Case Blurb: Benefirst; Good Cause Analysis-Seventh Factor

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors four and five: The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; and Predictions as to the importance and usefulness of the further information;]

The parties resources.

While the Defendant has understandably engaged in a lengthy discussion of the cost of production, neither party has provided the court with any information about their resources. BeneFirst does represent that they no longer have a full time staff and that in order to retrieve the images that they would have to hire temporary help. At the same time, as previously noted, the Plaintiffs have significantly narrowed the breadth of their request and therefore, the time and cost for BeneFirst to produce the requested information should be significantly reduced.

Given the lack of information available to the Court, this factor is neutral.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Dealing with Search Criteria

A recent post of ours cautioned readers to be careful on formulating, and to use some method of verifying, their initial assumptions. We refer to initial assumptions with respect to EDD as assumptions on keywords, effective date ranges, and data sources that must be preserved for an electronic discovery project.
Law.com has posted an article discussing keyword searches, and calls attention to one danger of not carefully considering the formulation of search criteria:

The results of a recent e-discovery keyword search should have come as no surprise. Working on a case related to a specific transaction, the attorneys requested production of all documents containing the word “buy.” Despite being cautioned against this broad search, they were reluctant to heed the warnings, and many unrelated documents were incorrectly deemed responsive. Unfortunately, it takes a $750,000 mistake like this one for some people to understand the benefits of using a strategic approach to keyword selection.

If this had been my project…well, never mind. As I have said repeatedly, it is essential for the initial assumptions used in extracting data for review to be thoroughly vetted, because the filter ultimately determines what documents the reviewer sees. Searches that are too broad cost time and money. Searches that are too narrow will miss vital data, and could cost the client even more in the long term (by skipping over helpful information or by landing them in hot water with the judge). The importance of the process of building a verifying a list should not be underestimated.

That said, keywords are not the panacea. New technologies, using concept-based ontologies and techniques continue to evolve, and will move us beyond the era of the boolean keyword search.

Electronic Discovery Burden is hardly new

Duane Morris partner Eric Sinrod writes about the “new burden” of electronic discovery for CNET:

Almost a year ago the Federal Rules of Civil Procedure governing the discovery of electronic data were amended. While the changes were designed to reduce litigation costs, we’ve seen just the opposite.

I think he gets off on the wrong foot immediately with this opening paragraph. The changes were not, in my opinion, primarily designed to reduce litigation costs. Rather, they were meant to give guidance to courts and disputants on handling electronic discovery. Part of the amendments were aimed at reducing the burden of data that isn’t “reasonably accessible,” because of, inter alia, high costs. In fact, his essay goes awry even before the first paragraph. The very headline, “The new e-discovery burden,” is inaccurate, at least with respect to legal obligations. Relevant computer records were, even before the new amendments, considered discoverable. If there is a new burden, it is because of a combination of business practices (we will save everything ever generated) and certain technological developments (cheap and efficient storage devices, advances in collaborative and distributive computing technologies, etc…). But the amendments stay true to traditional legal principles.

He does make a nice point about the expansion of the definition of the term “document:”

The amendments broadened the definition of items subject to legal discovery, ranging from “documents” or “data compilations” to include all electronically stored information. Parties in a lawsuit can now demand from each other word processing documents, e-mails, voice mail and instant messages, blogs, backup tapes and database files.

I would argue, however, that the law is merely responding to technology, and it is technology that has truly expanded the definition, and the law is merely staying true to the goals of the discovery process. The article continues with examples from cases on such topics as retention policies and litigation holds, reasonable accessibility, cost shifting and sanctions. All provided with links to those decision.

Managing ESI. Or not.

We recently posted an article pondering whether corporations’ attempts to limit the use of email would become a trend. In that post, we also noted that corporate policies and legal processes designed to manage data were fighting an uphill battle:

The dichotomy is quite amazing. IT is moving rapidly toward more distributed and disparate types of data sources. Trends like tele-commuting, the greater us of PDA’s, black boxes in cars, etc. At the same time, corporate policies and the legal world are trying to better manage these data sources for purposes of litigation readiness and limiting exposure to legal liability. The struggle continues.

We just now stumbled on an article illustrating just how difficult a task it is to manage an ever increasing volume of data. From Metro Corp Counsel, Jerry Barbanel and Thomas Avery of Aon Consulting note that use of emails is growing at a 30% rate. [HT: EDD Blog Online] From the article:

The greatest cost factor for companies involved in large-scale litigation or governmental matters is the increasing cost of electronic discovery. Electronic discovery costs have been rising at double-digit rates, with no end in sight. The most significant factor that contributes to electronic discovery costs relates to the enormity of e-mails that have to be collected, processed, hosted, reviewed and produced. With the amount of e-mails created by a company growing at a rate of 30% annually, it is critically important for companies to master an understanding of this technology as the potential costs of electronic discovery could prove to be devastating.

The article also sheds light on another fact of life: the increasingly disparate forms which sources of data take, such as PDA’s and external mail clients like Yahoo!. As the job of finding, collecting, filtering and reviewing data becomes more and more difficult, requiring ever more specialized skills, one might think that the legal world would be paying attention. One would be mistaken, however, according to a post on Thinking E-Discovery. While the post focuses on addressing the issue of EDD early in the litigation, and specifically, during depositions, Dennis Kennedy remaks that:

[A]ll the attention [to the new amendments to the FRCP regarding ESI] seems to have limited effect

I must agree, and I am confused about it. I am continually surprised by the lack of knowledge (and urgency) that exists in both the law firm and in-house counsel environments. The further we move away from the new amendments to the civil rules, the less tolerant courts will be of excuses by companies and counsel that they were unprepared to deal with ESI.