deal with daily over electronically stored information. I am confident this was not the first Court to deal with the issue of “read receipt” emails, but it was the first I have seen.

I would argue the auto-generated message is not hearsay, because there is no statement from a human being. However, one could argue with a straight face such messages are statements, because the data generated from the time it was read and the sending of the message is an assertion of fact. That being said, finding the “read receipt” message was a party admission was a very clever argument.

If You Also Love Evidence 

I have loved Evidence since law school. I am very happy to be doing a webinar with Guidance Software on the Admissibility of Electronically Stored Information on April 8, 2015, with Judge Matthew A. Sciarrino, Jr. of the Kings County Supreme Court, Kathleen F. McConnell, Esq., of Seyfarth Shaw LLP, and Chad McManamy, Esq., Vice President of E-Discovery and Assistant General Counsel for Guidance Software. If you would like to learn more and attend, you can register at here. I am really looking forward to the webinar.

 

Stating Reality: Imaging a Hard Drive Makes a Copy

Taxation of cost cases do not generally have happy endings for recovering eDiscovery costs. The United States Court of Appeals for the Sixth Circuit issued a very important opinion on March 17, 2015 well grounded in the reality of civil litigation and the law where eDiscovery costs were recovered.

It also takes a swing at Race Tires, which is always a welcome read.

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The Court of Appeals held that the cost of video deposition synchronization and transcript were properly taxed. Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S. App. LEXIS 4184, 2-3 (6th Cir. Ohio 2015). The Trial Court had determined the synchronized video deposition was “reasonably necessary” and the opposing party never explained how the costs were either unreasonable or unnecessary. Id.

For anyone who has conducted deposition review, this is good news. I have spent many hours reviewing depositions and video depositions. “Reasonably necessary” is an understatement. Synced video depos allow you to understand the context of the testimony. A simple question and answer in a transcript can look harmless, but if the video shows the deponent turning bright red, biting his lip, and answering the question with his teeth clinched, you know that testimony is important.

From Yeslaw.net

From Yeslaw.net

The Court of Appeals further allowed the recovery of costs for imaging a hard drive. The Court stated:

Imaging a hard drive falls squarely within the definition of “copy,” which tellingly lists “image” as a synonym. And the name “imaging” describes the process itself. Imaging creates “an identical copy of the hard drive, including empty sectors.” The image serves as a functional reproduction of the physical storage disk. From the image file, one can access any application file or electronic document on the hard drive with all that document’s original properties and metadata intact. Id. If not actually made or formed in the image of the hard drive, we certainly regard it as such. Thus, a plain reading of the statute authorizes courts to tax the reasonable cost of imaging, provided the image file was necessarily obtained for use in the case.

Colosi, at *6, citing CBT Flint, 737 F.3d at 1328 (quoting The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management 27 (Sherry B. Harris et al. eds., 3d ed. 2010)) and 1329-30.

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I think it is extremely significant that the Court held that the imaging a hard drive “making a copy” and falls within the plain meeting of the taxation of costs statute.

The Court further stated that the Race Tires court “ignored § 1920’s text.” Colosi, at *8. The Court explained:

We need not ask whether imaging is the “functional equivalent” of making photocopies in the era before electronic discovery because—consistent with the 2008 amendments—the procedure comes within the ordinary meaning of “making copies of any materials.” While the Third Circuit rightly worried over expanding the scope of § 1920 to include expensive electronic discovery procedures not contemplated by Congress, this concern more appropriately pertains to the context-dependent question of whether the prevailing party necessarily obtained its copies for use in the case.

Colosi, at *8; Taniguchi, 132 S. Ct. at 2002—06 (beginning its interpretation of § 1920 with the ordinary meaning of words before examining statutory context).

The biggest take away from this case is a Court stated a reality of electronic discovery: an image of a hard drive is a copy.

Focus on the Merits to Find What is Relevant, Not Search Terms Alone

Responding to a discovery request marries the practice of law to search technology. Rule 26 Conferences in Federal Court often have parties spending a significant amount of time exchanging “search terms” to determine the most effective discovery protocol for a case.

I think focusing on “search terms” alone is the wrong focus. Parties in a meet and confer should focus on search concepts, such as who are the relevant individuals, date ranges, and core terms. However, the focus should be on how to identify what is relevant to the claims and defenses in a lawsuit and not the minutia of “search terms.”

Mature business male conducting a meeting

Consider the case of In re Lithium Ion Batteries Antitrust Litig. The parties negotiated and developed a search protocol using search terms. The Court summarized the ESI protocol as follows[1]:

  1. The producing/responding party will develop an initial list of proposed search terms and provide those terms to the requesting party;
  2. Within 30 days, the requesting party may propose modifications to the list of terms or provide additional terms (up to 125 additional terms or modifications); and
  3. Upon receipt of any additional terms or modifications, the producing/responding party will evaluate the terms, and
  4. Run all additional/modified terms upon which the parties can agree and review the results of those searches for responsiveness, privilege, and necessary redactions (Proposed Search Term Protocol § B4), or
  5. For those additional/modified terms to which the producing/responding party objects on the basis of overbreadth or identification of a disproportionate number of irrelevant documents, that party will provide the requesting party with certain quantitative metrics and meet and confer to determine whether the parties can agree on modifications to such terms. Among other things, the quantitative metrics include the number of documents returned by a search term and the nature and type of irrelevant documents that the search term returns. In the event the parties are unable to reach agreement regarding additional/modified search terms, the parties may file a joint letter regarding the dispute.

