Category Archives: E-Discovery

Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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Why eDiscovery And Legal Technology Should Be Required In Law Schools.

07 Sunday Jun 2015

Posted by in Discovery, E-Discovery, Legal Technology

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Law Schools And The Need To Teach Ediscovery Practice Skills, by James B. Levy, Legal Skills Prof Blog

http://tinyurl.com/nzhczx6

While some state bar associations’ ethical opinions are requiring its members to keep up to date with legal technology, law schools do not seem to have gotten on board. If lawyers already practicing are considered behind if they do not aggressively incorporate legal technology in their practice, shouldn’t law schools be leading rather than following? Paralegal programs – are you paying attention? -CCE

Though many legal practice areas have been in decline since the Great Recession, the demand for eDiscovery services has skyrocketed. This post from Bloomberg’s Big Law Business blog says that the law school curriculum needs to likewise evolve by providing more training opportunities that teach the next generation of lawyers these vital practice skills . . . .

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E-Discovery Red Herring?

20 Wednesday May 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality

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Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/20/riley-cell-phone-decision-a-red-herring-in-e-discovery/

Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. _, 134 S. Ct. 2473 (2014) to civil discovery. I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley. . . .

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Angry Judge Sanctions Defendants For E-Discovery Spoilation.

19 Tuesday May 2015

Posted by in Discovery, E-Discovery, Preservation, Sanctions

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Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/k3d74yu

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .

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No Perfection Standard In E-Discovery?

02 Saturday May 2015

Posted by in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production

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Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/01/is-there-a-right-to-fail-in-e-discovery/

Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .

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Would You Report A Data Breach At Your Law Firm?

10 Friday Apr 2015

Posted by in Cybersecurity, Discovery, E-Discovery, Law Office Management, Legal Ethics, Legal Technology

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Has the Law Firm Holding Your Data Ever Suffered a Breach? You May Never Know: eDiscovery Trends, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/lruvc2j

In February, we discussed a report about data breach trends in 2014 and how those trends compared to data breaches in 2013. That report provided breach trends for several industries, including the healthcare industry, which suffered the most breaches last year (possibly because stolen health records are apparently worth big money). But, according to a recent report, you won’t see any trends for law firms because the legal profession almost never publicly discloses a breach. . . .

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Slip-and-Fall Evidence Spoilation A Slippery Slope?

06 Monday Apr 2015

Posted by in Discovery, E-Discovery, Litigation, Personal Injury, Requests for Production, Slip and Fall

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Slippery Slope: Harrell v. Pathmark, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/04/06/2318/

One e-discovery blog I never fail to read is Doug Austin’s eDiscoveryDaily. It’s hard to come up with a post every day; yet, Doug makes it look easy. Each post is a quick read with little editorializing; and, Doug faithfully includes a link to the opinion. That last may seem a small thing; but, some bloggers don’t do it (or only share the full text of the decision with paying customers). There’s no substitute for reading the case.

Today, Doug posted on Harrell v. Pathmark, (USDC EDPA, February 26, 2015), where the Court dismisses the plaintiff’s slip-and-fall injury claim on summary judgment. I don’t think the Court got it wrong on the merits; but, in weighing in, sua sponte, on the e-spoliation issue, I’m reminded of the maxim, ‘hard cases make bad law.’ . . .

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Imaging A Hard Drive = Making A Copy And Within Plain Meaning Of Taxation Of Costs.

19 Thursday Mar 2015

Posted by in Attorney Fees and Costs, Depositions, Discovery, E-Discovery, Hard Drives, Taxation of Costs, Video Deposition

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Stating Reality: Imaging a Hard Drive Makes a Copy, by Josh Gilliland, Esq., Bow Tie Law

https://bowtielaw.wordpress.com/2015/03/19/stating-reality-imaging-a-hard-drive-makes-a-copy/

Taxation of cost cases do not generally have happy endings for recovering eDiscovery costs. The United States Court of Appeals for the Sixth Circuit issued a very important opinion on March 17, 2015 well grounded in the reality of civil litigation and the law where eDiscovery costs were recovered.

It also takes a swing at Race Tires, which is always a welcome read.

The Court of Appeals held that the cost of video deposition synchronization and transcript were properly taxed. Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S.  App. LEXIS 4184, 2-3 (6th Cir. Ohio 2015). The Trial Court had determined the synchronized video deposition was ‘reasonably necessary’ and the opposing party never explained how the costs were either unreasonable or unnecessary. Id.

