No, You Don’t Have to Read Everything

man-852766_1280I 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.

Guest Post on Everlaw: Is An Attorney Responsible for Manually Reviewing Discovery Before Production?

Review-TeamI prepared a guest post for Everlaw’s blog on an attorney’s ethical duty to follow a client’s instruction to manually review documents prior to production.

Is expert testimony required to show a lawyer breached their standard of care or is this issue one a jury can decide on their own?

Check out the case summary and tips on document review at Everlaw:

What is an attorney’s Duty of Loyalty to review discovery documents before producing them to an opposing party? That issue recently arose in a summary judgment battle between a client and his former attorneys.

The Case:

The client claimed that the law firm had committed malpractice because the attorneys failed to review discovery responses before production to the opposing party – after being directed to do so by their client. Things really went wrong when the client was hit with sanctions, and the law firm denied knowledge of certain documents in court. Price Waicukauski & Riley v. Murray, 2014 U.S. Dist. LEXIS 130680 (S.D. Ind.Sept. 18, 2014).

 Continue reading at Is An Attorney Responsible for Manually Reviewing Documents?

Triangulating Discovery Productions

Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).

ChartDividersThe Defendant in Banas had produced 225,000 documents in a rolling production through “triangulation.”

This methodology involved selecting subsets of employees likely to have relevant information, those who sent or received information, those who could have been involved in the case and those “most likely” to have relevant information. Banas at *4.

The Court stated this approach could have been reasonable, but two problems emerged: 1) The methodology was never discussed or agreed to with the Plaintiff; and 2) Multiple deponents did not have their email searched prior to their depositions. Banas at *4-5.

The Plaintiff also had a hard drive that contained ESI that was not produced by the Defendant. Id. 

The Court ordered the supplement search and production of ESI from the deponents whose ESI had not been searched. Banas at *6.

The Court stated that the Defendant’s search methodology was not unreasonable or designed to conceal information. Banas at *7. However, as the production was conducted on a rolling basis, the Plaintiff could not have been immediately aware of any production gaps. Banas at *6.

As such, supplemental discovery was reasonable.

The Court also highlighted the Northern District of California’s model order requiring parties to meet and confer over the search of ESI prior to responding to a discovery request. This is one of the first opinions to reference the model order. Following the model order is highly advisable for anyone in the Northern District of California. It also has very good best practices for any attorney to consider in a case with electronically stored information.

Bow Tie Thoughts

Identifying relevant custodians and their electronically stored information requires using technology and strategy. Many can feel like it is trying to find a teardrop in the ocean.  

Analyzing communication patterns, clustering email based on domain names or conducting searches based on date ranges and subject matter are just a handful of ways to identifying ESI that could support a parties claims or defenses. Running searches based on discovery requests is another.

I recently had a product demonstration of Kroll Ontrack’s eDiscovery.com Review. Below you can see the features of this product can help search for responsive ESI.

Banas v. Volcano Corp., also has a very important message about the meet and confer process. Parties really should discuss what information is subject to the lawsuit, relevant custodians and search methodologies. While I do not agree with the idea of discussing what tools parties should use, because it can cause unnecessary fighting, agreeing on how ESI will be identified certainly does not hurt between educated attorneys.

 

Clawback Agreements to Eliminate the Burden of Privilege Review

F14DiveI am gonna to hit the brakes, he’ll fly right by me.

Maverick, Top Gun

You’re gonna do what?

Merlin, Top Gun

Attorneys feel compelled by their duty of competency to their clients to have eyes on every document that might be privileged.

SurprisedWoman

Given cases such as J-M Manufacturing it is easy to see why attorneys are concerned about privilege review in large document review cases.

If an associate attorney were to tell a partner she could rely on a clawback agreement and not conduct privilege review, it is a safe bet the partner would respond as Merlin did to Maverick in Top Gun.

In re Coventry Healthcare, Inc. v. This Document Relates involved issues of undue burden in producing electronically stored information. The Defendants argued that the Plaintiff’s proposed search terms produced “hits” of nearly 200,000. The Defendants claimed the estimated cost to process, host and review the data for responsiveness and privilege was approximately $388,000. In re Coventry Healthcare, Inc. v. This Document Relates, 2013 U.S. Dist. LEXIS 39050, at *14 (D. Md. Mar. 21, 2013). Accordingly, the Defendants sought relief under the proportionality principles of Rule 26(b)(2)(C)(iii).

