Last year the Salmon P. Chase School Of Law at Northern Kentucky University sponsored a symposium on E-Discovery, and subsequently released an issue of its Journal chocked full of articles on the subject, including one of mine, entitled Avoiding an E-Discovery Odyssey (PDF). Now that entire issue is available online for free. There is some interesting stuff in there. Happy reading!
Archive for the ‘Effectively Managing E-Discovery’ Category
Posted by rjbiii on February 5, 2010
Posted by rjbiii on March 28, 2009
William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)
The opinion addressed the creation of a search protocol in this case over “alleged defects and delay in the construction ofthe Bronx County Hall of Justice.” The court began by lecturing counsel, and the district’s bar in general, over its (evidently perceived lax) attitude toward formulating search criteria:
This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.
The lesson began, the court complained that counsel had not adequately communicated in order to arrive at a suitably agreed-upon search criterion, and the protocol that had been formulated was not the result of a sufficiently methodological process:
This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.
The court then stated that it found itself in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information…”
After making certain additions to the keywords comprising the search criterion, the court then cited opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) (Grimm, MJ.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, MJ.) for supporting the supposition that formulating keywords “requires careful advance planning by persons qualified to design effective search methodology” and designing search protocols “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” The court continued by noting that the “best solution” was for opposing counsel to cooperate in formulating a search protocol, and strongly endorsing the Sedona Conference’s Cooperation proclamation.
- The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
- Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
- Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
- Even an admittedly imperfect protocol, if the above elements are present, may suffice.
Posted in 2nd Circuit, Case Summary, Effectively Managing E-Discovery, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols, The Sedona Conference | Tagged: cooperation | Leave a Comment »
Posted by rjbiii on October 22, 2007
This is the Fourth Installment of Effectively Managing E-Discovery.
Which actions or omissions may give rise to sanctions is partly dependent upon the circuit in which one practices. First, the attorney approaching a discovery project of any size should not have any misguided notion that judges are apt to forgive a lack of familiarity of his client’s system. The Conference of Chief judges stated in a report it issued 2005:
While the manner in which this encouragement should be given will, of necessity, depend on the procedures and practices of a particular jurisdiction, the court should establish the expectation early that counsel must be well informed about their clients’ electronic records. FN1
FN1: Conference of Chief Judges, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (Rev. Draft, Sept. 2005). See also, Leonard Dutchman, Preserving Data in the Wake of Amended Rule 37(f), http://www.law.com/jsp/legaltechnology/PublArticleFriendlyLT.jsp?id=1160643922347 (last visited October 30, 2006) (“It is ultimately counsel’s duty to preserve and gather discoverable ESI.”); Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y May 23, 2006), *5 (citing Zubulake V) (“Counsel has the duty to properly communicate with its client to ensure that ‘all sources of relevant information [are] discovered.’ “); Craig Ball, EDD Showcase: Worst Case Scenario, Law Technology News (Oct. 31, 2006) at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1162215324083, (quoting J. William Speros, referring to attorney liability and explicitly mentioning Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) and In re Worldcom, 2004 WL 768573 (S.D.N.Y. 2004)) (“We’ve seen courts hold parties responsible for failing to supervise their vendors.”)
As a matter of principle, sanctions should be used sparingly. Fed. R. Civ. P. R. 37(b)(2). The Federal Rules of Civil Procedure authorize a court to issue, as sanctions for disobeying discovery orders, the following orders (not an exclusive list):
- An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
- An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; and
- An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
Federal courts also possess an inherent authority to impose sanctions for the conduct of litigants in counsel regardless of whether the behavior at issue would be covered specifically under a rule or statute. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327, at *2 (S.D. Ohio Sept. 5, 2006). The court is given a great deal of latitude in deciding what, if any, sanction should be imposed for bad conduct. Id. What kind of conduct may be penalized? The spectrum of attorney or disputant behavior subject to sanction is large, but for the purposes here, non-production or late production of relevant documents is behavior subject to sanctions, as is spoliation, and the destruction of evidence. Spoliation may be defined as “the failure to preserve evidence that is relevant to pending or potential litigation. See, e.g., Jimenez-Sanchez Restaurants, LLC, Civ. No. 05-1131 (JAG), 2007 WL 1098667, at *1 (D. Puerto Rico March 5, 2007).
