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.

You Don’t Want Discovery Overdraft Charges

Discovery deadlines matter. Wells Fargo learned that the hard way with producing a relevant email 8 months after the close of discovery. Given the nature of the relevancy to the lawsuit, limited additional discovery was reopened.

Opps_iStock_Here is the short overview of the case: Plaintiff’s asked Wells Fargo if the other Defendants (now dismissed) were a legitimate business engaged in securities sales. The bank said yes and the Plaintiff transferred $80,000 to the Defendant’s bank account in order to purchase securities that would yield a return of $280,000.

The second transaction involved reinvesting $250,000 of the promised $280,000 to fund a $500,000 loan to renovate an office building, plus an additional $50,000 transaction fee. Gazian v. Wells Fargo Bank Na, 2015 U.S. Dist. LEXIS 69701, *2-3.

The Plaintiffs attempted to withdraw $30,000 and transfer the $250,000 to the Defendants. Wells Fargo informed the Plaintiffs that the dismissed Defendants accounts had been emptied and no money would be transferred to the Plaintiffs. Id.

The Plaintiff’s sued Wells Fargo on the theory the bank “knowingly or negligently made false representations to Plaintiffs” about the dismissed Defendants. Gazian, at *3.

Enter the late-produced email message:

From: BROWN, Patrick [Wells Fargo]

Sent: Tue 8/2/2011 5:36:42 PM

Re: HSBC Bank Guarantee Registration Number BH5843[.]

I have conducted a review on the signor, Craig Cason, for this account, [redacted]7443 — Increase Capital Investments LLC and found several items of concern . . .

This individual has been investigated by the SEC for securities violations and accusations of fraud.

The address on the account is a virtual office that can be rented for $50/month, used frequently by shell companies to give the appearance of legitimacy even though no actual business is conducted there.

The client has filed multiple bankruptcies and has several outstanding judgments (some in excess of $100K), which is not consistent with someone purporting to have $250mil in assets.

Please do not process the receipt of this security. We will be restricting the account and referring the matter to our Security Fraud group. Additionally, please DO NOT disclose this information to the client or the outcome of our review. Please advise the client that we cannot assist him with his request.

Gazian, at *4.

The Defendants claimed this messaged pertained to another securities deal and was not relevant. Gazian, at *5. The Plaintiff and the Court did not agree.

The Court reopened discovery so the Plaintiffs could conduct 5 additional depositions of no more than 20 hours of depo time; 10 additional requests for production; and 10 additional interrogatories. The Court went further to say that the additional depositions and written discovery could inquire into the preservation of emails sent to and from one of the Wells Fargo custodians. Gazian, at *7-8.

Bow Tie Thoughts

A lawsuit can hinge on one smoking gun email that was produced late. This sort of situation is one that needs to be avoided by litigants. The problem when this happens is often one of not having an effective information governance solution, or not issuing a litigation hold correctly, or not collecting ESI, or not knowing how to leverage early case assessment tools to find potentially relevant information. To put it mildly, disaster can happen for many reasons.

How can parties avoid these situations? Use sound technologies to manage data that can issue a litigation hold and preserve relevant ESI. This does require determining what is relevant, but these are problems that can be solved by knowing what actions to take and the tools to properly litigate a case.

How eDiscovery Experts Can Help Fight the Blues

Magistrate Judge Jonathon Goodman knows the value of an expert deposition in complex litigation and B.B. King.

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Everyday I Have the Blues

Here is the basic dispute in Procaps S.A. v. Patheon Inc.: The Plaintiff, based in Columbia, did not put a litigation hold in place until ordered by the Court. There are issues with inadequate searches and the Plaintiff’s attorney did not travel to Columbia to meet with the Plaintiff’s IT team. Custodians conducted searches themselves for collection without reviewing the discovery requests. The Plaintiff is accused of spoliation of electronically stored information. A spoliation motion is expected. Procaps S.A. v. Patheon Inc., 2015 U.S. Dist. LEXIS 53997, 2-4 (S.D. Fla. Apr. 24, 2015).

A Special Master was appointed to examine the eDiscovery and forensic issues in the case. Additionally, a neutral third-party computer forensic expert examined the Plaintiff’s computers. A Report was prepared that showed “that nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted. It appears that approximately 5,700 of these files contain an ESI search term in their title, which indicates that they could have been subject to production in the forensic analysis if they had not been deleted. Procaps, at *7.

The Report also stated duplicate files could exist and that “there is no evidence that any ESI or other documents have been deleted or purged with no chance of being recovered.” Procaps, at *7-8.

To Know You is to Love You

The Defendants sought to conduct the deposition of the neutral third-party expert to explain the report. After a protracted discussion of whether the Court could order such a deposition procedurally, the Court stated Federal Rule Evidence 706(b)(2) expressly provided for such depositions. Procaps, at *15.

The Court explained that deposing the expert would benefit the parties and the Court in understanding the ESI issues in the case. As the Judged explained, “the Undersigned has no hesitation about disclosing my appreciation for help on complex ESI issues from court-appointed, neutral forensic experts (and from special masters with considerable experience in E-discovery).” Procaps, at *14-15.

The Court ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master. Procaps, at *2-3. The goal of the deposition was to assist the Court in deciding the issues from the deleted files and assist the Defendant in determining whether or not to file a sanctions motion. Id.

Bow Tie Thoughts

First things first, I hope B.B. King is comfortable.

The “e” in “eDiscovery” is not because it is “easy.” Determining whether ESI was lost, whether it exists in another location, whether it is not reasonably accessible, requires expert analysis. This expert analysis needs to be communicated to the Court, usually in the form of a Report or Affidavit, but sometimes in a deposition.

