AL Case Blurb: Cooper Tire and Rubber; Supreme Court Adopts Modified Zubulake Test for Cost Shifting Decisions

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

“First, under the marginal utility approach, the more likely it is that the search will discover critical information, the fairer it is to have the responding party search at its own expense. McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001). Next, the court in Rowe created eight factors for consideration in the cost-shifting analysis, one of which incorporated the marginal utility test. 205 F.R.D. at 429. Finally, the court in Zubulake I modified the Rowe test to account for the fact that it interpreted the Rowe test as generally favoring cost-shifting, which had ignored the presumption that the responding party pays for discovery. 217 F.R.D. at 320. We agree with both the Rowe court and the Zubulake court that the marginal utility test is the most important factor. Furthermore, while we are guided by the remainder of the Rowe and Zubulake factors, we find that the proportionality test set forth in Rule 26(b)(2)(C)(iii)[, Fed.R.Civ.P.,] must shape the test. Thus, we modify the Zubulake rules by adding a factor that considers the importance of the requested discovery in resolving the issues of the litigation.

The eight factors are: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incxentive to do so; and (8 ) the resources available to each party. Rowe, 205 F.R.D. at 429.

The seven Zubulake factors are (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. 217 F.R.D. at 322. We agree with the court in Zubulake that the fourth Rowe factor (the purposes for which the responding party maintains the requested data) is not important.”

“Therefore, we will consider the following factors: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8 ) the relative benefits to the parties of obtaining the information. At all times we keep in mind that because the presumption is that the responding party pays for discovery requests, the burden remains with [Producing Party] CBRE to demonstrate that costs should be shifted to [Requesting Party]. See Zubulake II, 216 F.R.D. at 283.

Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229, 41-44 (Ala. Oct. 26, 2007)

Case Blurb: Search Cactus; Court lays out Protocol for Forensic Collection of Plaintiff’s Hard Drive

Post Process-Plaintiff Attorney objected to a forensics exam of his computer hard drive, a computer which he used both personally and professionally. The court, though noting the validity of issues raised, ruled for Defendants. In doing so, it appointed two forensics experts to act as officers of the court, and issued the following protocol:

[T]his Court ORDERS:
1. Within seven days of the date of this Opinion and Order, Plaintiff’s forensic computer expert shall mirror image both of Plaintiff’s computer systems’ hard drives and Plaintiff shall preserve this mirror image.

2. Plaintiff’s forensic computer expert shall then remove only Plaintiff’s confidential personal information from the mirror image of Plaintiff’s computer systems’ hard drives. Plaintiff’s expert shall provide Defendants with the protocol he utilized to remove the confidential information.

3. Plaintiff shall then provide Defendants’ computer forensic expert access to his computer systems’ hard drives.

4. Defendants’ forensic computer expert shall mirror image Plaintiff’s computer systems’ hard drives in approximately four to eight hours for each system. If the expert finds that this is not enough time, Plaintiff is expected to be reasonable in allowing some additional time. Defendant is expected to be considerate with regard to scheduling times that are less intrusive to Plaintiff and his business.

5. Defendants’ expert shall review his findings in confidence with Plaintiff prior to making any findings available to Defendants.

6. Plaintiff shall identify for deletion any information that is irrelevant and create a specific privilege log of any relevant information for which he claims privilege. The computer forensic expert shall remove the information claimed as privileged and provide all other information to Defendants.

7. Defendants’ expert shall provide Plaintiff with the protocol he utilized to remove the privileged information.

8. Forensic computer experts C. Matthew Curtin and Scott T. Simmons shall act as officers of this Court. Defendants shall be responsible for remunerating Mr. Curtin and Plaintiff shall be responsible for remunerating Mr. Simmons.

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 at *5 (S.D. Ohio Apr. 28, 2008 )

Case Blurb: Perfect Barrier; “native” e-mail format production appropriate

[Producing Party] produced the emails in electronic form on an disc that is computer accessible. Such discovery is clearly considered electronic discovery. Under Fed.R.Civ.P. 34(b)(2)(E)(ii),
[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
[Requesting Party] did not request that the emails be produced in a particular form, yet [Requesting Party] now asks this Court to force [Producing Party] to produce the electronic emails as Static Images with a bates-number identifier. [Producing Party] objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images.

[Producing Party] has already produced the emails on a disc in Native format. [Requesting Party] maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires [them] to submit the emails in the format in which it keeps them, Native format, and nothing more. While it may be more convenient for [Requesting Party] to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If [Requesting Party] wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.

Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable. [Requesting Party] can access, examine, and even print the communications. While [Requesting Party] may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with [Requesting Party]. [Producing Party] complied with Fed.R.Civ.P. 34(b)(2)(E) and is required to do nothing more.

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008 )

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.