The purpose of sanctions is to “deter parties from engaging in [prohibited conduct], place the risk of an erroneous judgment on the party who wrongfully created the risk, and restore the prejudiced party to the position it would have been in had the misconduct not occurred.” Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La. July 19, 2006). A court has “broad discretion to fashion appropriate sanctions on a case by case basis.” Phoenix Four, Inc., 2006 WL 1409413 at *3. The form in which sanctions can appear include:
- Exclusion of “spoiled evidence.
- Allowance of an Adverse Inference;
- Allowance of further discovery by the party injured by the misconduct;
- Monetary sanctions;
- Dismissal of a case (for misconduct by the plaintiff or cross-plaintiff).
- Default Judgment.
Although the flexibility accorded district courts is understandable, clarity is diminished because of it. Additionally, clarity suffers further from the fact that particular sanctions may be imposed for differing standards of conduct, depending upon the circuit in which the case is taking place.
Posted by rjbiii on October 14, 2007
The third installment in our “Effectively Managing E-Discovery” series.
The process of determining those documents needing to be produced may only begin once it has been found and identified. What are the obligations with respect to conducting an investigation of the responding party’s data enterprise of the party and counsel?
To begin with, counsel does not relieve his obligation by a mere request to his client, but must actually engage in a search for information. Phoenix Four, Inc., 2006 WL 1409413, at *5 (“Counsel’s obligation is not confined to a request for documents; the duty is to search for sources of information.”). “Counsel has the duty to properly communicate with its client to ensure that ‘all sources of relevant information [are] discovered.’” Id. (citing Zubulake V). The court in Phoenix Four, Inc. emphasized that under new Rule 26, the duty does not entail extracting information from sources to which access is difficult, but “rather to ascertain whether any information is stored there.” Phoenix Four, Inc., 2006 WL 1409413, at *6. In order to accomplish this, counsel “should become fully familiar with its client’s document retention policies, as well as its client’s data retention architecture.” FN1. There are strong indications that counsel should not attempt to do this on his own, unless already endowed with a particularly strong level of technical expertise. Even then, it might be advisable to retain an expert possessing easily proven credentials and who might be seen as being somewhat objective.
FN1:Id. at *5 (citing Zubulake V). See also, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Conference of Chief Judges (Rev. Draft, Sept. 2005) (stating “[i]n any case in which an issue regarding the discovery of electronically-stored information is raised or is likely to be raised, the court should encourage counsel to become knowledgeable about their client’s information management systems and their operation, including how information is stored and retrieved.” The report continued: “[w]hile the manner in which this encouragement should be given will, of necessity, depend on the procedures and practices of a particular jurisdiction, the court should establish the expectation early that counsel must be well informed about their clients’ electronic records.”); U.S. District Courts (Kan.) Guidelines for Discovery of Electronically Stored Information (“Prior to the Fed. R. Civ. P. 26(f) conference, counsel should become knowledgeable about their clients’ information systems and their operation, including how information is stored and retrieved. In addition, counsel should make a reasonable attempt to review their clients’ electronically stored information to ascertain the contents, including archival, backup, and legacy data (outdated formats or media”).
The court in Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. 2007) illustrated the point, when it ordered:
The [responding party] must therefore conduct a search of all depositories of electronic information in which one may reasonably expect to find all emails to Peskoff, from Peskoff, or in which the word “Peskoff” appears. Once the search is completed, [responding party] must make the results available to [requesting party] in the same format as the electronically stored information was previously The [responding party] must therefore conduct a search of all depositories of electronic information in which one may reasonably expect to find all emails to Peskoff, from Peskoff, or in which the word “Peskoff” appears. Once the search is completed, [responding party] must make the results available to [requesting party] in the same format as the electronically stored information was previously made available. [The responding party] must also file a statement under oath by the person who conducts the search, explaining how the search was conducted, of which electronic depositories, and how it was designed to produce and did in fact produce all of the emails I have just described. I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.
Peskoff v. Faber, 240 F.R.D. 26, 31 (D.D.C. 2007).
