Proportionality in Email Searches

Proportionality analysis is making its way into judicial opinions with outright citing the Federal Rules of Civil Procedure. US District Court Judge Robert Bryan in Washington limited additional searches of email based on proportionality and overbroad search requests. Moore v. Lowe’s Home Ctrs., LLC (W.D.Wash. Feb. 19, 2016, No. 14-1459 RJB) 2016 U.S. Dist. LEXIS 20630, at *14-16.

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The Plaintiff argued that the Defendant’s email searches were inadequate, because the Plaintiff had emails in their possession that the Defendant did not produce. Moore, at *14. The Plaintiff made the next logical argument that 1) the Defendant should demonstrate that it has done a diligent search; and 2) Defendant should conduct additional searches using terms requested by Plaintiff. Id.

The Plaintiff argued that the new searches should have been conducted without the Plaintiff’s first and last name on each of the witnesses’ email accounts. Id.

That sounds like a totally normal course of action. Unfortunately, the Court did not agree.

The Defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074. The Defendant further argued that the relevant emails from 2012 were likely deleted. Furthermore, the Defendant had conducted the searches, review, and interviews to find similar claims to that of the Plaintiff. Moore, at *14-15.

Here is the crux of the Defendant’s argument: Using 88 new search terms that included annoy*, bull, click*, dad, date*, hand, rack, rod, box, would result in hundreds of thousands of irrelevant emails. Moore, at *15.

Judge Bryan held:

Plaintiff’s request for email searches is overly broad and not proportional to the case. Plaintiff refers to a multi-plaintiff case to support her assertion that Defendant should conduct searches without using Plaintiff’s name. Searching without the use of Plaintiff’s name would not be proportional in this single-plaintiff case. While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.

Moore, at *15-16.

Bow Tie Thoughts

I understand the Judge’s order, but would have recommended a meet and confer over search terms. In my experience, having ONLY 21,000 emails from 17 custodians is a very tiny amount of data. I have worked on cases with 6 to 10 people generating over 300,000 emails on more than a few cases. Given the fact the case involved a single plaintiff, it is very likely that is a reasonable amount of email. A lot would turn on the amount of time the email communications covered.

It is not clear if either side had experts explaining the search terms in affidavits. I agree 88 search terms that include terms like “hand” would generate overly broad results, unless it was limited, such as by specific dates or individuals. It might have been a better plan to bring a motion to compel search strings opposed to individual terms. The results could have been validated with a search term efficiency report, so the attorneys would know how many results would be generated by each search. For there, the parties could negotiate down to what would be reasonable search string requests. However, it is tough to know if that would be the right plan without more information on the case.

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.

 

Native File for Cloud Email

A producing party claimed that it was “impossible” to produce Gmail in Native File Format because, “Gmail account user and Google does not permit its users to copy e-mails and documents in native format.” As such, the Defendant produced the gmail emails by forwarding them to the Plaintiff. Sexton v. Lecavalier, 2014 U.S. Dist. LEXIS 50787, 5-8 (S.D.N.Y. Apr. 11, 2014)

The Plaintiff disagreed and countered the emails could be produced by either 1) downloading the messages to a program like Outlook or 2) Gmail e-mails that have been displayed [6] in their “original” format by clicking “show original” on the Gmail website and subsequently saved as PDF files. Sexton, at *6.

The Plaintiff’s declaration explained in detail methods for exporting email. Id.

The Court stated that even though producing “cloud” email might be difficult, that did not “absolve him of his obligation to produce documents in a reasonably useable format.” Sexton, at *6.

The Court proceeded to recount the value of metadata and production methods to prevent the degradation of valuable metadata. Sexton, at *7, citations omitted. The Court stated the following on the Defendant’s production obligations:

In the context of a request for native e-mails stored with a third-party provider, a functionally native format that preserves relevant metadata, such as those formats that can be generated through an e-mail client like Microsoft Outlook or through e-discovery collection software, should generally suffice.

Sexton, at *7-8.

Bow Tie Thoughts

Attorneys have to get used to the reality that collecting cloud email will require the use of either a computer forensic expert. There are multiple ways to collect cloud email, with one method being to download the email to Outlook, followed by the email then being defensibly collected. Other applications can collect directly from the cloud. Regardless of the method used, the custodian should not do the collection. Self-collection often results in self-selection. Self-selection can end with relevant email not being produced.

 

Control of Personal Email Accounts & Litigation Holds

Puerto Rico once again has issued a thought provoking eDiscovery opinion. It’s about time we hold a conference there.

