Mining for eDiscovery Sanctions

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

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

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

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

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

The Plaintiff brought a sanctions motion for the following:

(1) Default judgment on liability;

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

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

(4) Permission to depose seven additional employees;

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

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

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

(8) Reasonable expenses associated with the instant motion.

Clay, at *7.

How to Go Mining for Sanctions 

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

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

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

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

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

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

Digging for Default 

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

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

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

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

(4) the effectiveness of less drastic sanctions.

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

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

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

 Striking Deposition Gold

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

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

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

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

The Mother load of Costs

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

Bow Tie Thoughts

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

Here are hard truths about electronically stored information:

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

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

You cannot practice law by simply ignoring electronically stored information;

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

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

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

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

No Differences in Discoverability Between Social Media & Email

Letters versus telegrams. Faxes versus emails.

Attorneys must be familiar with the many ways people have communicated in the everyday course of their lives.

“Social media” is just another evolution in technology for possible sources of electronically stored information.

Robinson v. Jones Lang Lasalle Ams., is a case centering on a motion to compel the production of social media discovery from the Plaintiff in an employment dispute. Robinson v. Jones Lang Lasalle Ams., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012).

The Defendants specific sought social media including:

…photographs, videos, and blogs, as well as Facebook, Linkedln, and MySpace content that reveals or relates to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint…

Robinson, at *1-2.

The Court bundled its analysis of the social media discovery bundled with other electronically stored information including email and text messages. As Magistrate Judge Paul Papak wisely stated, recognizing that social media is simply another form of ESI:

I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Robinson, at *3.

In determining its order, the Court cited E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (“Simply Storage“), which “recognized that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Robinson, at *3-4.

The Plaintiff previously agreed to produce social media discovery “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions.’” Robinson, at *5. Following the principles from Simply Storage, the Court ordered the following:

(1) any: (a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Robinson, at *5-6.

The Court explained that the category of communications pertaining to “any emotion, feeling, or mental state that plaintiff alleges to have been caused by defendant” was in regards to “information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.”  Robinson, at *6.

Additionally, the category of communications “that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct” was meant to produce discovery “establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident.” Robinson, at *6-7.

The Court walked the line between limiting discovery and declaring open season on the Plaintiff’s life with the following passage:

As Simply Storage recognized, it is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production. 270 F.R.D. at 436. Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what “has and has not been produced and can challenge the production if it believes the production fails short of the requirements of this order.” Id. Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiff s deposition or other discovery. 

Robinson, at *6-7.

Bow Tie Thoughts

Magistrate Judge Paul Papak did a huge service to eDiscovery with the statement “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” Robinson, at *3.

Social media content is just another form of electronically stored information. For example, there is no legal difference in drafting requests for Lotus Notes and CAD files. The same is true for social media, because it is literally just another flavor of ESI. Social media does not require special rules, just a recognition of the procedures that follow such requests.

Social media should not strike fear into the hearts of lawyers. Attorneys must learn to overcome their fear by understanding the types of social media their clients use; ways to preserve social media; what sorts of social media they should request; different forms of production; and whether any privileges apply to the specific electronically stored information.

Requesting Facebook Wall Posts obviously have differences with requests for email messages. However, the Federal Rules of Civil Procedure apply equally to both, and that is something that Magistrate Judge Paul Papak recognized in Robinson v. Jones Lang Lasalle Ams.

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.

How to Get an eDiscovery Evidentiary Hearing

Judge David Waxse waded into a case that highlighted issues in parties not cooperating and possible inadequate preservation, search and production of ESI.  Chura v. Delmar Gardens of Lenexa, Inc., 2012 U.S. Dist. LEXIS 36893, 7-8 (D. Kan. Mar. 20, 2012).

The litigation involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.

The Plaintiffs challenged the sufficiency of the responses to multiple discovery requests, starting with their first request for production.

Plaintiffs’ Request for Production 1 directed the Defendant to produce information from 10 individuals identified by the Defendants with knowledge of the facts in the lawsuit.  Chura, at *3-4.

The Defendants’ reply referred the Plaintiffs to the complaints and personnel files of the Plaintiffs. Chura, at *4.

The Plaintiffs claimed the Defendants failed to produce the “written complaints, any emails or phone logs, the investigation files, and their personnel files.” Chura, at *4. The production also lacked ESI one would normally expect in employment litigation, such as

[E]mails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses;

[N]otes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked; and

[R]eports and emails to the corporate office regarding the complaints.

Chura, at *4.

