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Case Summary; Nat’l Day Laborer Org; 2nd Cir.; Adequacy of Searches under FOIA

Posted by rjbiii on September 18, 2012

Context: Three entities, the National Day Laborer Organizing Network; the Center for Constitutional Rights; and the Immigration Justice Clinic for the Benjamin N. Cardozo School of Law filed a lawsuit seeking compliance of targeted agencies to earlier Freedom of Information Act (FOIA) requests.  Requests were sent to: Immigration and Customs Enforcement (ICE); the Federal Bureau of Investigations (FBI); the Department of Homeland Security (DHS); and the Office of Legal Counsel (OLC).  The plaintiffs were seeking information related to “Secure Communities,” a federal program launched in 2008.  It has long been the practice for local law enforcement agencies to send fingerprints of individuals they’ve arrested to the FBI to be checked against those in the national criminal history database. 

 Under Secure Communities, those prints were also sent to DHS to be compared to immigration records.  Plaintiffs also requested information associated with the issue of whether and how local agencies could “opt-out” of the participation in Secure Communities. After the agencies conducted extensive searches involving thousands of hours and resulting in tens of thousands of records produced, Defendants and Plaintiffs cross-moved for summary judgment on the adequacy of the searches.

 Issues:  Requesting parties lodged two main criticisms of the agencies search protocols. 

 First, they contended that the agencies failed to conduct any searches over records of certain custodians who were likely to possess records. 

 Next, they argued that the producing parties failed to establish that those searches they did conduct were adequate. In elaborating on their second criticism, plaintiffs contended that many of the submitted affidavits were insufficiently detailed to permit a finding by the court of adequacy; and that where searches were described sufficiently, those searches were inadequate.

Legal Standard: A FOIA request at Summary judgment has different standards and burdens than would be the case for a litigant in a civil matter.  The burden to “prove” the adequacy of a search protocol is much heavier for the agency in this situation. That said, one must wonder in which circumstances listed below the heightened the standard makes a difference.  I’ll sprinkle commentary on this and other subjects throughout my summary of the court’s analysis below (always in italics).  A general point should be made on this, however.  FOIA cases are such that they invite analyses of search protocols and methodologies.  After all, the entire case centers around what was, or should be, produced. In a civil matter, litigants are likely to be granted greater levels of deference.  However, once the issue of e-discovery methodologies arises, the standards might not vary as greatly as one might imagine.  This is especially true if the court is presented with evidence that relevant documents were omitted from production.

 Another item to note is that the searches discussed here are associated with collection, rather than downstream processes occurring during processing or review.  Search protocols for collections deserve a heightened level of scrutiny.  If the protocol is deficient, data remains uncollected, and becomes susceptible to deletion or loss.  Narrowly tailored collection methodologies must be well designed.

 In order to win summary judgment under FOIA, an agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents. The agency must conduct a search reasonably designed to identify and locate the requested documents, but is not expected to take extraordinary methods to find the records. At summary judgment, an agency bears the burden of showing that its search was adequate.  It may do so by submitting affidavits or declarations containing facts illustrating the sufficiency of the search.

 Summary judgment is inappropriate where the agency’s response raises serious doubts as to the completeness of the search, where the response is patently incomplete, or where the agency’s response is for some other reason unsatisfactory.  A showing of tangible evidence that defendants have not met their burden may defeat a summary judgment motion.  A showing of bad faith is not necessary to defeat a motion for summary judgment.

 Defendant’s affidavits must identify the files searched and provide a general description of the agency’s file system, and articulate reasons why further searching would be unlikely to disclose additional relevant information.  Agencies must establish that they search all custodians who were reasonably likely to possess responsive documents, while setting forth search terms and “the type of search performed.”  The methods used during the search, and not the fruits of the search, are the primary determinants of a search protocol’s validity. However, evidence that relevant records were not released may influence any such analysis.

 

Analysis: 

Decisions on Whose Records Should be Searched

Failure to search an obvious custodian’s records for a year and a half is unreasonable and inadequate as a matter of law, perhaps especially in light of the 56 documents returned by a subsequent search.  However, no sanctions were applied for this failure, due to the rigorous search that the agency eventually did conduct.  Failure to search a leader’s records for a subset of the records associated with a specified time period is not justified when the leader is known to have been involved with the issue at hand outside of the targeted time period and the agency did not specify at what point in time the leader became involved in the matter in its affidavit.