The parties to their credit had negotiated over search terms to ease the burden on the Defendants (and ultimately themselves in what the Plaintiffs would have to review).

The Court made what some would consider a surprising statement: [A] clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. In re Coventry Healthcare, Inc., at *16. As such, the Defendants failed to show undue burden in producing electronically stored information.

Crusher Claw

The Court’s ruling is not the first time such an order was given. As stated in footnote 6, former Magistrate Judge (now District Court Judge) Paul Grimm found that “the more practical approach is to avoid the necessity of an expensive and time-consuming privilege review by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document.” In re Coventry Healthcare, Inc., at 14-15, fn 6, citing Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

The Court granted the Plaintiff’s motion to compel and invited the Defendants to confer with the Plaintiffs on a clawback order if they wanted one.

Bow Tie Thoughts

There are several thought leaders who have argued that the cost of privilege review can be eliminated with protective orders and clawback agreements. While having both is definitely a good idea, many attorneys feel terrified at not conducting some sort of privilege review.

One option to privilege review is to leverage technology-assisted review in identifying potentially privileged ESI. I would still always recommend a clawback agreement and potentially a protective order, depending on the subject matter of the ESI. However, TAR such as predictive coding could be used to identify potentially privileged material. Generally speaking, many attorneys have an idea what sort of communications or files will be protected by a privilege. Leveraging technology to identify attorney-client communications, intellectual property, or personal identifiable information can enable the data to be organized based on both privilege and responsiveness. This allows the attorneys to review data that is potentially privilege, if they are so inclined to have eyes on such ESI.

Hands-on eDiscovery: California Seminar on Responding to Discovery Requests

I had the good fortune to organize a seminar on responding to electronic discovery requests for the Santa Clara County Bar Association’s Civil Practice Committee on February 27, 2013. However, this seminar was different from other eDiscovery CLE’s, because the attendees spent a full hour conducting searches for responsive ESI to requests for production. The speakers included Santa Clara County Judge Socrates Manoukian (currently assigned to civil discovery), Tyler Atkinson of McManis Faulkner and Charlie Kaupp of Digital Statra.

Our seminar first focused for one hour on the California eDiscovery Act, California Rules of Court on eDiscovery, search and strategies for conducting document review.

Unfortunately, there is very little published California case law on eDiscovery. We have two main cases to explore, specifically Toshiba America Electronics Components v. Superior Court, 124 Cal. App. 4th 762, 764 (Cal. App. 6th Dist. 2004), which addressed mandatory cost-shifting for translation of back-up tapes into a reasonably useable form and Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (Cal. App. 4th Dist. 2009), which does not address the eDiscovery Act, but unstated litigation hold issues and eDiscovery abuses resulting in an answer stricken and a default judgment entered.

However, at least one unpublished California opinion hints Courts want more than mere speculation that a discovery production was inadequate:

Following remand, Sukumar asked Nautilus to disclose its e-mails and all other electronically stored information concerning the Med-Fit order. After Nautilus responded that it had already disclosed all relevant documents, Sukumar filed a motion to compel. The trial court denied the motion, concluding that Nautilus’s response was sufficient and Sukumar “has offered only speculation that additional documents exist.” On appeal, Sukumar asserts that the trial court’s order denying his motion to compel should be reversed.

Sukumar v. Med-Fit Sys., 2012 Cal. App. Unpub. LEXIS 3309 (Cal. App. 4th Dist. May 2, 2012).

The appeal in the above case was denied, however it a glimpse at how California courts are handling production issues. Unfortunately, California discovery orders are not published and unpublished cases cannot be cited for any precedential value.  We literally have to watch for tentative orders to see how these issues are being presented to the courts to determine any trends. 

Review-TeamThe second hour required attendees to work as teams in a review database finding responsive discovery from the ENRON dataset, which was provided by Digital Strata in their InControl review platform.

