Let’s Go to Law School: High School Mock Trial Practice

High School students across California are preparing for the fictional case of People v Shem. Lawyers and teacher-advisors are spending significant time helping students prepare for this mock trial that involves art, grand larceny, four exhibits, detailed expert testimony, and issues of whether a search was Constitutional.

SCHS_Scrimmage_7405

I have coached the Santa Clara High School team for five years. We were extremely fortunate to use the Santa Clara University Law School moot courtroom to host a practice with Gregori over Martin Luther King weekend. The students were able to secure the moot courtroom as a thank you for assisting as witnesses for mock trial tournament the law school hosted last year.

WitnessDirect

This was a wonderful opportunity for the students to test their trial advocacy skills outside of a classroom setting. The students learned what worked well from their months of practice and areas of improvement. The tournament begins in February, so the next few weeks will have very focused practice.

I want to thank Santa Clara Law, Santa Clara University, for this wonderful opportunity for my students.

Can Retaining Liens Attach to eDiscovery Databases?

Recovering attorney’s fees and costs is one of the more unpleasant aspects of the practice of law. In situations where an attorney has not been paid, a retaining lien gives “the attorney the right to retain possession of the client’s documents and files which come into the attorney’s hands during the course of employment until the balance due for the attorney’s services is paid.” Cronin & Co., Ltd. v Richie Capital Mgmt., LLC, 2014 IL App (1st) 131892-U, ¶¶ 21-32 [2014], citing In re Liquidation of Coronet Insurance Co., 298 Ill. App. 3d 411, 415, 698 N.E.2d 598, 232 Ill. Dec. 507 (1998).

An attorney has to be in continued possession of the client’s property in order to maintain the lien. Id.

Future-Review

Can a retaining lien be held over client data in an online review application hosted by a service provider?

The answer appears to be yes.

While the case facts are substantially detailed, here are the basic events: Attorney is retained as counsel and the attorney retained an eDiscovery service provider to host client files for review. The service provider was contracted to work for the clients, however, it took created the database and took directions from the attorney, thus imputing control to the law firm. Cronin & Co., Ltd., P22-23.

The fact the client information was given to the service provider for hosting did not mean the attorney surrendered possession of that information, which would have destroyed the retaining lien. Cronin & Co., Ltd., P23.

As one can imagine, most lawsuits do not have issues with retaining liens unless there is a dispute. The short story of what happened is representation ended, there was a dispute,  and the attorney sought the client information from the service provider. This put the service provider into a very unpleasant situation on what to do, where the attorney sought injunctive relief to have the client information retained to the lawyer (the facts in the opinion are very detailed, so this is an abridged version).

Whether or not the District Court abused its discretion in granting a temporary restraining order or preliminary injunction was a large part of the case analysis in ordering the service provider to turn the database over to the attorney. The Court vacated and remanded with instructions for the District Court to enter findings the preliminary injunction factors in regards to the balancing of hardships. Cronin & Co., Ltd., P31.

Bow Tie Thoughts

Disputes over fees with clients are not fun. The idea of being a service provider stuck in the middle of a fight between a client and an attorney is extremely undesirable.

I discussed with an attorney who represented a service provider in a fee dispute over hosting fees against a law firm. The lawyer had a novel concept of arguing the work product doctrine did not apply to the attorney work product in the database because his client’s agreement with the law firm was vague, thus they would seek a lien on the server with the client data and attorney work product, and then sell the information to the opposing party in the lawsuit.

This was the single worst idea for conflict resolution I have ever heard. No lawyer would ever work with a service provider that argued work product was not protected by the work product doctrine. Moreover, the idea of selling client information and attorney work product would ensure a service provider is forever on every law firm’s black list in the country. Such tactics would likely violate ethical rules of conduct, the Stored Communication Act, plus possibly other laws.

The current case is extremely different. It will be interesting to see the balancing of hardship analysis on remand.

What Did We Learn About eDiscovery in 2014?

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.

Why Deviate from Native Files in a Case Management Order?

ConjectureThere are Case Management Orders that show parties spent a lot of time considering eDiscovery issues. There are the ones that show a lack of thought. There are ones that are mixed.

This one shows a lot of forethought, but I am puzzled by the form of production.

Technology Assisted Review is Good for You and Me

There is nothing magical about using Technology Assisted Review. There is also no rule requiring specific technology to find responsive electronically stored information. The issue is always one of whether a production was adequate.

The Case Management Order in Green v. Am. Modern Home Ins. Co., states the following on Technology Assisted Review:

  1. Technology Assisted Review in Lieu of Search Terms. In lieu of identifying responsive ESI using the search terms and custodians/electronic systems as described in Sections II.C & II.D above, a party may use a technology assisted review platform to identify potentially relevant documents and ESI.