An agency fails to meet its burden in establishing an adequate search when it determines an office was unlikely to possess relevant records despite the office having at least one employee involved in discussions on relevant matters, the office playing a direct role in the matter at issue, and the office being tasked with providing updates on the program at issue in the case. It also fails to meet its burden if the office only searches two custodians’ records while other custodians were intimately involved in the program at issue. 

An agency’s response that an office was not likely to have records is not rendered unreasonable by the fact that the head of that office appeared at a single meeting discussing the program at issue. 

An agency may not simply assume that an office or organization does not have relevant records merely because that office never responded to the agency’s request to search. An agency fails to meet its burden when it does not conduct a search of an office or organization known to have been involved in the program at issue, yet does not explain the lack of a search or declare that the office is unlikely to possess relevant records.

An agency is required to re-draft an affidavit when the initial document failed to relate in sufficient detail search methodologies used to investigate records held by outside contractors. Upon reviewing the revised affidavit, requesting party then may decide whether or not to continue to press their complaints on this item.

An agency meets its burden when an office searches its records and claims in an affidavit to have no relevant records where no evidence exists to suggest otherwise. Although requesting party’s to initial conclusion was reasonable that the office might possess relevant data given the offices’ work and a statement from one employee that he had been “tracking” the matter for some time, some degree of deference is granted to the producing party because they are more familiar with their work and record systems than are the court or requesting parties.

An agency fails to meet its burden when an office known to have significant amounts of responsive documents searches 22 of its active employees’ files, but fails to search the records of seven departed employees. 

Datasets of departed employees are often overlooked.  In those environments where everything associated with projects is stored on network shares, some of the more burdensome measures may be avoided.  However, those archives that are exclusive to that custodian and might contain relevant documents, such as e-mail, should be properly maintained and available for collection.  Similar issues arise with hardware or software application retirements.

An agency meets its burden when an office searches paper and electronic correspondence of a leader whose role likely doesn’t require that leader to generate her own documents that wouldn’t be shared with others.  The search over correspondence examined a universe of documents reasonably calculated to uncover all responsive documents.

An agency has the responsibility of following up on obvious leads, such as recipients of emails that discuss issues relevant to the matter.

Analysis of Search Methodologies 

In earlier times, custodians and searchers were responsible for becoming familiar with the scope of requests and examining documents individually to determine their responsiveness. Now, custodians use computers to do the searching, and knowing the precise instructions that custodians give their computers is crucial to determining the adequacy of a search.

In the past, a court largely relied on the discretion of the searching parties to determine whether a document was responsive; but at least in that era, courts knew that the searching parties were actually looking at the documents with their eyes. With most electronic searches, custodians never actually look at the universe of documents they are searching. Instead, they rely on their search terms and the computer to produce a subset of potentially responsive records that they then examine for responsiveness.

Defendants argue they need not disclose with meticulous documentation the details of an “epic search,” and that custodians should be trusted to execute searches correctly because they use the necessary skill set in their daily work.  The court disagreed, giving two rationales.

First, custodians cannot “be trusted to run effective searches,” without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that “contain reasonable specificity of detail rather than merely conclusory statements.”

Second, most custodians cannot be “trusted” to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context. Simple keyword searching is often not enough.

There is a “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.” And beyond the use of keyword search, parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents. Through iterative learning, these methods (known as “computer-assisted” or “predictive” coding) allow humans to teach computers what documents are and are not responsive to a particular FOIA or discovery request and they can significantly increase the effectiveness and efficiency of searches. In short, a review of the literature makes it abundantly clear that a court cannot simply trust the defendant agencies’ unsupported assertions that their lay custodians have designed and conducted a reasonable search.

When custodians do track and report their search protocol properly, the court’s determination of adequacy is highly context-specific.  Often, analysis of the effectiveness of criteria used to execute the search and an iterative process of criteria modification and re-execution of queries may be necessary to assure that a search is reasonably calculated to uncover all responsive material.

The involvement of custodians is instrumental to an effective collection protocol.  Custodians associated with the project or incident in question will often be able to identify the most significant sources of relevant data.  However, a search methodology which relies on custodians to execute complex technology-based searches is an inviting target for criticism.  The greater the number of custodians involved, the greater number of “searchers” exist who can be scrutinized.  Consistency may become an issue.  Did all custodians run the protocol with identical (or nearly identical) effort, attention to detail, and methods? Were all custodians sufficiently proficient with the technology used?  Was the documentation generated the same way in each collection? Finally, would any custodian have a motive to omit particular records from the collection?  A skilled, knowledgeable, and objective individual who would execute queries in consistent fashion would deflect many of the obvious criticisms that could be leveled at “self-collecting” custodians.