The production void also lacked any information created by the HR Director or facility administrator regarding their investigation; complaints by the Plaintiffs; complete wage payment records; performance appraisals; or witness statements.  Chura, at *5-6. As the Plaintiffs argued and Court recounted:

It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.

Chura, at *6.

The Court found it was unlikely the Defendant had no responsive information besides the personnel files and discrimination complaints.

Judge Waxse also stated it was “questionable” that the investigation of the complaints had no email, correspondence of other reports.  Chura, at *6.

Further, the Plaintiffs claimed the Defendants’ search methodology was simply running an Outlook search on the alleged harasser’s computer. Chura, at *7.

The Court ordered the following evidentiary hearing over the discovery dispute:

Based upon the limited information provided in the parties’ briefing, the Court cannot determine whether Defendant met its duty to both preserve relevant evidence or conduct a reasonable search for ESI responsive to Request No. 1. It is unclear what actions Defendant undertook in order to preserve and search for ESI responsive to Request No. 1. The Court finds that Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to the discovery requests.n5 The Court will therefore set an evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI responsive to Plaintiffs’ interrogatories and requests for production. Based on the evidence presented at the hearing, the Court will determine whether Defendant made reasonable efforts to preserve relevant evidence and search its computer systems for ESI responsive to Request No. 1.

Chura, at *7-8.

Evidentiary hearings were also granted to several other challenges to the sufficiency of the Defendants’ searches over other discovery requests.

Bow Tie Thoughts

There are many attorneys that have a difficult concept with searching for electronically stored information.  I have met some who consider “search” merely running a single keyword search in Outlook.

For some attorneys, asking them to define “search” is par with asking them to define “liberty.”  There are many forms of “searching” and it is important to understand how the term is being used in the different stages of litigation.

“Search” may mean to a corporate client using a content management system to identify custodians, date ranges and other determining information to identify ESI for preservation.  This ESI can then exported out for analysis in an “early case data assessment” platform or processed for document review.

“Search” may mean to an individual party the collection of data with a strategic collection methodology that can be defended in court. This can include preserving the information with target search technologies to find relevant ESI, such as AD Triage or PinPoint Labs Harvester.

A lawyer with a “small” case in the single Gigabytes may want to use a product like Proof Finder by Nuix for searching the dataset for relevant ESI.

Moving to the other side of the data spectrum, a party with double digit Terabytes of data may want to “search” the dataset with a “computer-assisted review” application, such as OrcaTec’s Document Decisioning Suite. There are several products on the market that can “learn” from a reviewing attorney and identify relevant other relevant ESI based off the attorney’s relevancy determinations.

The actual review of electronically stored information often requires running search terms across ESI based off a propounding party’s discovery requests.  All litigation support review platforms have basic search technology, in addition to different advanced analytical tools.

For example, XERA from iConect can identify relationships between email messages with its “6 Degrees – Relationship Visualizer.”

There is amazing technology in the market to solve eDiscovery challenges, however, there is still a huge “search” problem in the preservation and production stages of a lawsuit.  Many of these issues can be resolved by using the right technology by people with knowledge on how to use the technology correctly. The right technology will differ case to case, which only highlights the need for lawyers to work with consultants who understand eDiscovery tools as they relate to different clients.

(Disclosure: I have business relationships with all of the companies mentioned in this post and friends at each organization).

Watch Local Rules on Initial Disclosures

Jo Ann Howard & Assocs., P.C. v. Cassity, is a dispute over the production of a Defendant’s initial disclosures.

The Defendant described various ESI and other documents as part of their initial disclosures pursuant to Federal Rule of Civil Procedure Rule 26(a)(1).  Jo Ann Howard & Assocs., P.C. v. Cassity, 2012 U.S. Dist. LEXIS 17423 (E.D. Mo. Feb. 13, 2012).

The Plaintiffs argued in their motion to compel that the local Rules and the Case Management Order required the production of the Defendant’s initial disclosures, not merely their description. Jo Ann Howard & Assocs., P.C., at *8-9.

E.D. Mo. L.R. 26-3.01(A) states:

Disclosures shall be made in the manner set forth in Fed. R. Civ. P. 26(a)(1) and (2), except to the extent otherwise stipulated by the parties or directed by order of the Court. Disclosure of documents and electronically stored information pursuant to Rule 26(a)(1)(A)(ii) shall be made by providing a copy to all other parties, except as otherwise ordered by the Court. . . . .

Jo Ann Howard & Assocs., P.C., at *9.

The Court’s Case Management Order required initial disclosures and discovery to be produced by a specific date.

