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Josh
I have met lawyers who have a crazy idea: They HAVE to read EVERY email, document, Excel file, video, and every other bit of ESI produced in discovery.
That position is wrong. Lawyers have a duty of competency to their client, and candor to the court, to look at what is relevant to their case and responsive to discovery requests. This can be accomplished using one of the many eDiscovery review applications, leveraging search terms, advanced analytics, time lines, predictive coding, and knowing the scope of discovery.
This issue was highlighted in a criminal case where the government produced over 1.9 million pages of discovery, plus 49 audio recordings, and two videos. United States v. Pomrenke, 2015 U.S. Dist. LEXIS 165287, *1. Defense counsel sought a six-month continuance.
They got a six-week one instead.
Defense counsel argued that they had an ethical obligation to “review every document produced by the government to determine its relevance or lack thereof.” Their estimated time for three lawyers working around the clock would take more than a year to complete. Pomrenke, at *4.
The Court did not buy the argument. Judge James P. Jones stated:
I believe that many of the produced documents can be reviewed very quickly. Counsel for the defendants can use e-discovery software to aid in their review and can enlist the assistance of additional attorneys if necessary. In addition to the three attorneys of record, the defense team also includes an investigator. Moreover, the defendant’s husband is legally trained. Although he is not counsel of record in this case, I previously affirmed an order of the magistrate judge allowing the defendant to disclose the discovery materials to her husband, anticipating that he would assist with trial preparation.
Pomrenke, at *5.
The Court granted a six-week continuance, which was “adequate time for the defense to prepare for trial while still serving the interest of the public and the defendant in having this case promptly concluded.” Pomrenke, at *5-6.
Bow Tie Thoughts
Relevancy review does not require eyes on every document. Determining the case story lawyers want to tell the jury focuses review to find that information. Moreover, jury instructions are highly effective in structuring document review to find what is relevant.
Attorneys can focus the scope of discovery to the key players in the case. From there, searches can be further refined based on time frames, and subject matter to search for in the database.
“Predictive Coding” is also extremely effective in such cases. While different software applications vary, the general theme is the software learns from review to identify what is relevant and what is irrelevant.
One way to help train Predictive Coding on what is irrelevant, is to search for substantive information not relevant to the case. For example, if you have a construction defect case and every project the contractor worked on was added to the database (overly broad collections happen and not everyone removes such data in processing), code the irrelevant projects as such (and ultimately have them removed from the database to reduce costs). Other methods are to search and tag emails from newsletters and advertisements as irrelevant. There are other methods as well to help identify irrelevant information, so these are just examples.
Conducting faceted searches layered with data identified from Predictive Coding is also a very effective way to zero in on responsive information. Searches are run over the possibly relevant information, thus any review is focused and helps train the system for what could be relevant to the case.
There are many ways to identify relevant electronically stored information that further Federal Rule of Civil Procedure Rule 1 and proportionality. None of these methods should require a brute force manual review of each individual record, because no one should have to spend years on document review.
Jack Halprin was a great legal mind in eDiscovery. Jack was smart, had a sharp sense of humor, and a profoundly decent person. His passing leaves a void for those who called him friend.
I met Jack shortly after I began my career in eDiscovery in 2006. One of his colleagues said his nickname was “Happy Jack,” because of his cheerful personality. I found his nickname to be extremely accurate. Every project with him was a grand adventure.
We first presented together at CEIC, focusing on how to preserve electronically stored information and computer forensics. We had a seminar series together where we went from computer forensics to the Federal Rules of Civil Procedure and trial presentation. I had a lot of fun on that series with Jack.
Jack unknowingly called me with a job prospect within an hour of my mother’s death. He knew I had been laid off and was looking for a new job. He called out of thoughtfulness and offered kind words for my mother’s passing.
Those who knew Jack will miss him. I offer his family my sincere condolences. Jack was an outstanding human being who left this Earth far too early.
We have Geek Judges. I love those Jurists. We also have Judges who love sports. I have a gut feeling it would be fun to go see a baseball game with Magistrate Judge Young B. Kim.
Bagwe v. Sedgwick Claims Mgmt. Servs., is a case where the prevailing party sought eDiscovery costs against an individual plaintiff. The Court took the mound for its analysis of the Defendants’ arguments with the following wind-up:
Defendants take several different swings to recover their costs related to ediscovery. Defendants first swing for the fence and seek $57,858.94 for the entirety of their ediscovery costs. They miss.
Bagwe v. Sedgwick Claims Mgmt. Servs., 2015 U.S. Dist. LEXIS 8809, at *15 (N.D. Ill. Jan. 27, 2015).
Get out the peanuts and crackerjacks, because Judge Kim was just getting warmed up.
As with many eDiscovery cost cases, the Court stated that the Defendants were “vague” about how the sum of $57,858.94 was determined. The Court cited that the costs pertained to obtaining and culling 422.05 Gigabytes of data down to 25 Gigabytes. Bagwe, at *15-16.