Plaintiff’s e-discovery expert argued that “there is no indication that [the agencies] undertook any analysis” to review the effectiveness of their criteria, and there is an “absence of any evidence of a thoughtful process in selecting and testing search terms.”  The court agreed that many of the searches weren’t “perfect.” In the absence of evidence showing the efficacy of the terms used, it is impossible to determine the adequacy the search protocol. While repeating “vast swaths” of the search to ensure adequacy is a waste of resources, and the costs to all parties would surely outweigh the benefits to plaintiffs, FOIA requires the government to respond adequately to requests.  Rather than revisit old searches, the parties must cooperate to design and execute a small number of new, targeted searches.

Here, the court continues the march towards numbers-based analyses. An iterative process that provides solid data to validate the initial search criteria, subsequent modifications, and decisions to omit certain data sources has become something of a Holy Grail.  But does a court really want to set a numerical threshold exempting data sources from further consideration? How does one calculate the proper number that triggers the determination that although some relevant documents may exist in a particular repository, the effort of collecting, processing, reviewing, and producing from an archive is not reasonable? Proportionality is a touchstone of the current process, but it is not clearly defined, and is generally tethered closely to the circumstances of individual matters.  Coming up with an “reasonableness quotient” may be beyond the abilities of the average court.

Custodians who should have searched their records must now do so.  A sample of the custodians who conducted searches but failed to provide the Court with appropriate details regarding the methodologies behind those searches must conduct new, fully-documented searches.  A smaller group of the custodians who listed the search terms but did not provide evidence on the efficacy of those terms must repeat the searches to allow the court to efficiently evaluate whether the initial searches were adequate.  The parties will need to agree on search terms and protocols, and might need to conduct testing in order to evaluate and refine those terms.

The parties may also agree to use innovative methods, such as predictive coding techniques, if desired.  The court then listed specific custodians that would be required to conduct new searches.

Here we see a court not only accepting predictive coding, but nearly recommending its use on its own volition.  In the opinion, at least, there is no reference to plaintiffs or defendants proposing “innovative methods.”  It is possible that the significant time, effort, and cost already associated with document searches—many of which must now be repeated—led the court to make the offer.

Posted in 2nd Circuit, Case Summary, FOIA, Judge Shira A. Scheindlin, S.D.N.Y, Search Protocols | Leave a Comment »

Case Blurb: McBride, Distinction made between whether to execute a search and “ability to find” data

Posted by rjbiii on March 10, 2011

[Requesting Party] claims that the defendants violated a government-imposed document preservation order if they are not able to produce [certain] e-mails. It is important to keep separate, and not conflate, two distinct concepts: whether an additional search for certain information should be conducted, and whether or not the inability to find certain information should be sanctioned. The first is a question of interpreting the Federal Rules of Civil Procedure, while the second is a matter of the application of the common law principle of spoliation.

U.S. ex rel McBride v. Halliburton Co., 05-CV-828 (D.D.C Jan. 24, 2011)

Read a case summary here, from Bow Tie Law.

Posted in 4th Circuit, Case Blurbs, D.D.C., Magistrate Judge John M. Facciola, Scope of Discovery, Search Protocols | Leave a Comment »

Court tells Artist to Come Clean

Posted by rjbiii on April 6, 2010

A federal court has ordered Shepard Fairey, the man behind the now famous “Hope” poster of Barack Obama to disclose ESI that was deleted, and to reveal the identity of the person behind the destruction of evidence. From the ABA’s story on the matter:

Fairey switched lawyers in the case last November after his then-counsel said in a court document that the artist had deleted electronic files to cover up a mistake about which photo he had used. The document, a motion for new counsel, said the events presented a potential for conflict of interest between Fairey and his then-lawyers.

Fairey is under criminal investigation in connection with the disclosure, according to court filings.

On Monday, [Judge] Hellerstein ordered Fairey and his companies to disclose how computer files were searched for relevant legal records, according to the AP story.

Posted in Articles, Data Management, Search Protocols | Leave a Comment »

Case Summary: William A. Gross Constr. Assocs.; Court Issues ‘wake up’ call to counsel on keywords

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.