The Plaintiffs recommended if there were disputed search terms after “quantitative metrics evaluation, the parties would then conduct a randomized qualitative sampling.” This would be done by a “random number generator” that would “generate a statistically valid number of ordinal positions of the identified documents,” and the “randomly selected documents can be viewed by the Requesting Party immediately after the appropriate privilege check.”[2]

Nothing left to chance - Business Strategy

The Defendants were not keen on this plan, because the sampling protocol would result in production of irrelevant information.[3]

The Court agreed with the Plaintiff, stating that the “point of random sampling is to eliminate irrelevant documents from the group identified by a computerized search and focus the parties’ search on relevant documents only.”[4]

Judge Donna Ryu explained the Court’s holding on the fact that keywords can be “overinclusive” and can find a large numbers of irrelevant documents in addition to relevant ones. [5] Invoking the Moore v. Publicis Groupe opinion, the Court stated the goal of “quality control test[ing]” is “to assure accuracy in retrieval and elimination of ‘false positives.'”[6] 

The Court pointed out the Plaintiff’s common sense argument: a random sample that shows that a search is returning a high proportion of irrelevant documents is a bad search and needs to be modified to improve its precision in identifying relevant documents.[7]

The Court further stated that the proposed sampling procedure was designed to prevent irrelevant documents from being reviewed and would obviate motion practice over search terms.[8]

The Defendants’ concerns did not fall on deaf ears. The Court explained that the Defendants could remove any irrelevant files from the random qualitative sample for any reason as long as the removed files were replaced with an equal number of randomly generated files.[9]

The Court order became very specific on the following points[10]:

The parties agreed that the procedure for qualitative sampling shall apply only after exhaustion of the quantitative evaluation process.

Irrelevant documents in the sample shall be used only for the purpose of resolving disputes regarding search terms in this action, and for no other purpose in this litigation or in any other litigation; those irrelevant documents, as well as any attorney notes regarding the sample, shall be destroyed within fourteen days of resolution of the search term dispute, with such destruction confirmed in an affidavit by counsel. 

In addition, the court held that access to the random sample shall be limited to one attorney from each law firm designated co-lead class counsel for Direct Purchaser Plaintiffs and Indirect Purchaser Plaintiffs (total of six attorneys).

Plaintiffs could invoke the random sampling process with respect to no more than five search terms per defendant group. 

A defendant family would run one combined search for up to five disputed terms, rather than creating separate samples for each disputed term. The parties were ordered to meet and confer regarding the sample size, as well as the overall limit on the number of sample documents generated per defendant family.

Bow Tie Thoughts 

This search protocol was very specific on sampling. Moreover, it also highlights how complex “search” can be in litigation. However, it also highlights the danger of only using “search terms” in discovery.

“Search terms” are recognized as easily being both over and under inclusive. As such, there is no meet and confer that will ever determine every possible search term. If there were, ESI Protocols would like the Napoleonic Code of Discovery.

The issue with discovery is determining how to find the ESI that is relevant to the claims and defenses of a lawsuit. The first steps include determining the key players in the litigation, the date ranges, how they communicated, and terms of art that they used. The context of communications should go beyond “search terms,” to what are the concepts at issue in the lawsuit so today’s eDiscovery software can truly be used as “technology-assisted review” to help lawyers find responsive ESI.

 Footnotes 

[1] In re Lithium Ion Batteries Antitrust Litig., 2015 U.S. Dist. LEXIS 22915, 48-49 (N.D. Cal. Feb. 24, 2015).

[2] Id., at *49.

[3] Id., at *55.

[4] Id., at *54.

[5] Id., at 54, citing Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y. 2012).

[6] Id., at 54, citing Moore at 191, citing William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009).

[7] Id., at *55.

[8] Id.

[9] Id., at *55.

[10] Id., at 55-56.

Return to the TAR-Pit

Take note all, there is a new predictive coding case by Judge Andrew Peck. The good Judge waded into the TAR-pit of transparency, which in my opinion has caused much unnecessary problems with judges and parties who believe “transparency” is required when predictive coding is used, mandating the disclosure of seed sets. I do not think the Federal Rules of Civil Procedure place such a burden on producing parties by attacking the work-product doctrine or compelling the production of irrelevant information.

Judge Peck summarized that “where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust.” Rio Tinto Plc v. Vale S.A., 2015 U.S. Dist. LEXIS 24996, 8 (S.D.N.Y. Mar. 2, 2015).

Judge Peck’s new opinion did not rule on the issue of seed transparency, because the parties had agreed to an ESI protocol that “disclosed all non-privilege documents in the control sets.” Rio Tinto Plc., at *10. However, Judge Peck provided his thoughts on what I would call a bias against technology-assisted review:

One point must be stressed -it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.

Rio Tinto Plc, at *10, emphasis added.

Business team enjoying victory

That statement is extremely important. There is no valid reason to treat “predictive coding,” or any other form of analytics such as conceptual searching, email threading, or clustering, to higher discovery standards because “technology” is used.

The issue is whether or not the production is adequate. A producing party should not have to disclose attorney work product in analyzing their case or proving the technology functions. Courts do not hold competency hearings on whether an attorney properly knows how to conduct online legal research to ensure attorneys are maintaining their ethical duty of candor to the court. The same logic applies to technology-assisted review and productions.

Judge Peck did state while he generally believed in cooperation, “requesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as now responsive.” Rio Tinto Plc., at *9-10, referencing Grossman & Cormack, Comments, supra, 7 Fed. Cts. L. Rev. at 301-12.

The focus of discovery should be whether or not a production is adequate. Are there production gaps? Is the parent-child relationship maintained between email messages and attachments? Is the producing party conducting quality assurance testing? Is the producing party documenting their efforts?

Judge Peck’s latest opinion will not be the final word on the issue of “transparency.” However, Judge Peck is a well-respected jurist who understands technology-assisted review. His statement that “it is inappropriate to hold TAR to a higher standard than keywords or manual review” is a very welcome one.

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.