All posts tagged Federal Rules of Civil Procedure

My (Google) Hangout with the Ediscovery Experts

What happens when seven of the smartest, most articulate ediscovery professionals come together for an hour talk about—quite frankly—whatever they want?

Just yesterday  Josh Gilliland, Samir Mathur, Barry Murphy, Ralph Losey, George Socha, and David Horrigan joined my esteemed co-moderator Phil Favro and myself —virtually—for a Google+ Hangout on the current state of ediscovery. The discussion was loosely framed on three topics: case law, predictive coding, and FRCP amendments, and the perspectives shared (as you may expect from this forward-thinking group) were anything but canned.

Topic One: Case Law This no-nonsense panel wasted little time cutting to the bone with an important and seldom-raised question: Just how much weight does a trial decision from Judge Scheindlin, the “grandmother of ediscovery,” really pull?

On one hand, practitioners and other courts are leveraging cases like Sekisui to start thinking about how to handle issues like spoliation, but as another panelist pointed out, the principles of stare decisis fully apply—moreover, Scheindlin often restricts her holdings to her court room, as no one judge controls preservation.

“Are new rules the answer?” pressed another expert. Preservation law has existed for around 400 years, so maybe the answer doesn’t lie in creating a new framework, but in using the tools we have today more effectively.

In a statement that was shared by most, one lawyer noted that “[Preservation has] always been about reasonable efforts and it always will be”—and what’s reasonable in one jurisdiction will differ from what’s reasonable in another. The bottom line hasn’t changed: these are fact-based determinations, and courts will find a way to sanction people who intentionally delete evidence.

On the issue of whether or not new rules would help, one member of the group concluded this topic by noting that “[W]e’ve been dealing with sanctions since Roman times, and that rules alone are probably not the end-all, be-all solution.”

Topic Two: Predictive Coding – Where do we stand right now in the adoption of this technology, and what will 2014 look like? Is this a mainstream technology? Will it ever be?

Fairly universally, the panel agreed with the notion that predictive coding has yet not totally taken off. “Even if X% of clients have used it, they aren’t using it in all of their cases because not all cases are right for this technology. Moreover, it has yet to be embraced by smaller firms,” as one panelist noted.

But at the very same time, another panelist fired back, “you’d be foolish” to not use it in the mega cases. Now that we have judicial approval—notably more than we ever had for keyword searching—he  expects the discussion about predictive coding to mature, and the more interesting prospective discussions will be about the appropriate methodologies required to successfully deploy this software.

Another panelist argued that we’re going to see more opacity—yes, the opposite of clarity or clearness—in using this technology in 2014. There are ramifications tethered to agreeing to share testing and seed sets, and litigants will begin to carefully examine whether this is the right direction for using these solutions.

Most professionals agreed with the statement that lawyers are at the “tip of the tail on the dog” with regard to predicting coding technology. However, as noted by one attorney, as this technology continues to become less costly, and integrated into more review solutions, its usage should trickle down to the smaller firms.

Topic Three: Potential Amendments to the Federal Rules of Civil Procedure Before wrapping things up, the group analyzed potential FRCP amendments currently on the table for public comment until early next year, specifically changes to FRCP 26 and 37.

To get the ball rolling, one participant opined that the renewed interest being injected into the 26(f) meet and confer conference obligation—“the lynchpin of successful discovery”—is a step in the right direction. Another countered, however, “there is only so much you can do to force people to get together and cooperate early.” This point was further echoed across the panel: there must be also be a parallel culture shift in how lawyers approach cooperation. Whether this will actually happen is an entirely different question.

While there was fairly universal agreement that the potential changes to the Federal Rules were positive additions to ediscovery law, especially with regard to bringing proportionality clearly into parent Rule 26, there was some hesitancy as to just how “game-changing” these rules will be. Addressing proposed rule 37, one expert noted that the culpability triggers defined by this rule will probably not significantly alter the current spoliation analysis.

On the whole, most participants agreed that the vehicles for shifting ediscovery costs are too limited. Section 1920 (4), which allows prevailing parties to recoup fees for “exemplification” and “making copies,” must be reworked in one way or another, as it’s the only place to currently hang one’s hat. Concluding the discussion, one expert stated it’s hard to stretch a statute, which has been around for over 100 years, to accommodate requests for costs associated with increasingly necessary ediscovery processes.