Searching for responsive electronically stored information is a frequent topic at continuing legal education seminars, but infrequently a hands-on experience for attorneys. Our attendees were very engaged and diligently worked through the different hypothetical discovery requests.

We gave several case law examples of “bad” discovery requests, such as the following:

Produce any and all information related to email, including messages, from 1997 to 2006. 

Using the above as a reminder that production requests must be reasonably tailored to secure the production of documents relevant to the issues in a Federal lawsuit (See,Thompson v. Jiffy Lube Int’l, 2006 U.S. Dist. LEXIS 27837 (D. Kan. May 1, 2006)), we developed Requests for Production such as the following for the attendees:

Request for Production 3:

Any and all electronically stored information pertaining to the $56 million loss on Catalytica Energy Systems, sent between 12/01/2000 to 12/31/2001, in native file format, with the following extracted text or metadata:

From, To, CC, BCC, Date, Time, Subject, Document Author, Document Name, Custodian, Control Number, Folder (System File Pathway).

Request for Production 4: 

Any and all electronically stored information authored by Will Nolen, Sally Beck, Susie Ayala, Shona Wilson or David Port relating to project “jedi” sent between 1/01/2000 to 12/31/2001, in native file format with extracted text, substantive and embedded metadata.

One hour of conducting searches is only the beginning of how to respond to discovery requests. However, it is a very good first hour for attorneys who want to learn how to effectively search and respond to discovery requests.

Working with virtual screen

I would like to put together a future program focused on conducting privilege review, redaction, production and privilege log creation at a future seminar. I also think attorneys would benefit from a half to full day conference focusing on practical eDiscovery, such as issuing litigation holds, tracking hold compliance, document review strategies, developing search strings, testing different search tools (i.e., concept, complex Boolean, predictive coding), and production.

Conducting discovery is a skill. Like any skill, it is best to learn it by actually doing it. I believe our profession needs more hands-on eDiscovery events for attorneys to build their comfort level and confidence to competently represent their clients.

All I Want For Christmas Are Taxable eDiscovery Costs

Nothing says Merry Christmas like winning eDiscovery costs. One party was able to get over half the gifts on their Christmas List from the Court as taxable costs.

C

The Defendants submitted eDiscovery costs over $40,000, which was nearly two-thirds of the Defendant’s bill of costs. A service provider made up over half of the eDiscovery costs with a bill of $22,706.90. The rest of the bill was from internal eDiscovery costs. Moore v. Weinstein Co. Llc, 2012 U.S. Dist. LEXIS 178738, 9-10 (M.D. Tenn. Dec. 18, 2012).

Like any Christmas List, the Court found some items to be unreasonable. However, the Court found the service provider’s costs of $22,706.90 to be “reasonable and necessary.” Moore, at *8.

The Case Management Order required production as single-page TIFF’s with Summation DII and LFP load files. Id. The Court stated that the CMO required the processing costs to be incurred by each party. Id. The Court also found that “processing…document[s] for production by, for example, searching for specific custodians, is also a necessary cost of this litigation.” Id.

The Court found that the in-house charges at $150 an hour were “unreasonable.” The Court noted that the service provider hourly rate was $175, “which would presumably be significantly higher than the rates billed” to the Defendant. Moore, at *8-9.

Broken Ornament

The Court found the following:

The Magistrate Judge believes that a rate comparable to an experienced paralegal would be more appropriate. The technology services technologists have specialized expertise and training similar to a paralegal. Therefore, the Magistrate Judge will set a more reasonable billing rate of $100/hour for Technology Services billing.

Moore, at *9.

The Court found several time entries unnecessary, including:

         Work on discovery budget;

         Preparation of deposition transcripts for review;

         Preparation of documents for hearing; and

         Prepare for and attend telephonic deposition of IT vendor

The Court found that the above totaled 134.9 billable hours at the Court-reduced rate hourly rate of $100 for a total of $13,490.00. Moore, at *9.

Based on the reduction of $13,490.00, the new total taxable costs for eDiscovery were $36,196.90. Moore, at *9-10.

Bow Tie Thoughts

No child ever gets EVERYTHING they want for Christmas. However, the Defendant in this case got a lot in their taxable costs, even if it was at a reduced rate.