The Court found that taken together, the CMO and Local Rules required the Defendants to produce the information identified in their initial disclosures. Jo Ann Howard & Assocs., P.C., at *9-10.

The Court rejected the Defendant’s argument they did not need to produce anything, because the information was available from a Government production (The Plaintiffs claimed the Government production did not have the information identified in the Defendant’s initial disclosures).  The Court stated, “[A] party is not relieved of its obligation to produce discovery materials merely because those materials are available from other sources.” Jo Ann Howard & Assocs., P.C., at *10.

Bow Tie Thoughts

It is important to always know the local rules. While they cannot outright conflict with the Federal Rules of Civil Procedure, they may add additional requirements on a party.

Huge Hole in eDiscovery Process

Airlines don’t just lose luggage.

In antitrust litigation over airline baggage fees, a Court sanctioned Delta for not conducting a reasonable inquiry and a “huge hole” in their eDiscovery process. In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 41-43 (N.D. Ga. Feb. 3, 2012).

Flight Plan to Missing ESI

Delta had implicitly represented that all of the hard drives had been searched and there were no missing back-up tapes. This was not correct. In re Delta, at *41.

The Plaintiff argued, and the Court found, that Delta did not verify that all of the hard drives in their eDiscovery service provider’s evidence locker were searched.  Id.  The apparent breakdown in discovery was summarized as follows:

Defense Attorney emailed service provider list of custodians whose hard drives should have been loaded onto Early Case Data Assessment Software.

Service Provider did not respond with confirmation that each listed person’s drive was on the system. 

Service provider only stated that files were identified by “user employee id, not by name.”

Delta did not show it ever confirmed with their service provider that each hard drive that was supposed to be run through Early Case Data Assessment software actually had been.

In re Delta, at *42-43.

The Court coldly stated, “This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed” and searched through the ECDA software. In re Delta, at *43.

The Court found that the Defendant did not conduct a reasonably inquiry.  Moreover, the Defendant did not substantially justify its failure to ensure the drives were searched. In re Delta, at *43.

This turbulent eDiscovery flight can be summarized as a failure of community between the attorneys and service provider. The Court zeroed in on the lack of attorney confirmation by the service provider that each hard drive was actually searched.

But that is only the beginning of the eDiscovery issues. 

Rule 26(g) Violations

Federal Rule of Civil Procedure Rule 26(g) requires that an attorney of record in a lawsuit sign every response or objection to a discovery request, including initial disclosures under Rule 26(a) (1).  Fed. R. Civ. P. 26(g)(1).

The attorney signature certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) With respect to a disclosure, it is complete and correct as of the time it is made; and

(B) With respect to a discovery request, response, or objection, it is:

(i) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii)  Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and 

(iii) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Fed. R. Civ. P. 26(g)(1)

The Court found that “sanctions under Rule 26(g) were appropriate for Delta’s failure to ensure that all collected hard drives were actually searched and to locate the back-up tapes in the evidence locker and for its myriad inaccurate representations that it had done both.”   In re Delta, at *45.

The Court found the “appropriate sanction” in the case was to pay reasonable expenses, including attorneys’ fees, caused by its Rule 26(g) violation. In re Delta, at *46-47.

The Court based this decision on Delta’s diligent actions since learning of the discovery mistake.  The Defendants’ actions included:

Collection of the two terabytes of data produced in the DOJ investigation and searched the data for documents relevant to this case;

Processed the newly discovered back-up tapes and produced relevant documents;

Employed electronic search terms to accommodate Plaintiffs’ requests;  

Added additional custodians to the search list;

Searched material collected in another unrelated DOJ investigation;

Agreed to numerous additional discovery requests made by Plaintiffs; and

Produced documents prior to summary judgment and well before trial.  

In re Delta, at *46-47.

Rule 26(e) & Rule 37(c)(1) Violations

The Plaintiffs also leveled Rule 26(e) and Rule 37(c)(1) violations for the unsearched hard drives.

The Plaintiffs sought as sanctions an award for fees and expenses for:

(1) The motion;

(2) The portion of the discovery period that must now be extended;

(3) Plaintiffs’ motion for spoliation sanctions; and

(4) Order barring Delta from using any of the recently produced documents as evidence during any proceeding.

The Court held that Delta would not be sanctioned with the exclusion of the late production, because 1) Delta informed the Court and Plaintiffs after they discovered the issue; 2) Requested the Court suspend the case schedule; and 3) there was no evidence the Defendants willfully withheld the discovery.  In re Delta, at *65-66.

The Defendants were sanctioned with reasonable expenses and costs.  As the Court explained:

Delta made myriad misrepresentations to the Court and Plaintiffs that its document production was complete, and it waited almost two weeks to inform the Court of the problems with its document production.

In re Delta, at *65-66.

Bow Tie Thoughts

No attorney wants to be fighting against allegations they violated Rule 26(g) or Rule 37(c) for failing to supplement their initial disclosures or discovery responses.

Effective project management, like air traffic control, is vital to effective electronic discovery.  While this case has a relative happy landing of only being sanctioned with paying attorneys’ fees and expenses, that must not have been a cheap bill. Moreover, a judge blasting attorneys for a “huge hole” in their eDiscovery process is something no one ever wants to see in case law.

This case highlights what to do when something goes wrong: own up to the mistake and take immediate action to fix it. The attorneys deserve credit for the positive action they took when they learned of the error.

Interfacing with an eDiscovery service provider is a must for most law firms, unless they have brought eDiscovery in-house. Even then, the lawyers still need to effectively communicate with the eDiscovery professionals on what has been searched or not searched. There are many ways to verify work has been done, such as with check-lists, weekly project status calls, case wikis and other project management tools.  Which ever is used, make sure they are consistent, work is verified and the information is easy to report if questioned in Court.

A service provider that does not effectively communicate with its lawyers can quickly find itself on the no-fly list if their law firm client endures the crash landing of Rules 26(g), 26(e) and 37(c) violations because of miscommunications on hard drives sitting unsearched in an evidence locker. Such miscommunications can be very innocent, but result in expensive motion practice. Effective project management and communications are the best means to avoid such mid-air collisions of Rules 26(g) and 37(c)(1).

Printing ESI & Scanning It Is Not OK

In Indep. Mktg. Group v. Keen, the Defendant-Requesting Party requested the corporate Plaintiff conduct targeted searches with specific key words on specific custodians on the Plaintiff’s server.  Indep. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. Jan. 24, 2012).

The Plaintiff produced one multiple page PDF without any searchable text or metadata.  Indep. Mktg. Group., at *2.

The Defendant requested the Plaintiff do a reasonable search on their server for responsive ESI.  The Plaintiff responded by producing four “poor quality” PDF files without any search text.  The PDF’s were hundreds of pages long.  Indep. Mktg. Group., at *2.

In the course of the discovery dispute, the Plaintiff later refused to re-produce the ESI, claiming a $10,000 production cost was “a prohibitive cost that [Plaintiff] [was] not willing to incur for the production of the documents [Defendants] requested.” Indep. Mktg. Group., at *3.

The Plaintiff later produced disks with files that could not be opened, including system and temporary files. Indep. Mktg. Group., at *3-4, fn 1.

The Court was not thrilled with the Plaintiff’s discovery arguments.  The Plaintiff was a corporation seeking damages in the hundreds of thousands of dollars, plus punitive damages and attorneys fees. Indep. Mktg. Group., at *8.

The Court observed the Plaintiffs production methodology included identifying the responsive ESI on their computer, printing it as paper and then scanning the paper as a non-searchable PDF.  Indep. Mktg. Group., at *4-5.

The Court explained that the Plaintiff did not produce the ESI as it was ordinarily maintained by printing the ESI as paper and then scanning the documents as non-searchable PDF’s.  Indep. Mktg. Group., at *5.  Additionally, the ESI was not produced in a reasonably useable form, because it was non-searchable.  Id.

The Court rejected Plaintiff’s undue burden and cost arguments, noting that there is a presumption that the producing party incurs its own production costs.  Moreover, the Plaintiff never argued the data was not reasonably accessible, which would have been undercut by the fact they could search their computer for responsive ESI that was printed. Indep. Mktg. Group., at *6-7.

The Court ultimately granted to motion to compel, requiring the production to be re-produced in a reasonably useable form and denying an award of attorneys’ fees.

Bow Tie Thoughts

The Federal Rules of Civil Procedure and corresponding case law are abundantly clear that you cannot degrade searchable files.  Printing ESI and then scanning the paper as non-searchable PDF’s is simply not permitted by the discovery rules.

The other issue parties can end up in trouble over is arguing the cost of eDiscovery being unduly burdensome.  In a case worth hundreds of thousands of dollars, where the ESI is reasonably accessible, it is difficult to argue a production cost of $10,000 to be unduly burdensome.  It is more likely a party would spend a significant amount of money in motion practice, with the end result being the same discovery bill if the party simply produced the information correctly the first time.