For anyone who has conducted deposition review, this is good news. I have spent many hours reviewing depositions and video depositions. ‘Reasonably necessary’ is an understatement. Synced video depos allow you to understand the context of the testimony. A simple question and answer in a transcript can look harmless, but if the video shows the deponent turning bright red, biting his lip, and answering the question with his teeth clinched, you know that testimony is important. . . .

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Recent Opinions On E-Discovery Hot Topic – Technology-Assisted Review.

14 Saturday Mar 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality, Technology-Assisted Review

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Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues, published by K&L Gates

http://tinyurl.com/m7kll6l

Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (‘TAR’), Magistrate Judge Andrew Peck’s most recent opinion declares that ‘it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of ‘how transparent and cooperative the parties need to be with respect to the seed or training set(s).’ And, while this opinion did not resolve that question (because the parties in the present case agreed to ‘a protocol that discloses all non-privileged documents in the control sets’), it does provide some notable commentary on the issue. . . .

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Why Aren’t All Lawyers And Law Students Trained In E-Discovery And Should They Be?

07 Saturday Mar 2015

Posted by in Continuing Legal Education, Diligence, Discovery, E-Discovery, Ethics Opinions, Federal Rules of Discovery, Legal Ethics, Technology

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The Conundrum of Competence in E-Discovery: Need Input, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/03/07/the-conundrum-of-competence-in-e-discovery-need-input/

I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.

So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to ’get there;’ you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.

The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.

These laudable efforts just say ‘get there.’ They do not show us the way. . . .

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Defendants Recover E-Discovery Costs And How They Did It.

04 Wednesday Mar 2015

Posted by in Discovery, Document Review, E-Discovery, Legal Writing, Motions, Requests for Production

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Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates

http://tinyurl.com/pdqnz3a

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .

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Do-It-Yourself E-Discovery? Is There Such A Thing?

08 Sunday Feb 2015

Posted by in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34

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Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/ol2urvf

In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too. 

I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE

This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]

Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next.  Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.

What’s a PST?

Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.

What About Outlook?

Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .

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Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

20 Tuesday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Litigation Hold, Preservation, Relevance, Requests for Production

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The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court

http://tinyurl.com/q4uozfh

This is the seventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

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Honey Pot of Federal Court E-Discovery Local Rules, Forms and Guidelines.

18 Sunday Jan 2015

Posted by in Bankruptcy Court Rules, Court Rules, Courts, Discovery, E-Discovery, E-Filing, Federal District Court Rules, Local Rules

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Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law Blog, published by K&L Gates

http://tinyurl.com/p3d6srx

No doubt many of you have already have bookmarked this site. K&L Gates compiled this comprehensive list of local rules, forms and guidelines for U.S. District Courts and U.S. Bankruptcy Courts. At the bottom of their post, you will find a link that will take you directly to the U.S. Court’s website of all federal court rules. Thank you, K&L Gates. -CCE

Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

Many United States District Courts now require compliance with special local rules, forms, or guidelines addressing the discovery of electronically stored information. Below is a collection of those local rules, forms and guidelines, with links to the relevant materials. Please note also that many individual judges and magistrate judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge or magistrate judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in.

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E-Discovery Is Scary!

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Native Format, Preservation, Requests for Production

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How NOT to Produce Facebook Evidence, by Molly DiBianca, The Delaware Employment Law Blog

http://tinyurl.com/l8tvv2c

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . .  .-

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What Is The Case About And What Are You Looking For?

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Hard Drives, Preservation, Requests for Production

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Don’t Try This at Home, Revisited, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/01/16/dont-try-this-at-home-revisited/

This is the fifth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Don’t Try This at Home

[Originally published in Law Technology News, August 2005]

The legal assistant on the phone asked, “Can you send us copies of their hard drives?”

As court-appointed Special Master, I’d imaged the contents of the defendant’s computers and served as custodian of the data for several months. The plaintiff’s lawyer had been wise to lock down the data before it disappeared, but like the dog that caught the car, he didn’t know what to do next. Now, with trial a month away, it was time to start looking at the evidence.

“Not unless the judge orders me to give them to you,” I replied. . . .

Choosing The Best E-Discovery Document Review Platform For Your Project.