In determining eDiscovery costs, it is important to understand what work is actually being done when a Court discusses “processing.” Processing is defined by the Sedona Conference as follows:

Processing Data: An automated computer workflow where native data is ingested by any number of software programs designed to extract text and selected metadata and then normalize the data for packaging into a format for the eventual loading into a review platform.

May also entail identification of duplicates/deduplication and rendering of data into delimited format.

The Sedona Conference Glossary, September 2010

eDiscovery specialists who perform advanced searches, processing, data reduction, recommend technology to use on a case are truly well-educated professionals. It was very good to see a Court recognize their abilities in awarding costs.

eDiscovery Does Not Mean Esoteric Discovery

News Am. Mktg. In-Store Servs., is a breach of contract case involving multiple eDiscovery disputes.  According to the Plaintiff, the Defendant did the following:

Destroyed relevant email evidence, including an email server;

Failed to produce responsive documents in discovery due to the above failure; and

Failed to run appropriate ESI searches on Defendants’ computers.

News Am. Mktg. In-Store Servs. v. Floorgraphics, Inc., 2012 U.S. Dist. LEXIS 76543, at *3 (D.N.J. May 30, 2012).

The Plaintiffs further argued the Defendants needed to produce additional discovery and sanctions were warranted. Additionally, the Plaintiffs sought a neutral computer forensic expert to conduct an evaluation of Defendants’ computer systems. Id.

e-Discovery Mea Culpa

The Defendants countered that no discovery had been destroyed, but admitted that their discovery production was deficient.  News Am. Mktg. In-Store Servs., at *3-4.

The Defendants explained [conceded] that they searched the wrong computers and applied the wrong search terms. News Am. Mktg. In-Store Servs., at *4.

However, the Defendants stated they attempted to correct every deficiency and would continue to do so. Id.

Regarding the “destroyed” email server, the Defendants stated it was a “pass-through” server that had been reformatted.  Id. The Defendants explained the server would push incoming emails through the server to individual computers. Id. According to the Defendants, there was no ESI on this pass-through server. Id.

As part of their mea culpa, the Defendants proclaimed they would make witnesses available to be re-deposed and pay the reasonable attorneys fees for the depositions. Id. Moreover, any motions to compel were premature, because they were producing hundreds of thousands of documents. News Am. Mktg. In-Store Servs., at *5.

The Court’s Findings

The case should be about the merits not some esoteric electronic discovery issue.

Magistrate Judge Mark Falk

The Court’s conclusions on the dispute were direct and to the point:

One, the request to compel discovery is premature. Defendants admit that they used incorrect ESI search terms and did not search all of the appropriate avenues of electronic information. They have represented to the Court that 230,000 documents are in the process of being produced and that the production is being checked and re-checked by Defendants’ computer experts to ensure its accuracy. Thus, there is no basis for an order compelling the production of documents until, at least, Defendants’ production is complete.

Two, it appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at the outset of the case. See Fed. R. Civ. P. 26(f)(3)(C). The briefing discloses that Defendants’ counsel was not aware of the structure of Defendants’ computer systems until recently. It is inappropriate for Defendants to only now—three years after the case was filed and after discovery has closed—investigate their electronic systems.

Three, the Court is unable to determine whether information was contained on Defendants’ “reformatted,” “pass through” server. The parties’ positions on this are diametrically different and consist of unsupported conclusions laced with hyperbole.

Four, it is unclear whether ESI allegedly destroyed (or “passed through” Defendants’ server) may be recovered and, if so, the cost of doing so. This important issue is not adequately addressed in the papers.

Five, it is unclear whether the burden and expense of conducting the electronic discovery outweighs the benefit of doing so. See Fed. R. Civ. P. 26(b)(2)(C)(iii). The Court cannot discern from the papers whether a deep forensic search is justified.

Six, the appointment of a neutral computer expert is not called for at this time. In effect, it would transfer the ESI obligations of the parties to the Court. Stated another way, the issues are not sufficiently articulated for the Court to appoint an expert to embark on an unlimited search.

Seven, there is no basis for the Court to consider spoilation sanctions (or any sanctions) until, at least, Defendants complete their discovery production and the questions raised above are answered.

