Stapling Proportionality

Proportionality and costs are not a great argument when you are complaining about your own databases.

Old-Data-Tape

Webb v. Ethicon Endo-Surgery, Inc., is a product liability case over a surgical stapler that misfired during a surgery, resulting in complications to the Plaintiff’s recovery. Webb v. Ethicon Endo-Surgery, Inc., 2015 U.S. Dist. LEXIS 8275, 2-3 (D. Minn. Jan. 26, 2015). The Magistrate Judge attempted surgery on the scope of discovery, resulting in the Defendant arguing the scope was too broad, and the Plaintiff arguing it was too narrow, over three specific discovery requests. The District Court upheld the Magistrate Judge’s order on the scope of discovery.

The Defendant offered a declaration from their risk manager to support their argument to narrow discovery based on proportionality. The Defendant argued that they had made the line of medical staplers for 18 years and the records were stored in multiple databases. Webb, at *14-15.

The Defendant further argued that it would cost $62,400 to search the multiple databases, which was disproportional to the Plaintiff’s damages “in excess” of $50,000. Webb, at *16. This argument failed.

The Court cited that the producing party has the burden of complying with discovery requests and “a corporation [that] has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Webb, at *16-17, quoting Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) and citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

The Court held that the Magistrate Judge properly determined the scope of discovery in evaluating the expense, burden, and likely benefit of the information sought for the subject discovery requests. Webb, at *17.

Bow Tie Thoughts

Searching databases is expensive. Many judges do not care for arguments from a producing party that searching multiple, or even dissimilar, databases make the cost of relevant discovery prohibitively expensive. This is like arguing a party should be protected from its own self-inflicted wound on how they manage different databases.

Technology is constantly improving, thus methods of storing data change over time. If a company maintains electronically stored information going back potentially decades, they should be prepared have the ability to search it in litigation in a cost effective manner.

Let’s Play eDiscovery Baseball

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.

baseball-oldschool

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.

baseball-316934_1280The 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.

Swabbing the Decks of Admissibility

Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.

tugboat

What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in “painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.” Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts “probably [were] not giving the employers a good impression,” was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible?

There are many attorneys who think of social media as an epic “gotcha” game with the opposing party. There is no question that the cases where someone who claimed a back injury has posted Facebook video of themselves riding a mechanical bull riding is highly relevant to the lawsuit. However, the fundamental issue with any social media post is it must be relevant to the case. If the information is not relevant, then it is inadmissible.

This case shows an interesting mix. Posts that were relevant to the case could be used at trial, but the Plaintiff could challenge them under FRE 403. Alternatively, testimony that was purely speculative about the Plaintiff’s posts precluding him from getting hired for another job was not admissible.

As with any evidence, ask is this social media relevant to the case? Is there a casual connection to what is trying to be proven? Performing such analysis should help save time conducting document review of social media in discovery.

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.