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The Court found the Plaintiff had offered sufficient evidence that the Defendant had a duty to preserve the personal email accounts of its former officers. The Court explained the email accounts were within the Defendant’s control because the officers had used the accounts for as along as seven years to manage the company. P.R. Tel. Co. v. San Juan Cable Llc, 2013 U.S. Dist. LEXIS 146081, at *4-5 (D.P.R. Oct. 7, 2013). Since the Defendant likely knew its managing officers were using personal email to conduct business, the duty to preserve included those accounts. Id. 

Sending smsThe Court did not grant the Plaintiff’s motion for adverse inference instructions, because there was no bad faith nor a showing of prejudice. P.R. Tel. Co., at *5.

The Defendant had issued a litigation hold within a month of the lawsuit.

Moreover, it appeared that only three email chains were “lost.” P.R. Tel. Co., at *6. 

While the Plaintiff could show three email chains were missing, it could not offer a clear theory on how it suffered any prejudice. P.R. Tel. Co., at *7.

Judge Bruce J. McGiverin ended the opinion with this legal foreshadowing:

Upon further discovery, more information regarding the extent of spoliation may come to light. Forensic analysis of these three former employees’ personal email accounts and computers may be appropriate to determine whether critical emails have been deleted. Nacco Materials Handling Grp., Inc. v. Lilly Co., 278 F.R.D. 395, 406 (W.D. Tenn. 2011) (“The only way to determine if relevant evidence currently exists or previously existed and was lost destroyed is to conduct a forensic examination to see if such evidence exists.”). At that time, plaintiff may renew its motion for sanctions if circumstances so warrant.

P.R. Tel. Co., at *7.

Bow Tie Thoughts

This case makes me think of one big issue: BYOD.

If an employer knowingly enables an employee to use a personal device for work, there is a duty to preserve what is relevant off of the device in a lawsuit. This could get ugly fast in litigation, as attorneys and experts debate doing targeted collections off of a personal device vs a mirror image.

If a company has Bring Your Own Device policies, they better have litigation plan that includes preserving any relevant information. It might be easier to simply have a work issued smartphone.

As to the personal email account issue, this would raise interesting collection issues. Email messages with eBay alerts, online dating or kid’s soccer games are highly unlikely to be relevant to a lawsuit. A data collection strategy could include targeting messages with work topics, specific individuals, date ranges and other narrowing methodologies. Early Case Assessment or data clustering technology would be very helpful in identifying relevant ESI.

You just need to compel the employee to turn over their passwords.

Understanding the Scope of the Duty to Preserve

The important litigation hold cases are not the ones that issue monstrous sanction awards; The important cases are the ones that demonstrate the analytical framework to understand how the law works. These are the opinions that help us represent our clients in knowing what to do when litigation is reasonably anticipated.

Magistrate Judge Paul Grewal’s opinion in AMC Tech., LLC v. Cisco Sys., is such a case that breaks down the duty to preserve, triggering events and the timeline of facts. I think it is extremely helpful in understanding the scope of the duty to preserve.

Judge Grewal opened his opinion with the following:

Ten years after Judge Scheindlin woke up the legal world from its electronic discovery slumber in the Zubulake series, plenty of other courts now have weighed in on when the duty to preserve electronic evidence attaches. With varying degrees of sophistication, most parties have gotten the basic message: the duty begins at least no later than the day they are sued and told about it. Less understood is exactly what a party must then do and by when. For example, while a suit against a particular CEO for sexual harassment would pretty clearly require that his relevant data be locked down at least by the time the company gets wind of the complaint, what must counsel do about less obvious players in a more abstract dispute? The motion before the court presents just such a question.

AMC Tech., LLC v. Cisco Sys., 2013 U.S. Dist. LEXIS 101372, 1-2 (N.D. Cal. July 15, 2013) [Emphasis added].

Here is the basic factual scenario of the case:

Defendant had a team negotiating a contract and royalty payments;

Employee not on the team contributed sales data for lead negotiator’s royalty payment schedule;

Employee kept his sales data on his computer and email;

Employee communicated by phone and email to negotiator;

Employee retired four days before Plaintiff files lawsuit;

Employee’s computer was wiped within the 30-day policy after someone leaves the company;

Neither party listed Employee as a custodian;

Defendant sought information from Employee slightly over one year from the filing of the lawsuit.

AMC Tech., LLC at *3-4.

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The Plaintiff sought adverse inference instruction against the Defendant for what it called “reckless destruction of documents created by a key decisionmaker.” AMC Tech., LLC at *5.

The Court summarized its inherent authority over spoiliation as follows:

The court has “inherent discretionary power to make appropriate evidence rulings in response to the destruction or spoiliation of relevant evidence,” which arises out of its inherent power to direct “orderly and expeditious disposition of cases.” The range of appropriate sanctions is broad, and may take form in relatively minor sanctions, such as the award of attorney’s fees, to more serious sanctions, such as dismissal of claims or instructing the jury that it may draw an adverse inference. The court’s discretion is not, however, unbounded — it must weigh a number of factors to determine whether to grant sanctions, and if so, tailor the remedy according to the conduct that triggered the sanction. To determine whether to award spoiliation sanctions, the court considers whether the moving party has established: “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

AMC Tech., at *6-7.