Green v. Am. Modern Home Ins. Co., 2014 U.S. Dist. LEXIS 165956, 4 (W.D. Ark. Nov. 24, 2014).

I would argue such a decree in a Case Management Order is unnecessary under the Federal Rules of Civil Procedure and case law, but such a specific order should preemptively end any question on whether predictive coding, data analytics, “find similar,” conceptual search, and any other available search technology can used in the case.

The Form of Production

I am not a fan of converting native files to TIFFS and conversion to OCR, absent the need to redact confidential or privileged information. That is exactly what this order proscribed, minus spreadsheets:

  1. Format. All ESI, other than databases or spreadsheets, shall be produced in a single- or multi-page 300 dpi TIFF image with a Concordance DAT file with standard delimiters and OPT file for image loading. The documents shall also be processed through Optical Character Recognition (OCR) Software with OCR text files provided along with the production. Extracted Text shall be provided for all documents unless it cannot be obtained. To the extent a document is redacted, OCR text files for such document shall not contain text for the redacted portions of the document. Each TIFF image will be assigned a Bates number that: (1) is unique across the entire document production; (2) maintains a constant length across the entire production padded to the same number of characters; (3) contains no special characters or embedded spaces; and (4) is sequential within a given document. If a Bates number or set of Bates numbers is skipped in a production, the Producing Party will so note in a cover letter or production log accompanying the production. Each TIFF image file shall be named with the Bates Number corresponding to the number assigned to the document page contained in that image. In the event a party determines that it is unableto produce in the format specified in this section without incurring unreasonable expense, the parties shall meet and confer to agree upon an alternative format for production.
  1. Metadata. To the extent that any of the following metadata fields associated with all applicable documents are available, the Producing Party will produce those metadata fields to the Requesting Party: file name, file size, author, application date created, file system date created, application date last modified, file system date last modified, date last saved, original file path, subject line, date sent, time sent, sender/author, recipient(s), copyee(s), and blind copyee(s). For emails with attachments, the Producing Party will indicate when a parent-child relationship between the message and the attachment exists. A Producing Party shall also produce a load file with each production with the following fields: Starting Bates; Ending Bates; Begin Attach; End Attach; and Source (custodian/location from which document was collected). If any metadata described in this section does not exist, is not reasonably accessible, is not reasonably available, or would be unduly burdensome to collect or provide, nothingin this ESI Order shall require any party to extract, capture, collect or produce such metadata.

Green, 4-7.

The order does included extracted text, but why go to the trouble of requiring production as TIFFs in the first place? The statement about OCR could be misconstrued to requiring OCRing the TIFFs when any searchable information is already available on the form of extracted text, thus OCRing is both redundant and adds cost. The only reason to OCR a TIFF is because it needs to be redacted, because producing extracted text would inadvertently produce the redacted content.

Most review applications today do a great job of ingesting native files and allowing users to review in near-native. If the native file needs to be accessed, most applications allow for reviewing the native within the review application or a copy downloaded for review in the native application.

Requiring conversion to static images is not the default of Federal Rule of Civil Procedure Rule 34. I do not recommend requiring conversion to TIFF for production, unless there is a substantial amount of redactions that must take place.

There are many types of metadata, from embedded, to substantive, to system. The above order reflects metadata as it was objective coding, seeking specific information. While all useful information, I would encourage parties to think in more terms of types of metadata, in addition to how the information should appear in a review application.

Spreadsheets in Native File Format

The order stated the following on spreadsheets:

  1. Spreadsheets. Absent special circumstances, Excel files, .csv files and other similar spreadsheet files will be produced in native format (“Native Files”). Native Files will be provided in a self-identified “Natives” directory. Each Native File will be produced with 6a corresponding single-page TIFF placeholderimage, which will contain language indicating that the document is being produced as a Native File. Native Files will be named with the beginning Bates number that is assigned to that specific record in the production. A “NativeLink” entry for each spreadsheet will be included in the .DAT load file indicating the relative file path to each native file on the Production Media. Native Files will be produced with extracted text and applicable metadata fields if possible and consistent with Section III.A.2 above. For documents that contain redacted text, the parties may either apply the redactions directly on the native file itself or produce TIFF image files with burned-in redactions in lieu of a Native File and TIFF placeholder image. Each Producing Party will make reasonable efforts to ensure that Native Files, prior to conversion to TIFF, reveal hidden data from redacted Native Files that are produced as TIFF image files and will be formatted so as to be readable. (For example, column widths should be formatted so that numbers do not appear as “#########”.) Under these circumstances, all single-page TIFF images shall include row and column headings.