Changing the Federal Rules: Commentary Opens, Advocacy Thrives

Who should bear the burden of showing prejudice (or a lack thereof) as a result of spoliation? The innocent party or the spoliating party? This vexing catch-22, which requires proof of what isn’t there, has not only lead to some of the most recognizable ediscovery case law in the country (See Zubulake; Pension Committee), but remains a major obstacle in the Advisory Committee’s path to amending the Federal Rules by 2015.  To put it bluntly, if draft rule 37(e) went effective today, it would overrule Sekisui and fly in the face of one of the most prominent ediscovery judges in the world’s stance on this very issue. Add fierce advocacy from large companies who are struggling to tread water in seas of ESI and one can see that while we’re almost three years into the rulemaking process, the finish line might not even be in sight.

November 7th marked the first of three public hearings aimed at proposed ediscovery amendments to the Federal Rules of Civil Procedure. Preliminary draft rules 26 and 37 stole the spotlight during the first public hearing in DC, and lobbyists minced words over what verbiage will appropriately curb over-preservation woes without going too far.

Let’s take a look at which amendments are still on the table, and where the arguments lie:

Proposed Rule 26 moves the proportionality factors of Rule 26(b)(2)(C) to the forefront of parent Rule 26(1).  A party’s ability to “obtain discovery” is now clearly conditioned on proportionality, akin to relevancy or lack of privilege.

  • Plaintiff’s Point: Bringing the proportionality factors of 26(b)(2)(C) to 26(1) and using the word “proportional” in the rule goes too far. It sends a clear message to courts that they can deny discovery and will breed early motion practice. This will present a substantial obstacle to individual plaintiffs attempting to assert a claim, especially where extensive discovery may be necessary to vindicate their rights (e.g., employment law).
  • Counterpoint: These minor changes will not shift the balance of discovery because these factors already appear in the Federal Rules. Further, any added protection this new wording presumptively offers already exists in our rules in the form of certifying discovery disclosures under Rule 26(g).

Proposed Rule 37(e) removes the traditional verbiage of the ‘safe harbor’—instead if any party fails to preserve information in “anticipation or conduct of litigation,” a court may issue basic sanctions like further discovery, curative measures, or an order to pay expenses associated with the failure. However, if a court finds “substantial prejudice” plus bad faith or willfulness, more severe sanctions, like an adverse inference instruction, become available. These more potent sanctions are also unlocked where a court finds that that spoliation “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.” Courts are directed to consider five familiar factors (e.g,. proportionality, reasonableness) in making this determination.

Get Ready for New Ediscovery Rules in Minnesota

The month of July ensures some much needed warmth in Minnesota after an offensively wintery spring, but July also brings an exciting new set of amendments to the Minnesota Rules of Civil Procedure. From July 1, 2013 onward, Minnesota lawyers are obligated to cooperate and be more upfront during the discovery process. In an effort to mirror the crux of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP), electronic discovery and proportionality will be the focus of the new Minnesota Rules of Civil Procedure, due in no small part to the resounding plea from lawyers all over the state for the judicial enforcement of cost-effectiveness and manageability in civil litigation.

Particularly interesting is the new Rule 1, which explicitly addresses proportionality – a welcome step that actually goes above and beyond the FRCP. The specific mention of proportionality takes the wiggle room away from litigants tempted to play fiscal “chicken” with opposing counsel via discovery costs. It puts the onus on each party to work across the aisle and limit discovery to a practicable scope.

The most expansive change comes in Rule 16, by which Minnesota lawyers must make an earlier investment on tailored ediscovery plans. Lawyers must conduct ediscovery management with more effort than ever by way of compulsory initial disclosures related to custodians, data sources, litigation holds, scheduling, production format, and everything in between. A strict new timeline will be enforced – thirty days after the answer to the complaint, the discovery conference must take place, and fourteen days after that, the parties must file a discovery plan with the court. No longer will “Yep, we talked about ediscovery” end the story, as the court will now be more involved in early planning to ensure that the discovery beast stays tame. In fact, no discovery will be allowed until after the initial disclosures and scheduling order pass the court’s muster. In essence, early preparation and a strengthened call for cooperation are certainly the themes of the new rules in Minnesota state court.

Updates to the Minnesota Rules come at the perfect time, when high-level discussions are occurring about similarly strengthening the FRCP to reflect the growing need to address proportionality in litigation. All in all, the updates reflect the legal system moving forward on a path towards the “North Star” in ediscovery.