The Court had to answer the following question: Did the Defendant have an obligation to preserve the Employee’s computer/email at the time the ESI was destroyed?

The Court explained that there was “no question” that the ESI had to be preserved when the Plaintiff requested the ESI. This was not possible, since the ESI had been destroyed approximately 11 months earlier as part of the Defendant’s routine policy when an employee left the company. AMC Tech., at *7.

Had the duty to preserve already attached to the ESI prior to its deletion?

The Court explained the scope of the duty to preserve as follows:

A general duty to preserve evidence relevant to the litigation arises from the moment that litigation is reasonably anticipated. Because Cisco received notice of the complaint before McKeon’s documents were destroyed, and concedes that it had notice of the suit even before AMC filed the complaint on July 11, 2011, Cisco had a general duty to preserve evidence when it destroyed McKeon’s documents.

But the scope of this duty is not limitless. A litigant has an obligation to preserve only evidence “which it knows or reasonably should know is relevant to the action.” This duty requires a party to “identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation,” which includes identifying “key players” who may have relevant information and taking steps to ensure that they preserve their relevant documents. It is critical to underscore that the scope of this duty is confined to what is reasonably foreseeable to be relevant to the action. Requiring a litigant to preserve all documents, regardless of their relevance, would cripple parties who are often involved in litigation or are under the threat of litigation.

AMC Tech., at *7-9 [Emphasis added].

What did this mean for the Defendant and retired Employee? The Court explained the following:

AMC’s complaint plainly put Cisco on notice to identify and preserve documents that generally might reasonably be relevant to the AMC-Cisco Agreement, the Siebel Adapter, and the UCCX Connector. But should Cisco have known specifically that McKeon was a “key player,” such that his documents, just days before their demise, were relevant to the case? McKeon was an unlikely candidate to have documents relevant to the Agreement because he did not engage in negotiations of the Agreement in any way. Nor did he work on any internal committees deciding whether to commence the UCCX Connector project. He was merely the product manager for the underlying Cisco UCCX product. Although McKeon’s input might have informed Nijenhuis’ computation of the royalty schedule in the Agreement, which might be relevant to the issue of damages, these documents are only tangentially related to even that question because AMC does not allege that the royalty payment schedule was incorrect. Nothing in the complaint suggests that AMC would be making such a claim. Because Cisco could not reasonably have known that McKeon’s documents would be at all relevant to the litigation when those documents were destroyed, there was no duty to preserve them at that time.

AMC Tech., at *9-10.

The Court rejected the Plaintiff’s argument that the retired Employee was a “key player” that justified harsh sanctions. The Court zeroed in on the fact the Employee was just a project manager who had no role in the contract negotiations. Moreover, his data was not unique, because the Defendant produced its internal financial spreadsheets pertaining to the sales of the subject devices. Those files likely were created by the Employee. AMC Tech., at *12-13.

The Court held there was no prejudice to the Plaintiff and that the sanctions sought establishing full liability for the breach of the agreement to be “wholly inappropriate.” As such, the Court denied the Plaintiff’s motion.

Bow Tie Thoughts

Many litigation hold cases often have a theme where a party seeks to have the opposing party drawn and quartered for missing a tangential custodian. While Courts are supposed to get to the truth of a matter, they are not supposed to be a medieval battleground whenever a custodian is missed, but the relevant data still appears to have been produced. This is not the time to release the dragon to rain fire.

Litigation hold cases are fact intensive. They require asking the age old questions, “What did the President know and when did he know it?” This can require not just custodian interviews, but using ECA technology to see communication patterns to identify the key players involved in the dispute.

Judge Grewal conducted very detailed analysis on the timeline on this case and applying those facts to the law. This case is an excellent way to teach the scope of the duty to preserve. I encourage attorneys to read the full opinion.

Drop-by-Drop Water Torture Productions

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States:

At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents. The court now enters a preclusion order prohibiting the United States from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced by the date of compliance with this order.

Botell v. United States, 2012 U.S. Dist. LEXIS 134265, 15-16 (E.D. Cal. Sept. 18, 2012).

Botell v. United States is a wrongful death and personal injury case involving a minor injured and another killed at a National Park. The Government produced over 7,000 pages of documents, but there was a “a glaring lack of production of emails from defendant’s agents and employees.” Botell, at *11-13. Moreover, the total number of custodians produced by the Defendant totaled one.

The Plaintiffs argued five other relevant custodians’ emails needed to be produced, because the custodians were referenced in the already produced ESI. Botell, at *11.

The Defendants produced one declaration by the Chief Ranger at the park, which explained his efforts to find responsive email.

These efforts included “searching” the office and network drives, and the Ranger’s coordination with officials and IT personnel at another National Park to search another custodian’s computer. The declaration was silent on any search for emails by the other custodians. Botell, at *11-12.

Another declaration curtly explained the back-up policy for Lotus Notes emails as follows: “[B]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.” Botell, at *12.

The Court ordered the Defendants to provide a declaration explaining the searches conducted to locate physical and electronic copies of responsive emails by the five custodians. The Court specifically required the following:

The declaration shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.

Botell, at *12-13.

Bow Tie Thoughts

Nothing goes for the jugular like a preclusion order for failing to produce discovery. Botell is a powerful example of the dangers of what appeared to be “do it yourself” collection. While it was not outright stated the Defendant did not have an eDiscovery collection expert, it sure sounds that way from the context of the declarations.

One would hope when a large organization has a triggering event for a lawsuit, an effective litigation hold is enacted. Many of today’s records information management systems have the ability to electronically sequester a specific custodian’s email and ESI with a keystroke. Additionally, much of this technology has Early Case Assessment and data reduction features that can identify the relevant information for attorneys to review.

An organization should either have professionals trained in the search and preservation of ESI or retain outside professionals to competently preserve ESI. The steps taken to search and identify responsive ESI must be documented and should, at a minimum, explain the search methodology; technology used; data sources searched; search results; possible exclusions or exotic files; and anything else relevant to explain to a judge how ESI was searched.

A requesting party should not have to blink “torture” in Morse Code for a judge to stop a party neglecting their discovery obligations. An attorney’s duty of competency should compel their preservation obligations are met with those trained to effectively find and produce responsive discovery.

You Do Have to Look for Discovery in Your Possession

A Producing Party (the Defendant) argued against searching for responsive electronically stored information, claiming “that the mere fact an employee might have discoverable information or relevant knowledge does not necessarily mean she possesses relevant documents.” McNearney v. Wash. Dep’t of Corr., 2012 U.S. Dist. LEXIS 108386, 14-16 (W.D. Wash. Aug. 1, 2012).

Negative inductive reasoning aside, Federal Rule of Civil Procedure Rule 34 requires a party “to produce requested documents if they are within his ‘possession, custody, or control.'” McNearney, at *14, citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 165 n.6 (1980) (Stevens, J., concurring in part and dissenting in part).

The Producing Party did not challenge that it failed to search for responsive electronically stored information from “numerous employees identified as likely having discoverable [information],” but took the position that just because it was possible the custodians had relevant information, did not mean they actually had the relevant information.  McNearney, at *14.

The Court agreed with the logic, but that did not give the Producing Party a free pass on its duty to make a reasonable inquiry, especially considering the fact the Producing Party identified the employee as likely having relevant information. Id.

Further causing problems for the production, was a difference in email messages produced by the Defendant and two other Defense custodians, suggesting that there had not been a reasonable search for email by one of the Defense custodians. McNearney, at *14-15.

The Producing Party also conceded that it did not produce email attachments and that its search scope was narrower than the Plaintiff’s discovery requests. McNearney, at *15.

The Court held the following on the Defendant’s search:

Defendant’s production of some documents in response to RFP No. 5 does not satisfy its duty to make a reasonable search for and produce all responsive documents in its possession, custody, or control. Despite its original objection that RFP No. 5 was unduly burdensome because it was “a trap for Defendants,” DOC has not demonstrated that conducting a thorough search for responsive ESI would pose an undue burden or cost, as required in responding to a motion to compel. Fed. R. Civ. P. 26(b)(2)(B).

McNearney, at *15-16 (Emphasis added).

Bow Tie Thoughts

A party must demonstrate undue burden to limit discovery. This does not include an argument “that just because there might be something relevant, does not mean there is something relevant.”  While that is true in a logical discussion during a philosophy class, the Federal Rules of Civil Procedure are not an exercise in metaphysical nihilism to circumvent a party’s duty to conduct a reasonable search for responsive ESI to a discovery request.

The Federal Rules of Civil Procedure require ESI to be produced as it is ordinarily maintained or in a reasonably useable form. By the plain language of “ordinarily maintained,” a producing party cannot break the parent-child relationship between email messages and their attachments (or Tweets and Hyperlinks or text messages with photos).  Additionally, a production that breaks the parent-child relationship is not in a “reasonably useable form,” since searching for an attachment to its corresponding message is like re-unitizing a document that has had its staples removed and the pages shuffled with 1,000 other pages.

The technology to collect, search and produce electronically stored information are well established now after a decade of being available. These products are common services offered by eDiscovery service providers and many law firms have brought these technologies in house. While electronic discovery has many challenges, there are solutions available to these challenges that are affordable.