The Defendants argued they used “eDiscovery techniques” and were able to identify “even better” data than the prevailing Defendants in the In re Aspartame Antitrust Litigation, 817 F. Supp. 2d 608, 614-15 (E.D. Pa. 2011). Bagwe, at *16.
Defendants unsuccessfully argued that cases such as “Race Tires, Rawal, and Johnson were all wrongly decided” and that the facts of the current case justified cost recovery. Id. The Court answered this argument as follows:
Defendants’ assertion that Race Tires, Rawal, and Johnson were wrongly decided may be brushed aside because they do not offer any reasons why these cases were wrongly decided or why this court should not follow them. They merely urge the court to award all of their e-discovery costs because “[t]he equities demand [Bagwe] be held fully responsible.” But Rule 54 is not a discovery sanction tool.
Bagwe, at *16-17.
The Court continued the baseball metaphor with, “Defendants next swing for a double and argue that if the entire amount cannot be recovered, they are entitled to at least $7,953.90, which represents the cost of “gather[ing] emails with metadata intact . . . by creating forensic images and then extracting the .pst files into .msg files,” which they say amounts to converting the files into a “readable format.” Bagwe, at *17.
The Court stated this argument was again a miss, because the Defendants did not explain how “the act of gathering e-mails that include metadata is different from other types of non-taxable ‘gathering.’” Id. As stated in prior decisions, “gathering, preserving, processing, searching, culling, and extracting of ESI” are not recoverable. Id.
The Court rejected the Plaintiff’s argument that the only recoverable costs were a $67 thumb drive. Bagwe, at *17-18.
The Defendants did get a hit with their final eDiscovery cost argument on “copying.” As the Court explained in its analysis of exemplification in Section 1920:
Costs for “exemplification and the costs of making copies” through photocopying and the conversion of ESI into a readable format are two sides of the same coin: namely, the pre-and-post digital era approach to “copying,” or creating readable documents that may be transmitted to the party requesting the information. The court notes that Section 1920(4) does not employ the phrase “making photocopies,” which is commonly understood to mean making paper copies, but employs the phrase “making copies of any materials,” which is a much broader phrase with more diverse meaning. Accordingly, Defendants are entitled to recover $7,266.40 in ediscovery costs.
Bagwe, *18-19, referencing Massuda v Panda Express, Inc, 2014 U.S. Dist. LEXIS 4956, at *6.
$7,266.40 is a good base hit in the world of eDiscovery cost recovery.
Bow Tie Thoughts
First things first: I cannot wait for baseball season.
From a philosophic point of view, I agree with the Defendants that there should be greater recovery for eDiscovery costs. However, no one can cite “Josh thinks so,” in a motion and a Court will simply agree with me.
Proving eDiscovery costs were necessary for litigation and required for productions take invoices that explain what steps were taken and why. Even then, expert affidavits would still need to be prepared to explain to the Court why those eDiscovery technologies were used. Even if a party provided a Judge with the educational background on why those technologies were applied to the data, and how processing IS making copies, there is no guarantee such a report would knock the argument out of the ballpark.
Do I think there should be greater cost recover in eDiscovery costs? You bet. I also think Pablo Sandoval should have stayed with the Giants, but that did not happen. I often have the same melancholy feelings about parties not being able to recover hosting or processing costs as the Panda leaving San Francisco.
As 2014 draws to a close, it is time to reflect on the cases from this year in eDiscovery. One of the biggest trends I took away from caselaw in 2014, is that more Judges have a greater understanding of eDiscovery, resulting in practical opinions.
Here are the practice areas I found to be the most interesting in 2014, which can be heard in full on my 2014 eDiscovery Year in Review on iTunes or Buzzsprout (Presented by Paragon):
Application of Proportionality Analysis
Judges Questioning Why The Court Was Asked Permission to Use Predictive Coding
We still have Form of Production issues eight years after the 2006 eDiscovery Amendments to the Federal Rules of Civil Procedure
The Importance of Documenting Services for Taxation of Costs
What will 2015 hold for us in the world of electronic discovery? I think we will see proportionality analysis focus on the value of the information sought in relation to the case and not solely just the cost of the discovery. Parties will have to explain how the information is useful, such as how it relates to a claim, opposed to merely saying, “It is expensive.” This will require counsel to focus on the merits of the case and how the requested discovery will help advance the litigation.
I personally hope litigants stop asking Judges for permission to use predictive coding. No one asks, “Can I de-dup the data? Is it ok to use clustering? May I please use conceptual search in addition to keywords?”
The issue with all productions is whether or not the production is adequate. In my view, parties going to war over predictive coding as a means to review electronically stored information is asking the Court to issue an advisory opinion. The time to fight is when the there actually is a dispute because a production is lacking, instead of engaging in arguments of how much a human being can read in an hour compared to a computer algorism.
To learn more on the issues from the past year, please check out my 2014 eDiscovery Year in Review audio podcast on iTunes or Buzzsprout.
I want to thank Paragon for sponsoring the 2014 eDiscovery Year in Review. Please check out their website and recent blog post on the Convergence of eDiscovery and Information Security to learn more about their services.
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