The text of the new Minnesota Rules of Civil Procedure can be found here.

Ediscovery Project Management – A Quick and Dirty Guide(Part I)

While there is a general misperception that project managers are merely drones moving mindlessly from task to task, the reality is that project managers play a critical role in the success of any project – particularly in ediscovery. The simple fact is that the effective execution of an ediscovery project is driven by process and reinforced by extensive preparation and organization speaks directly to the value of both strong ediscovery project managers and well thought out ediscovery project management methodology.

The Ediscovery Project Management (EDPM) framework consists of four important elements:

Determining Initial Scope

First thing’s first—it is important to understand the overall objectives as well as the legal requirements associated with any ediscovery project management matter.  Additionally, under the Federal Rules of Civil Procedure, the parties are required to meet to discuss the scope and issues regarding discovery and particularly ediscovery. In this endeavor, parties must consider one another’s requests, pleadings and communications. Also, to avoid potential spoliation issues, it is critical to determine the parameters of the applicable litigation hold. Through the entire process, both sides must satisfy Fed. R. Civ. P. 26(g), which imposes a duty on the attorney to certify that he or she conducted a “reasonable inquiry” into the facts of the law supporting each discovery request.

Setting a Schedule

Singer Andy Partridge once stated, “We’re the ninjas of the mundane”—an apropos thought for project managers. Scheduling can be tedious, but it’s an all-too-important step in conducting a successful ediscovery project. Within the EDPM framework, the parties must set a project schedule (sometimes dictated by the Court and/or local/federal rules) and discuss that schedule with third party ediscovery providers. A critical element to consider in establishing a schedule is the nature and complexity of the data. And of course, never forget the power of the court to impose case management, scheduling orders, and status conferences.

 Budget/Cost

In the context of litigation, cost is balanced with evaluated risk and perceived value of winning OR controlling loss. The EDPM framework demands the development of an initial budget estimate, at which point the parties should consider valuation and risk tolerance. During the course of an ediscovery project, routinely monitor actual costs – a step that can be built into scheduling and communication plans. Finally, if a party believes that discovery will be unduly burdensome, that party should consider making a cost-shifting argument so that the other side must pay for their own request. Not only has recent case law supported cost-shifting (Vaughn v. LA Fitness), but it is bolstered by the proportionality standard of Rule 26(b)(2)(C).

Communications

Last but definitely not least, it is crucial in any ediscovery endeavor to maintain proactive communication between the end-client, counsel and third party providers. To accomplish this goal, create a reporting system and establish a communication plan – who should get what information when and from who. Account for geographic and time zone differences, allowing for 24/7 worldwide availability; doing so will pave the way for future successful projects.

The Ediscovery Olympics: E-evidence Best Practices around the World

The Ediscovery Olympics: E-evidence Best Practices around the World

Citius, Altuis, Fortuis  – “Faster, Higher, Stronger” – Right now over ten thousand athletes from two hundred countries are competing in London to see who can take the Olympic Motto to its fullest potential. When you sit down to watch the events, remember that behind every flag is a unique legal system comprised of diverse privacy laws and ediscovery rubrics. As these laws become increasingly intertwined, legal professionals–like athletes–must constantly push themselves to become faster, higher, and stronger to manage international ediscovery in the digital age.

United States

A central theme in American discovery is that the search for truth in litigation outweighs individual privacy concerns, with the exception of personally identifiable information.  The 2006 amendments to the Federal Rules of Civil Procedure are the heart ediscovery, namely Federal Rules 26 and 34 which define electronically stored information (ESI) as a discoverable source of information.

Guided by few appellate decisions, US district court and magistrate judges are the architects behind an expansive body of ediscovery case law. Proportionality (barring unduly burdensome ESI production and preservation) and cooperation (mandating party-to-party ESI discourse early) are defining facets of American ediscovery.  In 2012, courts have expressed unrivaled legal-technological proficiency by tackling several complex ediscovery issues: taxation of ediscovery costs,1 the role of proportionality in preservation,2 and marrying smart technology with document processing and review.3

England and Wales

The shifting tides of ediscovery impact both sides of the Atlantic. In the UK, Civil Procedure Rule 31 governs disclosure. Its counterpart, Practice Direction 31B, is the primary source for coping with issues like the preservation of ESI, defining a “reasonable search,” and assessing the level of party communication required before the case management conference.