11 Sunday Jan 2015

Posted by in Discovery, Document Coding, Document Review, E-Discovery, Requests for Production

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How To Choose The Best Document Review Platform, Part 1, by Jeff Bennion, Above The Law Blog

http://tinyurl.com/ol6wxf4

When you are planning a document review project, the selection of your document review platform is critical. In a nutshell, document review is the process of organizing and categorizing large amounts of data to find the small percentage of documents that will end up as exhibits. The data is usually stored on an offsite server and is accessed through an online review platform. Although the coding of documents is usually pretty standard across platforms (a list of documents, a document viewer window, and a panel for your tags), the features that each platform has to help you organize your key docs for depositions, hearings, and trial are not the same. . . .

Craig Ball on E-Discovery’s Concept Search Tools.

10 Saturday Jan 2015

Posted by in Concept Search Tools, Discovery, E-Discovery

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Unclear on the Concept, Revisited, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/01/09/1953/

This is the second in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Unclear on the Concept

 [Originally published in Law Technology News, May 2005]

A colleague buttonholed me at the American Bar Association’s recent TechShow and asked if I’d visit with a company selling concept search software to electronic discovery vendors.  Concept searching allows electronic documents to be found based on the ideas they contain instead of particular words. A concept search for “exploding gas tank” should also flag documents that address fuel-fed fires, defective filler tubes and the Ford Pinto. An effective concept search engine “learns” from the data it analyzes and applies its own language intelligence, allowing it to, e.g., recognize misspelled words and explore synonymous keywords.

I said, “Sure,” and was delivered into the hands of an earnest salesperson who explained that she was having trouble persuading courts and litigators that the company’s concept search engine worked. How could they reach them and establish credibility? She extolled the virtues of their better mousetrap, including its ability to catch common errors, like typing “manger” when you mean “manager.”

But when we tested the product against its own 100,000 document demo dataset, it didn’t catch misspelled terms or search for synonyms. It couldn’t tell “manger” from “manager.” Phrases were hopeless. Worse, it didn’t reveal its befuddlement. The program neither solicited clarification of the query nor offered any feedback revealing that it was clueless on the concept. . . .

E-Discovery’s Legal Search Exact Recall – What To Expect.

01 Thursday Jan 2015

Posted by in Discovery, E-Discovery

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In Legal Search Exact Recall Can Never Be Known – Part One, by Ralph Losey, e-Discovery Team™

http://tinyurl.com/otvoewc

In legal search you can never know exactly what recall level you have attained. You can only know a probable range of recall. For instance, you can never know that you have attained 80% recall, but you can know that you have attained between 70% and 90% recall. Even the range is a probable range, not certain. Exact knowledge of recall is impossible because there are too many documents in legal search to ever know for certain how many of them are relevant, and how many are irrelevant. I will explain all of these things in this three-part blog, plus show you a new way to calculate probable recall range that I have recently come up with.

Difficulty of Recall in Legal Search

In legal search recall is the percentage of target documents found, typically relevant documents. Thus, for instance, if you know that there are 100 relevant documents in a collection of 1,000, and you find 80 of them, then you know that you have attained 80% recall. . . .

Shocking! A Court Frustrated by Parties’ E-Discovery Tactics.

24 Wednesday Dec 2014

Posted by in Breach, Contract Law, Discovery, E-Discovery, Litigation, Motion to Compel, Requests for Production

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E=Frustrated Court Crafts ‘New and Simpler Approach to Discovery,’ Identifies Search Terms to be Utilized by Plaintiff, posted in Case Summaries by K&L Gates

http://tinyurl.com/kerbox6

Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)

In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a ‘new and simpler approach’ to discovery, including the identification of 13 search terms/phrases to be utilized when searching ‘ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .’ The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its ‘good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].’

Discovery in this case was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant. At that time, the court warned the plaintiff ‘not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.’ Plaintiff subsequently produced documents on nine separate occasions.

Following the prior motion to compel, Defendant also learned, for the first time, of a ‘five-step development process,’ that it believed was highly relevant to its claims, and which caused it to believe that the plaintiff was withholding documents from production. Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.

Taking up the motion, the court expressed its frustration with ‘the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.’ The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order ‘[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.’ ‘Instead,’ the court continued, ‘the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . . .’

“Lock Down” Your Bates Numbers To Prevent Edits By Opposing Counsel.