News Am. Mktg. In-Store Servs., at *5-7, (emphasis added).

The Court allowed the Plaintiff to take the 30(b)(6) deposition of the Defendants’ eDiscovery PMK that would be binding on the Defendant. The parties were directed to meet and confer on the deponent. Additionally, the PMK needed to be able to address whether any ESI could be recovered and the specific cost to do so. News Am. Mktg. In-Store Servs., at *7.

In the event there were still eDiscovery disputes after the deposition, the Court stated:

[T]he parties may simultaneously submit letters (double spaced, not to exceed ten pages) explaining the relevance and importance of the discovery and the benefits and burdens associated with the discovery—e.g., whether the costs and effort of securing the discovery is proportional to the expected result. Any letter from counsel must be accompanied by an affidavit from the party’s ESI expert which addresses the technical aspects of the dispute. The ESI expert’s affidavit must discuss the projected costs of proceeding with as much specificity as possible. General, conclusory statements—e.g., “it will be prohibitively expensive”—are unacceptable.

News Am. Mktg. In-Store Servs., at *7-8.

The Court’s opinion sent a very strong message on the discovery disputes between the parties: The case should be about the merits not some esoteric electronic discovery issue. News Am. Mktg. In-Store Servs., at *8 (emphasis added).

The Court was blunt in advising the parties it was “wary of the use of broad and ambiguous electronic discovery requests as a litigation tactic or as a ‘fishing expedition.’” Id. Moreover, the Court stated it was “troubling” for this level of discovery dispute to surface after 18 months of discovery.  Id. Additionally, the Court effectively sent an ethical message to the parties to “proceed in good faith, take reasonable positions, and attempt to resolve their dispute in accordance with the Guidelines For Litigation Conduct.”  News Am. Mktg. In-Store Servs., at *7-8.

The opinion concludes with the warning the Court “not hesitate to award substantial fees to the non-prevailing party or any party found to be proceeding in bad faith.”  News Am. Mktg. In-Store Servs., at *8-9.

Bow Tie Thoughts

I was impressed with Judge Mark Falk’s outlining of case issues and his order. Additionally, the Defendants attempts to correct their mistakes were very respectable.

This opinion highlights multiple eDiscovery issues that are taking place all over the United States: 1) The Duty of Competency in eDiscovery; 2) Providing the Court adequate information to make rulings; and 3) Do not forget the merits of the lawsuit with electronic discovery issues.

The Duty of Competency and eDiscovery has been slowly developing issue since December 2006. There are many attorneys who outright admit they do not understand preservation, review methodologies or discovery productions. One friend recently told me his firm just asks for paper productions because of the lack of knowledge in what to request.

In the current case, the Court stated, “It is inappropriate for Defendants to only now—three years after the case was filed and after discovery has closed—investigate their electronic systems.”  News Am. Mktg. In-Store Servs., at *5-6. Moreover, the Court it was “troubling” to have this sort of discovery dispute after 18 months of discovery. News Am. Mktg. In-Store Servs., at *8.

How can attorneys best meet their duty of competency in eDiscovery? While every client is different, it is important to have a discovery plan from the inception of the case. This may include in-depth client interviews with the parties, custodians, and IT staff (to name a few), to learn how the client uses technology. How does their email system work? Do they text or iMessage?  What sorts of computers do they use? Any tablets? Voicemail? Any personal devices used for business?

I believe the Duty of Competency requires attorneys to either understand their client’s technology themselves or at a minimum, hire a consultant to help the attorneys navigate the issues. Without such investigation, it is difficult to meet one’s ethical duty of candor to the court on the facts of the lawsuit and provide competent representation of their clients.

As to the second issue, lawyers cannot simply walk into court and tell a judge, “Your Honor, it’s expensive.”  The first questions from the Court will be “why and how much.” The answer cannot simply be “Because it is.”

Attorneys need to argue ESI is not reasonably accessible because of undue burden or cost (Fed. R. Civ. P. 26(b)(2)(B)) or that the burden and expense of conducting the electronic discovery outweighs the benefit of doing so (Fed. R. Civ. P. 26(b)(2)(C)(iii)), with specific information, most likely from an eDiscovery expert or IT professional.