More and more, courts expect counsel and their technical team to engage in a process that can be defended if challenged. FN2. The court’s scrutiny will likely focus on two factors: counsel’s selection of technical vendors; and the process used by counsel and its technical team to identify, harvest and process data. Id. One industry expert sees Phoenix Four, Inc., and similar cases, not only as “a mandate to engage experts,” but also an “obligation to select capable ones.” Worst Case, supra FN2 (quoting Michael Arkfeld). An attorney does not relieve himself of responsibility once he has turned engaged an expert, because “[i]t is ultimately counsel’s duty to preserve and gather discoverable ESI.” Worst Case, supra FN2 (quoting J. William Speros, referring to attorney liability with regard to vendor actions and discussing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) and In re Worldcom, 2004 WL 768573 (S.D.N.Y. 2004)).
FN2: See, e.g., Craig Ball, EDD Showcase: Worst Case Scenario, LAW TECHNOLOGY NEWS (Oct. 31, 2006) at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1162215324083, [hereinafter Worst Case] (quoting Michael Arkfeld, “[t]he bottom line is that when you handle electronic or paper evidence, you need to include quality control standards that assure disclosure of all responsive evidence to the opposing side. These efforts must be reasonable and documented…[i]n my experience, the one thing judges insist on is that you take reasonable steps to diligently search, process, and disclose responsive discovery.”).
Once the selection of a technical vendor has been accomplished, the process utilized to find and process the data should be closely monitored. Recall that the court in Peskoff warned that it intended to examine the process used by the responding party. In another case of an investigative process coming under scrutiny, a court clarified that it had required the producing party to reveal search terms it had used to identify relevant documents in order to give the requesting party “an avenue to test or assess the scope of the search terms.” In re CV Therapeutics, Inc. Securities Litigation, 2006 WL 2458720, at *2 (N.D. Cal ).
Posted by rjbiii on September 27, 2007
Ahh…a favorite topic (likely…not)! And the second installment on our series on effectively managing e-discovery.
The first item of business is to determine why (or even if) you need a vendor. Vendors fill niches from pre-dispute planning (document management, records management, providing a litigation hold plan) to data collection, to pre-review filtering and searching, to EDD processing, to providing Web-based review platforms for attorney review, for production, and for running Trial presentation systems, and for a hundred things in between. Some projects, especially smaller ones, are completely handled by outside counsel. A few corporations have processing capabilities in-house as well. In looking at large e-discovery projects, the management team (whoever is making the decision) has various models of vendor selection from which to choose.
First, there is an approach similar to that of hiring a general contractor. A knowledgeable and experience person is hired for the position of coordinator, or project manager who manages the project, on behalf the client company. This could be an attorney specializing in e-discovery law and related areas, or could be an expert who concentrates on the technical processes involved. One of the advantages of this approach is that allows some insulation for both the client and outside counsel with regard to liability for improper methodologies and approaches. The other main advantage is the one most hoped for: that the project is run expertly and competently, and is therefore free of any errors that might result in any substantial inefficiencies during the project itself, or (worse) deficiencies in production. Disadvantages include a lack of control over the process, and the requirement of fashioning an effective method of hiring the right manager. Also, that insulation that might be provided is certainly not absolute, as the hiring decision, and any progress monitoring program should be conducted with the thought of them holding up to a court’s scrutiny down the road. More often, either outside counsel or in-house counsel, or one of the litigation support professionals attached to the law firm or client end up managing the project. Disadvantages to this approach include the exposure to liability for the manner in which the project was managed and for any defects in the production.
No matter who manages the project, someone will have to collect, process, cull, house, review, and produce the documents. This can be a one-vendor solution (usually except for the “review” portion, often the domain of contract attorneys) or it may be broken down by segment and divvied up to vendors based on criteria such as price, competence, relationships, or some combination of such factors. A one vendor solution may reduce problems associated with communication and different technologies, capacities, and methodologies. Multiple vendors working together on large projects often are forced to reconcile incompatibilities in data formats, and must communicate clearly and frequently to avoid undue inefficiencies during the project. Personality differences and natural competitiveness must also be put aside for the sake of the common good. I’ve seen examples where minor mistakes were blown out of proportion by vendors who, upon discovering the issue, sent e-mails to everyone in the project team trumpeting their discovery. On the other hand, there is a level of quality checking that is accomplished by this arrangement.