The UK takes a fundamentally different approach to spoliation sanctions than the US.  While the destruction of relevant ESI is barred under English law (as made clear by the 2012 case West African Gas Pipeline Co. Ltd. v. Willbros Global Holdings Inc.),4 litigants are less concerned over the threat of sanctions than counsel in the US, where various levels of culpability (as low as negligence in some jurisdictions) are tied to American hierarchies of differing sanctions.

The European Union

The EU Data Protection Directive 95/46/EC (“the Directive”) mandates signatory countries to implement laws restricting the processing of “personal data”—information “relating to an identified or identifiable” person. Moreover, the Directive bars the transfer of personal data to non-EU states unless the country provides for “adequate protection” of personal data and marks a significant detour from the American approach to data protection.5

Geared towards creating a “stronger and more coherent data protection framework,” the European Commission unveiled a new Draft Directive and Regulation on Data Protection on January 25th 2012.6 Set to take effect in 2014, the new data protection regime bolsters the rights of data subjects, imposes heightened obligations on organizations and strengthens enforcement measures.  This rubric, combined with many civil law systems, provides for minimal discovery of ESI in EU litigation.

Canada

Throughout the Canadian provinces, the 2008 Sedona Conference® Publication, The Sedona Canada Principles, has provided an impetus for developing ediscovery rulemaking. For example, the Ontario Rules of Civil Procedure make an explicit call for cooperation and a meet and confer conference when discussing discoverability of electronic data. Further, they require counsel to consult with The Sedona Canada Principles.

However, following the footprints of the EU, Canada has taken a rigorous approach to data protection regulation at the legislative level. Private sector data use is controlled by the Personal information Protection and Electronic Documents Act, a federal privacy law designed to “support and promote electronic commerce by protecting personal information that is collected, used or disclosed.”

Asia (APAC)

Ediscovery law in APAC is evolving at the speed of light. Some countries have passed ediscovery guidelines (e.g., Singapore); however, many countries, like South Korea and Japan, are still considering implementing ediscovery laws. In the APAC region, ediscovery largely impacts international companies with US-based litigation and antitrust concerns. Local counsel and local service providers can provide immense value when attempting  to successfully collect data in the region, while navigating the vast legal system differences.

As the e-commerce market continues to blast through geographic boundaries, watch for countries to continue to parse their existing rules against the demands of litigation, develop laws that cushion these changes, and shift the burden of knowledge to attorneys engaging in international data discovery. It is only a matter of time before a case on your docket, in your firm or on your desk involves multinational discovery laws. Whether you’re watching the London games for the sports, the tradition, or the pageantry, take a second to think about the diverse network of laws behind the competition.

1 See Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2012 WL 887593 (3d Cir. Mar. 16, 2012).
2 See Pippins v. KPMG LLP, 2012 WL 37032 (S.D.N.Y. Feb. 3, 2012).
3 See Da Silva Moore, et. al., v. Publicis Groupe & MSL Group, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012).
4 [2012] EWHC 396 (awarding over £135,000  in costs for a party’s failure to provide a proper disclosure).
5 American data protection law involves a concoction of legislation (e.g., the Fair Credit Reporting Act), self-regulation, and industry regulation.

Ten Tips for Managing Social Media in Ediscovery

Ten Tips for Managing Social Media in Ediscovery

With increasing frequency, companies across the globe are leveraging social networking tools to effectively market products and build consumer relationships. However, for an unprepared litigant, a discovery request can quickly go sour due to the dynamic nature of information stored on these sites. Below are ten tips to help manage risks and meet discovery obligations associated with social media.