16 Tuesday Dec 2014

Posted by in Adobe Acrobat, Bates Numbering, Bates Numbers, Discovery, E-Discovery, Legal Technology, Requests for Production

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Preventing Edits To Bates Numbers Applied In Acrobat, by Rick Borstein, Acrobat for Legal Professionals Blog

http://tinyurl.com/lvc4j87

If your job is anything like mine, you use Adobe Acrobat to Bates number documents all the time. There are many reasons to use a Bates numbering system. One of the top reasons is that it helps to eliminate confusion and keeps documents organized.

If opposing counsel can change the Bates numbers on your produced documents, it can create havoc. I do not like havoc, especially when I have spent a lot of time and my client’s money to create a neatly Bates-numbered set of documents. Thank you, Mr. Borstein! -CCE

[T]he ability to remove Bates Numbers is valuable in case you make a mistake during the numbering process. However, due to the adversarial nature of the legal business, attorneys may desire to limit what the other side can do with documents.

To whit, this email I received from an attorney last week:

What can I use to flatten Bates numbers so that they cannot be altered or removed using the Acrobat Bates numbering process?

I know I can print to PDF, save as TIFF, print-then-scan, etc., but am looking for a solution that will work in batch mode and not degrade the appearance of the file. Also, I don’t favor using security settings because I don’t want to restrict the user’s ability to access the file.

In this article, I’ll discuss how to ‘lock down’ Bates Numbers so that they cannot be removed by Acrobat’s ‘Remove Bates’ option. . . .

Is It That Hard To Follow Rule 34? Not According To The Judge.

28 Friday Nov 2014

Posted by in E-Discovery, Federal Rules of Discovery, Requests for Production, Rule 34

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Rule 34: As Basic As You Get, by Joseph Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/mbrcqlf

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

Federal Rule of Civil Procedure Rule 34 is supposed to prevent the ‘document dump,’ which was the attorney Cold War equivalent of a doomsday weapon. . . .

To Decide Motion To Compel, Court Asks Whether Discovery Was “Fair.”

08 Saturday Nov 2014

Posted by in Discovery, E-Discovery, Intellectual Property, Motion to Compel, Patent Law, Requests for Production

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Considering Motion to Compel, Court Asks Whether Discovery Responses Have Been “Fair,” by K&L Gates

http://tinyurl.com/kkgomaa

Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014)

In this patent infringement case, Defendant objected to ‘producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.’ Plaintiff filed a motion to compel. In assessing the motion, the court recognized potential limitations on discovery, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii).  The court indicated that, ‘[r]educed to its essence, Rule 26(b)(2)(iii) [sic] requires this court to decide: have Blue Coat’s discovery responses been fair?’  In response, the court concluded that the defendant’s responses had ‘largely been fair, but not entirely.’ Turning specifically to the question of custodial emails, the court reasoned:

Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan—the one specific category of documents Finjan could identify that it needed from archived email—Finjan’s request is reasonable.

A full copy of the court’s opinion is available here.

Craig Ball’s E-Discovery Tips For Judges.

18 Saturday Oct 2014

Posted by in Discovery, E-Discovery, Requests for Production

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10 E-Discovery Tips for Judges, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2013/08/09/1370/

I speak with a lot of judges about e-discovery and digital evidence.  I’ve taught at Federal Judicial Center programs from coast-to-coast and addressed confabs of judges in various states. Some of these presentations have turned into annual pilgrimages.  Have PowerPoint.  Will travel.

It’s a privilege to address judges because, among their own, judges are more cordial, relaxed and candid than in their courtrooms.  But, it’s also a responsibility and a challenge.  In the state systems, I can often be a judge’s first exposure to e-discovery.

Lawyers want the quick course in e-discovery.  They expect to glean ESI skills in minutes, before they glaze over with the talk of metadata and forms of production. Lawyers seek the canned checklist or scripted list of questions, and little care if they understand what the check boxes mean or what the follow up question should be.

It drives me bonkers. . . .

Ignore Duty For Litigation Holds At Your Peril.

15 Wednesday Oct 2014

Posted by in Discovery, E-Discovery, Employment Law, Litigation Hold, Preservation, Race Discrimination, Sanctions, U.S. District Court for the Southern District of New York

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Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine

http://tinyurl.com/ka6thgo

By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .