All posts tagged production

It’s Your Turn! Vote Today for the National Law Journal’s ‘Best of 2016’

The polls are open, and it’s awards season. Whatever your persuasion, it’s your turn to vote. The National Law Journal recently announced the finalists for its ‘Best of 2016,’ and Kroll Ontrack is proud to be nominated in NINE categories!

  • Best end-to-end litigation consulting firm
  • Best end-to-end ediscovery provider
  • Best technology assisted review ediscovery solution
  • Best data and technology management ediscovery provider
  • Best data recovery solution provider
  • Best managed document review services
  • Best managed ediscovery and litigation support services provider
  • Best online review platform
  • Best case management software

From now until Friday, February 5, you can vote in the annual reader’s choice survey. This is your chance to rate the products and services you’ve been using in litigation. And it’s an opportunity for those of us in the industry to receive valuable feedback.

While you don’t have to answer every question, we greatly appreciate your support and your feedback – thank you for taking the time!

It’s time to vote.

Case Law: Play Visions, Inc. v. Dollar Tree Stores, Inc.

Case Law

Plaintiff Corporation and Counsel Sanctioned for Discovery Misconduct

Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011). In this intellectual property litigation, the defendants sought discovery sanctions in response to the plaintiff’s motion for voluntary dismissal, alleging a persistent pattern of discovery-related misconduct. In response to the defendants’ production requests, the plaintiff initially pointed the defendants to 360 boxes of unsorted records. Even though the plaintiff certified that its production was complete, the plaintiff’s counsel e-mailed multiple addendums to discovery, many times requiring the defendants to scramble to meet court deadlines or necessitating extensions. Although the plaintiff certified that none of its records existed in electronic form, it eventually turned over some of the demanded ESI, claiming the accessibility of the database was unknown because “no one bothered to ask” the company’s IT consultant (plaintiff’s counsel also put the CFO and CEO in charge of discovery responsibilities). Citing this litany of discovery mishaps, the court found sanctions appropriate and awarded the plaintiff over $137,000. Further, because the plaintiff’s counsel did not abide by Fed.R.Civ.P. 26(g)(1), which requires lawyers to make a “reasonably inquiry” before certifying discovery responses, the court ordered him to share the burden of the sanctions.

Commentary

This case should teach any potential litigant the importance of being proactive in discovery and forthright with the other party and the court. The plaintiff’s problems stemmed from a failure to think ahead. The plaintiff – and the plaintiff’s counsel – should have conducted a thorough effort to determine what records it had, where it kept them and what its retention policy was. Instead, the plaintiff reactively produced documents whenever the defendant found out that the prior production was insufficient.

Further, the court was notably frustrated with the fact that the plaintiff repeatedly submitted false certifications regarding the completeness of the discovery and the existence of ESI. The court concentrated on the fact that the defendants relied on these certifications to their detriment when responding to the plaintiff’s motions, thus providing the basis for many of the sanctions. Simply put, counsel must actually take steps to ensure that discovery is complete or ESI does not exist. The plaintiff’s counsel failed to be an active player in the process and he felt the court’s wrath in the form of sanctions along with his client.

Bottom line: Understand where your client’s data lives and what the applicable retention policies are. Simply relying on the client to do the discovery work for you will more often than not lead to negative consequences for you both personally and professionally.

Want to learn more about the facts and issues within this case? Download the latest edition of the ESI Report today!

Case Law: SPM Resorts v. Diamond Resorts Mgmt., Inc.

Case Law

State Court Finds Order that Parties Split Costs of Neutral Forensic Expert Contrary to Rules of Civil Procedure

SPM Resorts v. Diamond Resorts Mgmt., Inc., 2011 WL 2650893 (Fla. App. 5 Dist. Jul. 8, 2011). In this business litigation, the plaintiff (who is the defendant in the underlying case) sought certiorari review of a circuit court decision ordering it to pay $20,000 – and potentially more in the future – to conduct computer searches to comply with the defendant’s (the plaintiff in the underlying case) discovery request. The plaintiff argued the court order was unreasonable and unduly burdensome, and marked a departure from the “essential requirements of the law.” Agreeing with the plaintiff’s arguments, the court believed ordering the plaintiff to split the costs associated with engaging a computer expert to inspect its computer systems was unreasonable. Further, the court noted that “placing a substantial financial burden on a party relating to the production of its adversary’s document request does nothing more than require a party to fund its adversary’s litigation” which is not permitted by the Rules of Civil Procedure. Accordingly, the court granted the plaintiff’s request and quashed the trial court’s order.

Commentary

Although we typically feature federal cases on this blog, we came across this recent state court ruling and felt it presented an opportunity to explore an important conversation: Who should pay for discovery costs?

Cost-shifting is available for parties; however, it is certainly not guaranteed. Courts have different avenues for determining whether to shift costs onto the requesting party, and consider such factors as data accessibility, availability of information from other sources, total cost compared to amount in controversy and resources of each party. Case law over the years demonstrates that cost-shifting arguments must be made early and be supported by hard facts rather than generalized objections claiming the requests are “unduly burdensome” and “unreasonable”.

Although cost-shifting is an option, we are still left at our original question that we would like your comments on. Who do you feel should pay for discovery – the requesting or responding party? Why?

Case Law: Offenback v. L.M. Bowman, Inc

Case Law

Court Chides Plaintiff for Not Reviewing Own Facebook Account for Responsive Information

Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011). In this personal injury case, the defendants requested an in camera review of the plaintiff’s Facebook and MySpace accounts, arguing the plaintiff’s claims of physical and psychological impairment made relevant any evidence that documented the plaintiff’s social life, physical capabilities and emotional state of mind. To the extent that such information was relevant under Fed.R.Civ.P. 26, the plaintiff agreed that limited public information on his Facebook account was discoverable and provided the password to the court (the plaintiff claimed he could no longer access his MySpace account). Upon review, the court agreed to the relevance of a limited amount of photographs and postings that reflected the plaintiff continued to ride motorcycles, went hunting and rode a mule, and ordered production of this information. In a closing footnote, the court stated it was confused as to why intervention was necessary since the parties agreed that at least some of the information was relevant. The court further noted the plaintiff should have reviewed his own Facebook account for potentially responsive information, only soliciting the court’s assistance if a dispute remained.

Commentary

The discoverability of social media continues to be a popular topic throughout the industry. Now we want to know – what is your company or firm doing to address social media? Have you encountered the need to preserve, review and produce this evidence?

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.

Case Law: B & B Hardware, Inc. v. Fastenal Co

Case Law

Court Admonishes Parties for “Armed Combatant” Approach to Discovery

B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011). In this discovery dispute, the plaintiff sought to compel production and requested a hearing to determine what the defendant had done to meet its obligation to produce responsive ESI, forensically image hard drives and conduct a search of 1,182 backup tapes (estimated to cost $84,854,704.90). Characterizing the plaintiff’s motion as peremptory, the court determined the plaintiff failed to abide by Local Rule 7.2(g) of the U.S. District Court for the Eastern District of Arkansas which requires attorneys to confer in good faith before filing a motion to compel. Further, the court noted the defendant produced approximately 31,000 documents within the response period, thus fulfilling its production obligations. Admonishing the plaintiff’s actions, the court declined to compel discovery or grant a hearing. Regarding the issues of forensic imaging and backup tapes, the court found the defendant sufficiently raised objections on the grounds of undue burden and scope, denied the motion and warned the parties to “act less like armed combatants and more like highly skilled professionals” going forward.

Commentary

This case provides an excellent example of a party being too eager to “jump the gun” and file a motion to compel discovery responses. As the court noted, the defendant’s time to respond and produce the requested ESI had not even expired; in fact, the defendant produced the required documents before time ran out.

This case also demonstrates the increased pervasiveness ESI is having throughout jurisdictions nationwide. The Eastern District of Arkansas is not one we read opinions from often (more typically the “major” decisions come from states like New York, California, Florida and Texas) but it is important for practitioners to remember that ediscovery is not limited to a particular state or territory. Practitioners must educate themselves on ediscovery best practices and procedures on a general scale, and then take efforts to understand the local obligations they must fulfill. In this case, plaintiff’s counsel had a duty under the Local Rules of the district court to meet and confer in good faith prior to filing a motion. The plaintiff failed to do so and was admonished by the court. Getting on the court’s bad side is never where a practitioner wants to be. Thus, parties must be familiar with local rules and customs, and model their behavior accordingly.

Case Law: In re Facebook PPC Adver. Litig.

Case Law

Court Orders Parties to Meet and Confer to Develop Discovery Plan and Resolve Production Disputes

In re Facebook PPC Adver. Litig., 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011). In this breach of contract litigation, the plaintiffs sought resolution of various production disputes including a disagreement regarding the development of an Electronically Stored Information (ESI) Protocol. Rejecting as speculative the defendant’s concern that entering an ESI Protocol would frustrate and slow the discovery process, the court ordered the parties to meet and confer to develop an ESI Protocol in light of the “clear thrust of the discovery-related rules, case law, and commentary,” including the Federal Rules of Civil Procedure, case law and the Sedona Conference® that suggest communication is crucial to a successful discovery process. Turning to the production disputes, the court prohibited the defendant from using a secure and restrictive document-viewing website in lieu of actual production, finding the website was unduly burdensome, inefficient and unnecessary in light of a two-tiered protective order. The court also ordered the defendants to reproduce unusable, non-searchable files – including an 18,000 page customer complaint database – in their native format, disclose relevant source code, and meet and confer to determine the appropriate method of production for proprietary documents relating to the dispute.

Commentary

In this case, rather than producing certain documents, the defendant uploaded them onto website, watchdox.com that provided the plaintiff with viewing access, but gave the defendant the ability to limit it in significant ways: restrict access, track viewer activity, set document expiration dates and prohibit searching, annotating and printing. The defendant’s justification for the use of this service in lieu of actual production was that it was necessary to protect the disclosure of “extremely sensitive and confidential” documents. As noted in the summary above, the court denied these justifications and noted that the two-tiered protective order (which the defendant agreed to be bound by) provided sufficient protection to obviate the website’s use. Accordingly, the court ordered the defendant to stop using the website and produce the documents in had uploaded to the plaintiff in a fully accessible form.

Although this opinion is relatively brief in length and scope, it involves certainly a creative attempt to circumvent the more traditional methods of production. After all, cases involving parties withholding documents altogether are very common, but a party offering only limited access via a secure portal is a relatively novel development in the ediscovery world.

This case demonstrates the importance of reaching an agreement regarding the use of these solutions at the meet and confer. The court’s opinion seems to indicate that if the parties had agreed to use the restricted viewing technology before discovery began, it may have been permitted. Taking the time to meet and confer and negotiate mutually beneficial production agreements can pay dividends by potentially avoiding unnecessary, expensive discovery disputes and protecting important party-specific interests.

Want to learn more about this case? Listen to our recent ESI Report podcast that delves into case facts, specifics and lessons to be learned

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.

Are “Document Dumps” Unconstitutional?

Are “Document Dumps” Unconstitutional?

Producing mountains of electronically stored information (ESI) is an unfortunate hallmark of the ediscovery process, but when productions are especially voluminous or unmanageable, they earn the ignominious title of “document dumps.” In civil litigation, these are frowned upon as a form of discovery misconduct and may be considered as a factor for imposing sanctions. In criminal proceedings, however, the stakes can be much higher, and the prospect of sanctions provides cold-comfort for individuals who may soon find themselves behind bars because a document dump prevented them from preparing a full defense.

In United States v. Salyer, 2011 WL 1466887 (E.D. Cal. April 18, 2011), U.S. Magistrate Judge Gregory Hollows declined to order the government to contribute to the creation of a common, searchable database to hold the government’s production of roughly 1-2 terabytes of information. The “mass of documentation” was collected over a ten year investigation into alleged racketeering, fraud and antitrust violations by the defendant, a former CEO of a large food product distributor. The court reasoned that the lack of clear benefit to the parties, the substantial costs involved and absence of clear authority on the matter militated against it recommending such action.

The Southern District of Florida, however, saw a similar situation differently in U.S. v. Perraud, 2010 WL 228013 (S.D. Fla. Jan. 14, 2010). In this case, District Judge William Zloch adopted the Report and Recommendation by Magistrate Judge Robin Rosenbaum ordering the government to direct the defendants to the “universe of 5,000 records” from which it planned to rely and, additionally, to provide them with both an exhibit list and hard copies of the exhibits within ten days prior to trial.

The court primarily focused on Federal Rule of Criminal Procedure 16(a)(1)(E), which requires the government to provide defendants access to information that may be presented against them at trial. The court noted that while the plain language does not require the government to specifically “identify the various subsets of evidence” it plans to use at trial, it also “does not endow the government with the right to drown a defendant in a sea of irrelevant, or even tangentially relevant, documents” and if it did, this “might well present problems under the Fifth (due process) and Sixth Amendments (speedy trial).” However, the rule was saved, the court held, by Rule 16(d)(1) which permits the court to grant appropriate relief with respect to discovery for good cause.

Applying this constitutional failsafe to the circumstances of the case, Judge Rosenbaum held that legal authority including, inter alia, the defendant’s constitutional rights to due process and a speedy trial compelled the government to – at a minimum – narrow the production scope to a manageable level. While this may raise concerns that the government’s prosecution strategy could be revealed, the court noted the approach taken in United States v. McDade, 1992 WL 382351 (E.D. Pa. Dec. 11, 1992) directing the government “to the best of its good-faith ability, to tell the defense of any discrete parcels of material that it [did] not plan to use at trial” should mitigate this concern (emphasis in original).

Procedural due process is basically a guarantee that any process which seeks to deprive someone of life, liberty or property will be fair to the defendant. Concomitantly, the Sixth Amendment requires the entire process to be expeditious. Together, the two ensure a fair and accurate result is reached. Document dumps, however, fly in the face of both requirements, as they unquestionably cause delay and burden. In the criminal context, it is not hard to see how this could lead to an impermissible miscarriage of justice. Even with document dumps aside, as the term tends to connote a least a minimal level of culpability, the volume of ESI as well as the costs and time to manage it are rapidly increasing in all cases.

The U.S. courts have traditionally viewed justice as being furthered by full disclosure, but when is it enough, and what happens when we have too much?

Case Law: DL v. District of Columbia

Case Law

Court Imposes Sanctions for Extreme “Unheard Of” Discovery Abuse

DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011). In this class action dispute concerning free public education under the Individuals with Disabilities and Education Act, the defendant filed a motion to reconsider the grant of the plaintiff’s motion to compel production and the court’s determination that privilege was waived for all e-mails yet to be produced. On the day the court was scheduled to issue its opinion, the plaintiffs’ counsel informed the court the defendants had produced thousands of e-mails days before trial and were continuing to “document dump” after trial concluded. The defense counsel claimed the District was understaffed, committed supplemental searches that yielded tens of thousands of additional e-mails, discovery was voluminous and there were not “enough bodies” to complete the process before trial. Denying the defendants’ motion, the court cited the “repeated, flagrant, and unrepentant failures to comply with Court orders” and “discovery abuse so extreme as to be literally unheard of in this Court.” The court also repeatedly noted the defendants’ failure to adhere to the discovery framework provided by the Federal Rules of Civil Procedure and advised the defendants to invest time spent “ankle-biting the plaintiffs” into shaping up its own discovery conduct.

Notable Quotes

This opinion contained quite a few notable quotes that were not incorporated into the case summary. Here are some of the court’s words that explain the magnitude of its displeasure with the defendants’ discovery shortcomings.

  • “April 6, 2011, though, turned out to be only the beginning of the next outrageous chapter in the ongoing discovery saga that has come to define this case.”
  • “[E]xpeditious and just resolution of cases and controversies is this Court’s abiding lodestar.”
  • “Yet even after being called out in a [2008] Court order, the District – its head apparently buried in the sand – remained committed to its corrupt production strategy.”
  • “Discovery disputes are ‘for better or worse, the daily bread of magistrate and district judges in the age of the disappearing trial.’” (Citing Lee v. Max Int’l, LLC, 2011 WL 1651640, at *2 (10th Cir. May 3, 2011).
  • “But as bad as the District’s violation of multiple discovery orders was, that wasn’t its most appalling discovery abuse in this case. That ignominious designation is reserved for the District’s violation of Rule 26(e)’s duty to supplement its discovery responses.”
  • “The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through any of the Rule-based mechanisms…”
  • If the court had not ordered the defendants’ privilege waived, “the delay would have overcrowded this Court’s already congested trial calendar and simultaneously and unfairly increased the costs for both parties…”
  • “The District had countless opportunities to stop ignoring its discovery obligations. It chose not to, and it should not be surprised that its misconduct has caught up with it.”
  • “Disciplined adhered to [the Federal] Rules and [court] Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process.”
  • “The District would be well-advised to invest the time it’s spent ankle-biting the plaintiffs for various alleged discovery abuses in bringing its own conduct in line…”
  • “In short, this is a prime example of the lesson many learn as children: When you point one finger at another, three point back at you.
 
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