  1. Start preparing now.  The Federal Rules of Civil Procedure consider “any type of information stored electronically” discoverable—which generally includes data from social media.1 Although case law is still developing, Gartner predicts that by 2013, 50 percent of all companies will have been asked to produce material from a social media site for ediscovery.2 To avoid being blindsided by a request for such data, corporations and counsel should start managing social media now.
  2. Issue litigation holds early. Since social media data is discoverable, the duty to preserve falls on the parties named. However, several preservation challenges arise due to the unique nature of the data, which is not only constantly changing, but also password protected and stored on remote servers. Furthermore, there are few reliable technologies available to preserve this data. Based on these factors, timing is critical for proper preservation: if litigation is anticipated, all relevant data should be identified immediately and litigation holds should be issued to account holders and service providers.
  3. “Privacy” settings will not protect social media data from discovery. Although a uniform standard has yet to emerge, the judiciary generally seems to be moving toward greater permissiveness for the discoverability of social media. Based on recent decisions, there exists the strong likelihood that privacy concerns will be outweighed by a sufficient showing of relevance. Notably, courts have reasoned that the very nature of these sites requires disclosure,3 dismissing expectations of privacy as “wishful thinking.”4
  4. Obtain consent before collecting data. Social media data is usually retained solely by the service provider, and collecting it without consent of the user can violate federal or state wiretapping laws. Before attempting to access any information from a social networking site, make an effort to obtain the user’s consent or a court order.
  5. Don’t “false friend” to collect from social media. Courts and ethics committees strongly disfavor “friending” under false pretenses. Thus, anyone investigating a user cannot represent him or herself as a “friend” in order to gain access and surreptitiously collect data.5
  6. Avoid self-collection. In contrast to e-mail, servers or hard drives, collecting social media data collection is akin to existing web collection practices using page captures or web crawlers. To ease the collection process, sites like Facebook offer a “download your information” option. However, as in any data collection scenario, self-collection risks spoliation, so it is always smarter to collect with the assistance of an expert consultant.
  7. Leverage a service provider to conduct review.  Arranging collected information for review poses several challenges, such as whether “families” must be maintained or whether each user’s collection should be presented in a single review document. These questions are better addressed when discussed with a service provider to ensure the most seamless review possible.
  8. Consider pertinent laws, such as the Stored Communications Act. Courts are beginning to order production of social media data. However, the Stored Communications Act (SCA) prohibits “Electronic Communication” and “Remote Computing” providers from divulging the content of its users’ communications and data.6 Case law relating social media production to the SCA is scarce; however, the Central District of California determined that social media sites acted as both Electronic Communication Service and Remote Computing Service providers—thus prohibiting production from a provider.7
  9. Don’t ban use of social media outright. According to a 2011 study, nearly 80 percent of Fortune Global 100 companies leverage at least one form of social media to conduct business.8 Policies that effectively ban social media in the workplace would rob an organization of a valuable tool for marketing products and connecting with consumers.
  10. Craft proactive policies that encourage prudent posting. In order to leverage the benefits of social media while mitigating the risks it poses for litigation, companies and counsel should craft proactive policies that manage employee use of social media. Such a policy should be well disseminated, detailing a no-privacy stance while reserving the company’s right to monitor usage. Furthermore, policies should be flexible to properly mesh the evolving role of these sites with existing information policies, applicable regulations and corporate culture.

Social media is here to stay. Practitioners and organizations must proactively address the impact these sites have on litigation and information governance. While the items identified above are a great start to understanding the potential issues posed by social media in the workplace, there is no “one size fits all” approach to managing this data. If you are unsure how to approach these difficult issues, engage a trusted custodian to navigate the tricky waters of these virtual mediums.

1Fed. R. Civ. P. 34(a) advisory comm. notes.

2 Debra Logan, Social Media Governance: An Ounce of Prevention, Gartner Research (Dec. 17, 2010).

3 See, e.g., EEOC v. Simply Storage Mgmt, LLC., 270 F.R.D. 430 (S.D. Indiana 2010); Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011).

4 Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010).

5 See, e.g., N.Y.C. Bar Assoc. Comm. on Prof’l Ethics, Formal Opinion 2010-2 (Sept. 2010); Phila. Bar Assoc. Prof’l Guidance Comm., Ethics Opinion No. 2009-02 (March 2009).

6 18 U.S.C. §§ 2710 et seq.

7 Crispin v. Audigier,Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010).

8 2011 Fortune Global 100 Social Media Study, The Burson-Marsteller Blog (Feb. 15, 2011), http://www.burson-marsteller.com/Innovation_and_insights/blogs_and_podcasts/BM_Blog/Lists/Posts/Post.aspx?ID=254

For Ediscovery, “Reasonable Inquiry” Rules Remain the Same

Although the advent of ediscovery poses significant challenges when interpreting many of the Federal Rules of Civil Procedure, practitioners must remember their ethical duty to their client and opposing counsel during discovery remains unchanged.