The unofficial standard for demonstrating undue burden or expense might be from Judge Facciola’s United States ex rel. McBride v. Halliburton Co., 2011 U.S. Dist. LEXIS 6412, 1-2 (D.D.C. Jan. 24, 2011) opinion: “In excruciating, but highly educational and useful, detail.”

Judges want to have enough information that they can make the right decision. While there will be attorneys simply proclaiming searching a hard drive is expensive, the better litigation practice is to have a well documented affidavit outlining the process and cost to search for specific ESI.

Finally, Judge Falk’s statement The case should be about the merits not some esoteric electronic discovery issue,” should go on t-shirts at e-Discovery conferences. It is easy to become enamored with search technology, collection methodologies and every other eDiscovery issue. However, every eDiscovery issue should be framed around the facts of the lawsuit, the causes of action and be relevant to competently move the case forward. The technology exists to enable lawyers to practice law, not to overshadow the merits of the case.

How “Ridiculous” Productions Can Waive the Attorney-Client Privilege

The ridiculously high number of irrelevant materials and the large volume of privileged communications produced demonstrate a lack of reasonableness.

Robert C. Chambers, United States District Court Judge

Preparing electronic discovery takes careful review and following Judge Grimm’s Victor Stanley checklist.  That did not happen in this case.

The Plaintiffs produced over a million “pages” of ESI, which they marked “Confidential.”  The production included nearly a thousand attorney-client communications.  Felman Prod. v. Indus. Risk Insurers, 2010 U.S. Dist. LEXIS 74970 (S.D. W. Va. July 23, 2010).

The Plaintiffs admitted that nearly 30% of their production was irrelevant.  In the words of the Court, the production included, “car and camera manuals, personal photographs, and other plainly irrelevant documents, including offensive materials.” Felman, at *4.

The Defendants hired a 30 person team to slog through reviewing the Plaintiffs’ production. Felman, at *5.

Clicking through 300,000 irrelevant files probably did not go over well in the accounts receivable meeting with the client.  In theory, if the 30 reviewers were each reviewing 480 records a day, thus a daily total of 14,000 a day, the review team could have spent 21.42 days reviewing all the car manuals and sometimes offensive material.

However, the Defendants’ possible discord and strife in their discovery review was rewarded with the pony they each wanted in early childhood: An email protected by the attorney-client privilege where the Plaintiff admitted 1) they did not have a sales contract regarding an issue in the case and 2) requested attorney advice on they needed to ask customers to backdate contracts for the Plaintiffs’ insurance claim.  Felman, at *4-5.

The Defendants filed counter-claims for fraud and breach of contract within a week of discovering the attorney-client email.  Felman, at *5-6.

Issue:  Did the Plaintiffs waive the attorney-client privilege by failing to take reasonable precautions to prevent the inadvertent disclosure prior to production?

Answer: Yes, especially when the Court calls your production “ridiculous” because of the high number of irrelevant data and privileged files produced.

The Court explained that the large volume of irrelevant data and thousands of privileged files produced showed that the Plaintiffs review and production methodology was not reasonable (which are two factors of the Victory Stanley test).  Felman, at *10-11.

As the Court concluded:

Here, the number of inadvertently disclosed documents was enormous (approximately 30% of more than one million pages) and the number and extent of the attorney-client privileged communications disclosed was also very large (thousands of attorney-client protected communications were produced). These facts, standing alone, weigh heavily in favor of finding: (1) the precautions taken to avoid inadvertent disclosure were unreasonable, and (2) Felman’s attorney-client privilege was waived. Moreover, neither of the additional Victor Stanley factors — the delay, or lack thereof, in taking measures to rectify the disclosure or the overriding interests in justice — are to the contrary.

Felman, at *11.

Bow Tie Thoughts

Parties cannot conduct sloppy review and then try to bomb the opposing side into submission with expensive discovery review costs.  Utilizing technology to defensibly collect relevant data, cull down for responsiveness and conduct meaningful privilege review is essential for effective discovery productions.  Moreover, revenge based productions where a party conducts a data dump on the opposing party may find themselves disclosing confidential information.  Worse, they will lose credibility with the Court by driving up discovery costs.