It is my view that the process used to select a vendor (or vendors) is one of those key points of time in the litigation, with respect to discovery. A thorough vetting of a vendor’s capabilities, technology, experience and reputation is essential to defending that decision in the future should the need arise. Both law firms and corporate legal departments should request extensive information from candidates that outline their qualities necessary to the tasks they will be eligible perform. Preferred vendor lists should be built, examined periodically, and modified according to ever-changing circumstances. The primary purpose of the process is to select capable vendors. An important secondary purpose, however, is to craft a process that can be defended should something go wrong.
Posted by rjbiii on September 25, 2007
Yet another new series: Effectively Managing E-Discovery. This is the first installment.
Complex discovery projects in this digital era can intimidate attorneys and their clients alike. One reason for this is because that electronic discovery requires an understanding across several disciplines. Law, IT, records management, and compliance are some of those areas of knowledge from which any discovery team should draw. It is difficult for any one individual to have sufficient knowledge across all these areas, so communication between experts from these professions becomes important. And we all know that lawyers and IT people communicate with each other effortlessly, don’t we?
Even in the IT sector, electronic discovery can call on different knowledge bases. Archiving, back-up and restoration might be needed at the collection point in the process, while a programmers knowledge of file formats will be useful downstream during the processing of evidence; an expert in search engines might be needed to help cull down the data to a manageable size for “eyes on” review by attorneys; a dba might be needed to analyze and extract data from a customized database…the scenarios are endless.
Before we go further, we must also acknowledge that their is some abiguity with regard to when a “discovery project” actually begins. The legal standard is “reasonable anticipation” of litigation. There are a number of events that may trigger the “duty to preserve,” and some of those have been listed in under the duty to preserve tag. Because what creates this reasonable anticipation can take an infinite series of forms, there is no, and will never be, a complete list.
Any discussion on the complexities of a particular project begins with the IT enterprise housing the data. Before you can collect data, you must insure it is preserved. Before you can preserve it, you must identify which data sources (or custodians) possess relevant information. And this identification process is tied to such things as network topology, which users are involved in the projects associated with the pending litigation, and what practices are implemented by these custodians in storing their data. Merely identifying the appropriate custodians requires a knowledge of the legal nature of the dispute (is this IP, employment dispute, white collar crime?) and the nature of personnel assignments within the company. Who works on what projects? If some of the custodians have administrative assistants or secretaries, you can’t forget about them!
Issues that are dealt with include legacy systems, password protection, encryption, storage habits (how often are items backed up, restored, etc…), unmapped partitions, expensive or proprietary application formats (that e-discovery vendors will be unable to process). Are there any mirrored, or collocated servers?
Then, there are situations in which storage has been outsourced. What are the policies and procedures of wading through that data?
One worry of discovery team members is whether the scope of discovery goes beyond the bounds of the business’s IT enterprise. What would cause that? Well, mixed personal and business use on the same computer. Do users work at home on their own machines? Do employees use private, external e-mail accounts to send and receive work-related documents? Are “retired” computers given away without being wiped? Practices such as these expand the scope of scrutiny beyond the bounds of the company’s IT universe, and the prevention of these situations is best addressed in a company’s “acceptable use” and “document retention” policies.
Once data sources are identified, and effective measures implemented to preserve the data, a collection process that is defensible in court must be designed. Outside counsel, after addressing these issues with their own client, must also then assess the opponent’s data universe in the same manner, assuming that they will be requesting documents as well. So while outside counsel, playing offense, is trying to get a feel for how to get to the adversary’s documents, General Counsel is usually confined to playing defense, and making sure its own house is in order. Much of the GC’s best work can be done before any dispute hits, in implementing policies and processes smoothly integrate litigation holds and defensible collection into the data retention practices of the company. To insure a smooth handoff from GC to outside counsel, communication between the two is another critical component to a successful discovery project.
These factors must be looked at early on in the process. Some of them should be examined before the emergence of any dispute. I’m sure there are more issues early on, and any war stories are welcome. I’ll examine vendor management in my next post under this topic.