Green, at *8-9.

I am glad the default for spreadsheets did not deviate from the Rule 34. I am curious if any of my case manager friends would agree with the order requiring TIFF placeholders and renaming the native files.

The past year has seen parties become more detailed in their case management orders regarding electronically stored information. This is a good thing. However, I strongly encourage parties to not deviate from the Federal Rules of Civil Procedure without reason, leverage the search abilities of their review applications, and make sure the case management order helps the case comply with Federal Rule of Civil Procedure Rule 1.

Rule 34: As Basic As You Get

Magistrate Judge Paul Grewal is one of the new heroes of eDiscovery jurisprudence. In Venture Corp. Ltd. v. Barrett, the good Judge opened with the following on Rule 34:

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

Venture Corp. Ltd. v. Barrett, 2014 U.S. Dist. LEXIS 147643, 1 (N.D. Cal. Oct. 16, 2014).

Here is what happened: The Defendant served discovery requests on the Plaintiff and wanted the discovery and organized and labeled to identify the requests to which they were responsive; The Plaintiff did not want to do that and instead produced 41,000 pages of discovery, which ended with the Court ordering re-production for not following either Rule 34(b)(2)(E)(i) or (ii). Venture Corp. Ltd., at *1-2.

The Tactical Document Dump

tic-tac-toe-150614_1280Federal Rule of Civil Procedure Rule 34 is supposed to prevent the “document dump,” which was the attorney Cold War equivalent of a doomsday weapon.

Its deterrent was the threat of the opposing side also unleashing a document dump, introducing mutually assured destruction in civil discovery.

Discovery is not supposed to be an experiment in game theory. Discovery must be produced one of two ways under Rule 34(b)(2)(E):

1) “[A] party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” 

2) “[I]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A party need not produce the same electronically stored information in more than one form.”

Venture Corp. Ltd., at *2-3.

Apparently no one saw War Games or the Guns of August before producing discovery. This case had a telephonic meet and NOT confer where the Plaintiff claimed the Defendant agreed to accept PDFS or native files in bulk; the Defendant denied such an agreement. Venture Corp. Ltd., at *3.

usb-pen-146884_1280The Plaintiff produced on a flash drive and by email approximately 41,000 of PDF’s and native files with no index, table, or anything but folders with the aforementioned files. Id.

The Court explained that the language of Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) is clear: if documents are not organized and labeled to correspond to the categories in the request, they must be produced as they are kept in the usual course of business. Venture Corp. Ltd., at *5.

The Plaintiff did not comply with Rule 34(b)(2)(E)(i).

If a party that elects to produce discovery as it is kept in the ordinary course of business, the producing party has the burden to prove their production was made in such a manner beyond a mere claim. Venture Corp. Ltd., at *5-6.

There was substantial he said/she said about the alleged agreement on the organization of the production, with the Plaintiff claiming in an affidavit that Defendant agreed to the production of blended native files and PDFs instead of with a load file and index. Venture Corp. Ltd., at *6-7.

The Court noted that even if there was an agreement on the form of production under Rule 34(b)(2)(E)(ii), that would not absolve the producing party of its obligation to produce ESI as it is kept in the ordinary course of business under Rule 34(b)(2)(E)(i). Venture Corp. Ltd., at *7.

Judge Grewal explained the distinction between Rule 34(b)(2)(E)(i) and (ii):

This distinction matters. Form under subsection (ii) is about whether the production should be native, near-native, imaged as PDF (or more commonly, as TIFFs accompanied by load files containing searchable text and metadata) or in paper (printed out). Providing information about how documents and ESI are kept under subsection (i) “[a]t a minimum . . . mean[s] that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.”

Venture Corp. Ltd., at *7-8.

There was no agreement on the form of production, thus the Plaintiff Producing Party had a duty under Rule 34(b)(2)(E)(ii) to show that the production was either 1) as the ESI was ordinarily maintained or 2) in a reasonable form. Venture Corp. Ltd., at *8.

Judge Grewal directly summed up the reality with such a production, that “there is no serious question that a grab-bag of PDF and native files is neither how the Ventures ordinarily maintained the documents and ESI nor is ‘in a reasonably usuable form.’” Id.

The Court ordered the producing party to do the following as a remedy:

(1) Either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and

(2) Produce load files for its production containing searchable text and metadata.

Venture Corp. Ltd., at *8-9. [Bold emphasis in original].

Bow Tie Thoughts

Random files make document review a nightmare. I am a big fan of Rule 34(b)(2)(E)(i) because I want discovery organized to correspond to the responsive discovery requests.

It is very easy to set up your review database so there is an entire column with the request for production numbers, empowering the lawyer to issue code responsive discovery to each request. This column can be included in the production to the requesting party.