Fed.R.Civ.P. 26(g)(1) requires an attorney of record to sign every discovery response and certify that, upon a reasonable inquiry, the response is legitimate, consistent with existing law and made in good faith. Accordingly, when motions for sanctions arise, courts are empowered to determine what constitutes a “reasonable inquiry” on the facts of each case. If a court determines the party acted in bad faith, it may impose sanctions under Rule 26(g)(3). These sanctions take many forms, but decisions such as Qualcomm Inc. v. Broadcom Corp., in which the plaintiff was sanctioned $8.5 million for “monumental and intentional” discovery misconduct, are painful reminders of the consequences of missteps in the discovery process. Although the attorneys won their battle over sanctions levied against them individually for their role in the Qualcomm saga, the case lives on and demonstrates the reputational and personal impacts discovery may have on the modern practitioner.

In the wake of Qualcomm, courts are ordering sanctions and referencing Rule 26(g) with increasing frequency. However, the prudent attorney can avoid making the ethical missteps that Rule 26(g) condemns with a proactive approach that is consistent with the spirit of an open, thorough and transparent discovery process.

Adhering to the bedrock discovery principle that all parties be forthcoming with all relevant information they possess is paramount to satisfying the “reasonable inquiry” requirement. In Kosher Sports, Inc. v. Queens Ballpark Co., the Eastern District of New York found that the plaintiff’s attorney warranted 26(g) sanctions when he knew of, but did not disclose the existence of recorded conversations between his client and a relevant non-party when certifying a discovery response asking for similar conversations. Although the attorney later attributed his false certification to a “failure of recollection,” an unconvinced court ordered sanctions for bad faith certification of responses intended to cause unnecessary delays in discovery.

Additionally, in Limone v. United States, the District of Massachusetts discovered that during the government’s two-year-long discovery stonewalling effort, the FBI had not allowed the government lawyers handling the case to see the unredacted versions of the documents in question. Citing this behavior as a direct contradiction of the reasonable inquiry requirement under Fed.R.Civ P. 26(g), the court found the government’s actions constituted bad faith. Finding the government’s behavior warranted sanctions, the court scheduled a hearing to determine which costs were reasonably related to the bad faith conduct. Although the conduct in these cases may seem less significant in scope than in Qualcomm, practitioners must take note that courts are showing minimal tolerance for any level of deceitful behavior especially in consideration of the Rule 26(g) requirement. At the subsequent August 12, 2011 hearing, the court noted it appreciated the fact that trial counsel was between the “proverbial rock and a hard place” with an uncooperative client. However, the counsel’s client acted in bad faith regarding discovery practices and the court accordingly awarded $716,746.39 in total fees and costs for the plaintiffs’ attorneys.

In addition to being forthright, certification in the complex world of ediscovery also means that an attorney has made a reasonable inquiry into a client’s data practices and the technology being used to conduct searches. In Play Visions, Inc. v. Dollar Tree Stores, Inc., the Western District of Washington found the plaintiff’s consistent pattern of inaccurate responses, discovery addendums and other misconduct was largely a result of counsel’s inactive role in the discovery process. Finding sanctions appropriate, the court ordered the plaintiff’s counsel – who failed to make a “reasonable inquiry” before certifying his client’s false discovery responses – split the $137,000 in costs related to misconduct. Although the additional complexities of ediscovery might prove challenging, Play Visions depicts the dangers of relying on the client to do all the work. Understanding the intricacies of a client’s technology is imperative going forward.

While still relatively minor in total volume, sanctions referencing 26(g) are trending upward and often for less than egregious misconduct. The challenges posed by this trend require an attorney to adhere to basic discovery principles. Before certifying a discovery response, review its legitimacy and act accordingly. Failure to do so might cause irreparable harm to you and your client.

Case Law: Adams v. AllianceOne, Inc.

Case Law

Court Declines to Impose Sanctions Despite Inconsistent Production Formats

Adams v. AllianceOne, Inc., 2011 WL 2066617 (S.D. Cal. May 25, 2011). In this class action suit, the plaintiff requested $17,076.06 in sanctions arguing the defendant committed discovery abuse by producing over 20 million pages of documents in unsearchable PDFs. In response, the defendant argued a PDF was the most useable format available because data extraction from its third party, proprietary software storage system rendered the data unreadable “mush” that could become readable only via printing (impractical due to the volume) or PDF conversion. Further, the PDFs could be searched using commercially available software. Finding the plaintiff did not specify a desired format and noting that past production practices do not dictate future requirements absent a party agreement, the court found no basis on which to impose sanctions. The court additionally found the information was usable and searchable, that translating data between formats was permissible under the Fed.R.Civ.P. and that there was insufficient evidence the defendant acted with willful intent. Although the court remained “less than pleased” with the defendant’s past discovery delays, it withdrew its informal recommendation for sanctions and denied the motion.