The battles in this case focused on procedural issues with having the expert deposition. The Court rightly allowed the deposition and was wise to leverage the Special Master, who is very knowledgeable in eDiscovery, to conduct the deposition. Many cases have complex issues with how to collect data and strategies for reviewing ESI. Employing an expert is a smart way to focus on the merits and not get lost in eDiscovery issues.

 

Can You Sue for Invasion of Privacy if Someone Reposts an Instagram Photo?

basketball-31353_1280If a basketball player posts a public photo to Instagram, and then another basketball player reposts the photo, can the first basketball player sue for Invasion of Privacy, Intentional Infliction of Emotional Distress, Defamation, and General Negligence?

The answer is yes, you can sue, but you will not survive a motion to dismiss. That is the lesson from Binion v. O’Neal, 2015 U.S. Dist. LEXIS 43456, 1 (E.D. Mich. Apr. 2, 2015).

US District Judge Avern Cohn started this opinion in the most logical place: Instagram’s terms of service. The Court quote Instagram’s FAQ’s and privacy statement as follows:

Instagram is a social media website that describes itself as a “fun and quirky way to share your life with friends through a series of pictures.” (FAQ, Instagram.com, https://instagram.com/about/faq/ (last visited Mar. 5, 2015)) Every Instagram user is advised that “[a]ll photos are public by default which means they are visible to anyone using Instagram or on the instagram.com website.” (Id.) However, Instagram allows users to “make [their] account private” such that “only people who follow [the user] on Instagram will be able to see [their] photos.” (Id.) If the Instagram user fails to make his/her account private, “anyone can subscribe to follow [their] photos.” (Id.)

Instagram‘s privacy policy states that “[b]y using our Service you understand and agree that we are providing a platform for you to post content, including photos, comments and other materials (“User Content”), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service.” (Privacy Policy, Instagram.com, https://instagram.com/about/legal/privacy/ (last visited Mar. 5, 2015)) The privacy policy further states, “[a]ny information or content that you voluntarily disclose for posting to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings that you set. . . . Once you have shared User Content or made it public, that User Content may be re-shared by others.” (Id.)

Binion v. O’Neal, 2015 U.S. Dist. LEXIS 43456, 2-3 (E.D. Mich. Apr. 2, 2015).

The Court reviewed each claim against Defendant Burke. The analysis focused heavily on Instagram’s privacy policies and Michigan law, as case was based in diversity.

The Invasion of Privacy cause of action was based on all four traditional claims: (1) “[i]ntrusion upon the plaintiff’s seclusion or solitude, or into his private affairs”; (2) “[p]ublic disclosure of embarrassing private facts about the plaintiff”; (3) “[p]ublicity which places the plaintiff in a false light in the public eye”; (4) “[a]ppropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” Binion, at *6.

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All of these claims failed. First, the Court found that a publicly posted photo to Instagram by a Plaintiff could not form a claim for “Intrusion upon Seclusion.” Binion, at *7. The Court agreed with the Defendant “that no reasonable person, particularly in the social media age, would find it objectionable to obtain and repost a photograph that someone had already posted publicly.” Id.

The Court also found there was no public disclosure of embarrassing private facts or “false light” claims from reposting a photo that originated from the Plaintiff. Binion, at *7-9. There was also no appropriation, as there was no evidence that reposting the photo of the Plaintiff gave the Defendant any pecuniary benefit. Binion, at *10.

The intentional infliction of emotional distress (IIED) requires a Plaintiff prove “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.” Binion, at *11. Reposting a publicly available photo from social media does not go “beyond all possible bounds of decency” to sustain a claim for IIED. Id.

The Court’s analysis of defamation was interesting. Defamation requires (1) “a false and defamatory statement concerning the plaintiff”; (2) “an unprivileged publication to a third party”; (3) “fault amounting to at least negligence on the part of the publisher”; and (4) “either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Binion, at *12.

The Court focused on the fact there were no statements attributed to the Defendant. The Plaintiff argued that the Defendant’s posting of the photo implied the Plaintiff was mentally handicapped or his appearance made him “worthy of ridicule.” Binion, at *13.

The Court rejected these arguments. There was no evidence that the Defendant had any statements that implied the Plaintiff was mentally handicapped. Moreover, Michigan Courts have held that online statements are “statements of pure opinion, rather than statement or implications of actual, provable fact.” Binion, at *13-14, citing Ghanam v Does, 303 Mich. App. 522, 547 (2014).

The Plaintiff’s general negligence claim also failed, because there was not a legal duty between both basketball players, other than “the general duty to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Binion, at *14. Moreover, the Defendant argued that his relationship with the “Plaintiff is no different than with the millions of other Instagram users who post photographs that can be shared, reposted, and commented on.” Id.

The Court agreed. There is no case law precedent that supports the legal theory that there is a “social media duty” on reposting photos with foreseeable consequences of emotional harm. Id.

Bow Tie Thoughts

The collection of Instagram photos in cases involving online torts is an interesting one. The subject photos can exist in the Instagram App, on a party’s Instagram photo online, and in the Camera Roll of the phone. The “right” image to capture for litigation can turn on the type of case. Many times simply printing the image as a PDF from Instagram.com could be all that is required. Other cases might just require a screen capture of the app on the smartphone. There are situations where collecting the photo from the smartphone is required, such as when GPS metadata is relevant. Whatever the situation, attorneys should consider what is the relevant source of information to preserve.

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.

 

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.

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.