Some see this as extra work and unnecessary. I see it as a way to organize document review to correspond to the discovery requests in order. Moreover, from a producing party point of view, you want to know what discovery was produced as it relates to discovery request. Any of today’s review applications can issue code according to discovery request if document review is planned, which empowers the producing party to know exactly what is being produced to the opposing party.

Thank You Judge John Facciola

facciola2

Thanksgiving time is one for reflection. I have been thinking about Judge John Facciola’s impact on the world of eDiscovery with his upcoming retirement. I am very thankful we had such a dedicated judge who has been such a leader in electronic discovery.

Judge Facciola had his share big cases, but the important ones are the cases that give a nuts and bolts framework on how to actually litigate issues surrounding electronically stored information.

Judge Facciola excelled at these cases and showed a profound willingness to be hands on in solving issues, from search term efficiency to hosted repositories. The Judge’s commanding use of language is second to none, with many memorable quotes.

The good Judge is a profoundly thoughtful individual, whose interests include sailing, baseball, history, and a strong dedication to our justice system. I wanted to share a couple of stories I had with the Judge over the years.

First Time I Met the Judge

I met Judge Facciola on Super Tuesday 2008 in Washington, DC. I was in DC for a conference and had a webinar planned with him later in the month. I wanted to take the opportunity to meet him in person since I was in town.

After going through security at the Federal Courthouse, I eventually found the waiting room for his department’s chambers. Observing large format photos of boats on the wall (one was a dory) and magazine on the America’s Cup, I thought, “Cool, we can talk about sailing.”

The Judge greeted me in one of his signature bow ties. Ironically, I did not know he wore bow ties at that time. My react was simply, “Awesome.”

We had lunch in the judges’ dining room that overlooks the US Capital Building. It is still surreal to remember, seeing other judges eating lunch and discussing matters of importance. To this date it is still one of the most memorable events in my career so far.

Judge Facciola and I discussed search terms and discovery requests. I shared with him my concern that “text speak” such as “LOL” type acronyms should be included when conducting searches of text messages and instant messages. He actually sat-up and said, “I had not thought of that.”

After leaving the Courthouse, I met up with some attorney friends. We watched the Super Tuesday results at different campaign parties at some of DC’s more entertaining pubs, but that adventure is another story.

An Evening at the Cosmos Club

I visited DC in 2013 for a business trip. I contacted the Judge if he had time to meet for lunch or coffee while I was in town. He offered to meet for dinner at the Cosmos Club.

I am normally well versed in history, but I had to look up the Cosmos Club. The Club was founded in 1878 dedicated to the advancement of art, science, and literature. Its members included Alexander Graham Bell, Woodrow Wilson, and virtually every Secretary of State.

There is no question the Cosmos Club was the most regal institution I have ever entered. For me, it represented those dedicated to knowledge with a true sense of class. The library was simply majestic, where one could be lost for hours in study.

The Judge and I enjoyed a good meal, discussing the law, film, boats, and of course US History. At a prior dinner before Legal Tech 2009, we discussed the sinking of the USS Indianapolis and the unfair court martial of Captain Charles McVay III, leaving the others looking at us in respectful confusion.

While we were discussing topics from eDiscovery to President Garfield, another dinner party walked by our table. The person in the lead looked familiar, but I could not identify the dinner guest.

Once the other party was seated, the Judge said, “That’s General Petraeus.”

A True Statesman

Jessica Mederson and I invited Judge Facciola to record an Independence Day podcast for our blog The Legal Geeks. Judge Facciola truly loves the United States. The Judge shared his thoughts on the 4th of July, the meaning of Independence, and the role of the Judiciary in upholding the promise of the Declaration of Independence. Jess and I were clearly in awe of what the Judge had to say about our country and freedom.

Legacy on the Court

Judge Facciola leaves a powerful legacy of civic duty, honor, and a strong work ethic. I wish him well in his future adventures, whether they are out sailing or well-earned time with family. Thank you for your service, Your Honor.

Moreover, thank you for the tip about Beau Ties Ltd of Vermont. Wonderful collection of bow ties.

An Unsung Hero on the Form of Production

scales-303388_1280Magistrate Judge Paul Cherry is a great jurist whose opinions on the form of production should be taught in first year Civil Procedure classes.

The Judge clearly explains the Federal Rules of Civil Procedure and applies the rules to the case at bar in very concise analysis.

A Plaintiff in a recent case sought consumer credit reports in native file format, which was produced as static images. Judge Cherry provided textbook case analysis which I summarized in my Everlaw Blog guest post Really Thinking Through the Form of Production. Please check it out for my thoughts on the form of production and document review.