Commentary

Production problems continue to plague practitioners despite having rather clearly dictated requirements included in the Federal Rules of Civil Procedure and case law from around the country. In 2010, of the 39 percent of cases that addressed production issues, 27 percent involved production disputes. A separate 18 percent of cases addressed various production considerations (but did not involve sanctions).

In this case, the plaintiff filed for sanctions claiming the defendant violated its production and discovery obligations by producing unsearchable PDFs. However, because the plaintiff did not specify a particular format upfront, the court refused to impose sanctions after finding the format was within the bounds of the Federal Rules of Civil Procedure. This highlights the importance of discussing production formats early at the meet and confer. To have a productive discussion, counsel must be prepared and understand what the best production options for the case are taking into account associated review and production expenses. Production is one part of the ediscovery puzzle that can be negotiated and agreed upon early, theoretically eliminating future disputes which only serve to waste time and money. Act proactively now and save headaches later on.

W.D. Pennsylvania Institutes New Special Masters Program

W.D. Pennsylvania Institutes New Special Masters Program

The Federal Rules of Civil Procedure were amended in 2006 to address the growing complexities of electronic discovery. The Amendments brought a great amount of clarity, but five years later, many problems persist and ediscovery continues to be a challenging and expensive process. Because ediscovery is driven by technology, its rate of change far outpaces that of the Federal Rules. As a result, more local jurisdictions have begun their own initiatives to tackle ediscovery’s challenges 

The latest effort is out of the Western District of Pennsylvania. On November 16, 2010, the Board of Judges approved the establishment of the Electronic Discovery Special Masters (EDSM) program to assist litigants in certain cases where ediscovery issues may arise.

When ediscovery issues arise, the court or the parties can decide to appoint an EDSM from a special pool of candidates previously approved by the court. To qualify as an EDSM, the candidates must meet specific criteria set by the court. The court’s Alternate Dispute Resolution Implementation Committee, chaired by Judge Joy Flowers Conti, developed and approved the required selection criteria which includes active bar admission, demonstrated litigation experience (particularly with electronic discovery), demonstrated training and experience with computers and technology, and mediation training and experience.

If appointed, the court will set the scope of the EDSM’s duties which may include, but are not limited to, developing protocols for the preservation, retrieval or search of potentially relevant ESI, developing protective orders to address concerns regarding the protection or confidential information, monitoring discovery compliance and resolving discovery disputes. The EDSM may also present findings of fact or conclusions of law to the court; however, these must be issued as a report and recommendation which will be subject to de novo review and opportunities for objection by the parities.

While it is still too soon to assess the effectiveness of the new EDSM program, another high-profile, local ediscovery program reported significant success in the use of discovery liaisons. The Seventh Circuit Electronic Discovery Pilot Program noted in its May 2010 report on Phase One of the multi-phase program that the participating judges “overwhelmingly felt the [program]” had a positive effect on the test cases, and “[i]n particular, the judges felt that the involvement of ediscovery liaisons required by [the program] contributes to a more efficient discovery process.” (emphasis added).[1]

 The Seventh Circuit’s findings and the basis for the EDSM program are encouraging, and reinforce the notion that many of the problems in the ediscovery process stem from a general lack of knowledge which ediscovery liaisons can provide until the bench and bar at large catch up. Time will tell if the EDSM program is successful, but in light of the consistent difficulties seen in ediscovery case law, any attempt to improve the process will likely be worthwhile.

For a complete list of the current EDSMs, visit http://www.pawd.uscourts.gov/Applications/pawd_edsm/SM_Search.cfm and click “Search for a Neutral” with all fields left blank.

Metadata – You Be the Judge

Metadata – You Be the Judge

As we all know well, ediscovery is a relatively young area of the law that is changing and developing rapidly. The objective of this series is two-fold: (1) continue highlighting changes and developments and (2) actively solicit feedback on the substantive legal issues from our readership. With the introductory remarks taken care of, let’s move on to today’s discussion – metadata.

Metadata is essentially data about data. It “describes when a file was created, where it was stored, and what programs the computer uses to help access the file.”[1] When in “native” format, all electronically stored information carries associated metadata. Some of this metadata details user activity on a file, such as edits and save dates, while other forms consist of background data necessary to the operation of the file but hidden from view. As the ediscovery process continues to evolve, this inconspicuous data is becoming increasingly important. Depending upon the circumstances of the case, metadata can be anywhere from relatively insignificant to practically crucial. For example, metadata is critical to determining the integrity and authenticity of files.[2] Metadata is also essential to conducting effective searching during the review process. Yet, the current Federal Rules of Civil Procedure do not expressly require mandatory disclosure of this information, and absent court order or party agreement, appear to allow parties to exclude it from their production.[3] Indeed, Rule 34(b)(2)(E) states that if production format is not specified, parties may produce ESI in the form “in which it is ordinarily maintained or in a reasonably useable form.” (emphasis added). This generally allows parties to produce ESI in TIFF or PDF – which permit Bates-stamping – without any duty to include accompanying load files, for example.

Parties certainly have the right to request metadata prior to production under Rule 34(b), but at a time when so many attorneys are simply unaware of its importance, or existence all together, it is often overlooked until it is too late.[4] With the growing importance of metadata to the ediscovery process, the question becomes whether metadata should be considered an essential and mandatory part of initial disclosures.

Not To Produce Metadata

In Autotech Technologies Limited Partnership v. Automationdirect.com, Inc., the Northern District of Illinois noted that “[o]rdinarily, courts will not compel the production of metadata when a party did not make that a part of its request.”[5] This holding was echoed in the more recent case of Chapman v. General Board of Pension and Health Benefits of the United Methodist Church, Inc., noting that “parties who do not specifically request metadata are not typically entitled to it if the responding party has already produced the documents in another reasonably useable form.”[6] The District of Columbia reached the same conclusion in D’Onofrio v. SFX Sports Group, Inc.,[7] holding that “[b]ecause no such request [for metadata] has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata.” Indeed, the approach is consistent with the Sedona Principles interpretation of the Federal Rules of Civil Procedure, which noted that in developing the 2006 Amendments, the Advisory Committee rejected proposals to require production of metadata.[8] Instead, the Advisory Committee preferred the parties to discuss production and reach their own agreement, as directed under Fed.R.Civ.P. 26(f).[9]

Produce Metadata

In contrast, other courts have found that the growing importance of metadata renders it crucial to discovery. Judge Shira Scheindlin, author of the seminal Zubulake opinions, held “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.

Produce Metadata

In contrast, other courts have found that the growing importance of metadata renders it crucial to discovery. Judge Shira Scheindlin, author of the seminal Zubulake opinions, held “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” National Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). Although Nat’l Day Laborer limited this declaration to requests for public records under the Freedom of Information Act, much of the discussion regarding the production of metadata seemed to include general admonitions. Indeed, much of the legal community’s commentary regarding the opinion has believed it is intended to have a more general scope, or at least lay the groundwork for such a trend. Indicative of this is the fact that the court took note of The Sedona Principles: Second Edition’s about-face from the 2005 Sedona Principles, in which the Sedona Conference® now embraces the production of metadata even absent party agreement.[10]

The District of Colorado took this approach in Chevron Corp. v. Stratus Consulting, Inc.[11] when it considered the issue as a matter of first impression. Comparing Aguilar v. Immigration & Customs Enforcement [12] (heavily cited by Nat’l Day Laborer) and White v. Graceland College Center for Professional Development,[13] the court found the latter to be more applicable because the timing and authenticity of the documents were at issue in the case, and thus required production of metadata to be “reasonably useable” under Rule 34.[14]

Analysis

Although Chevron and White ordered metadata production because the specific circumstances of the case required it, very few cases do not depend upon the authenticity of authorship or timing of documents to some degree. Further, the “reasonably useable” requirement has been read to include efficiency considerations,[15] and because the availability of metadata can enhance the usefulness of most document review technologies, it can lead to reduced costs and a more effective review process. While leaving it up to the parties to address the issue in the Rule 26(f) meeting may seem to be an acceptable compromise, the practical realities illustrated in ediscovery case law have made it clear that facilitating an effective meet and confer session is difficult and rare enough already, without trusting the average, non-tech savvy attorney to explicitly request this relatively inconspicuous but extremely important information. However, expanding Rule 34 to require production of metadata also broadens the duty to preserve, which could increase discovery disputes and offset any gains realized from the change.

 
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