Lessons learned:

  1. The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
  2. Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
  3. Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
  4. 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: | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Court helps to craft Search Protocol

Posted by rjbiii on March 28, 2009

This case involves a multi-million dollar dispute over alleged defects and delay in the construction ofthe Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York (“DASNY”) was the “owner” of the project. Non-party Hill International is DASNY’s current construction manager, and DASNY has agreed to produce Hill’s project-related documents and ESI to the other parties to this suit. The issue before the Court is the production of Hill’s emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hill’s unrelated emails.

DASNY’s proposed search terms included “DASNY,” “Dormitory Authority,” and “Authority,” FN1 and the names of the other parties to the action. DASNY also added “Court! in connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo” (since Hill worked on an unrelated project involving the Bronx Zoo). The other parties requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical” — you get the picture. DASNY correctly pointed out that use of such extensive keywords would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.

FN1: The Court is no keyword expert, but if one is searching for “Authority,” to also search for “Dormitory Authority” is clearly redundant.

Hill’s only contribution to the discussion was to agree that DASNY’s search [*10] terms were probably too narrow but the other parties’ terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard “Re” line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so — perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.

That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill). The Court ruled at yesterday’s conference that in addition to DASNY’s proposed terms (including variations on and abbreviations of party names), the search should also include the names ofthe parties’ personnel involved in the Bronx Courthouse construction. FN2

FN2: The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Need for cooperation and communication during E-Discovery

Posted by rjbiii on March 28, 2009

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar — even those lawyers who did not come of age in the computer era — understand this.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 at *13-14 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Tagged: | Leave a Comment »

Case Summary: Rhoads Indus.; Attorney Client Privilege, the Waiver of Privilege, and Reasonable Precautions

Posted by rjbiii on December 8, 2008

Case Summary: Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

In a question of the adequacy of a keyword screening protocol, the court entertains a motion to deem plaintiff had waived privilege as to approximately 800 inadvertently produced documents. Rhoads filed the action against Bldg. Materials Corp. of America (“GAF”) for, inter alia, breach of contract, and against R.W. Cooper & Co. (“Cooper”) for negligent misrepresentation.

Rhoads began preparing for the litigation in February, 2007. In June 2007, upon realizing that e-discovery would be extensive in the case, he hired Salvatore Gramaglia as an IT expert. Mr. Gramaglia, after conducting tests, Mr. Gramaglia purchased a license for “Discovery Attender” to be used in electronic searches. Mr. Gramaglia and Kimberly Buchinsky, an associate at Gowa Lincoln P.C., began identifying mailboxes containing relevant information to Rhoads’ project with GAF. The court stated that “Gramaglia and Buchinsky reasonably believed that the computer program would screen out all privileged materials.” Efforts to settle the dispute were unsuccessful, and on November 13, 2008, Rhoads filed the complaint. Discovery commenced shortly thereafter. Sam Washawer, a was bought in by Rhoads for the litigation. He discussed the scope of e-discovery with Mr. Gramaglia and Ms. Buchinsky, and observed the performance of Discovery Attender. He also conferred with Gramaglia and Buchinsky over the topic of search terms for searches.

During January and February of 2008, Gramaglia performed searches using terms supplied by counsel, initially identifying 210,635 documents as “being responsive.” His priv filter consisted of searching the “address line of all e-mails for these terms: *rhoadsinc* and either *gowa*, *ballard*, or *cpmi*. “Gowa” and “Ballard” represents Rhoads’ law firms, while “CPMI” refers to a non-testifying expert for plaintiff. This search resulted in the designation of 2,000 documents as “privileged,” although they were not placed on a privilege log at that time.

In response to the large volume of documents initially returned, counsel narrowed the responsive search criteria, reducing the total documents returned to 78,000 that plaintiff believed were responsive and non-privileged. Ms. Buchinsky then manually reviewed documents from specific mailboxes for privilege. She removed certain documents from the production, and entered them on a privilege log. Meanwhile, counsel also reviewed twenty-two boxes of hard copy documents for responsiveness and privilege.

On May 13, 2008, Rhoads produced to Δ’s, three hard drives containing responsive electronic documents, including the 78,0000 documents returned by the responsive “screen.”

On June 6, 2008, Rhoads produced two privilege logs to Δ’s, in response to a court order. One log was associated with Ms. Buchinsky’s manual review, while the other contained hard copy documents.

On June 5, 2008, Δ’s GAF notified Π’s counsel that some privileged e-mails may have been produced. Π immediately responded by asserting that no privilege had been waived, and that this was likely a case of inadvertent production. Over the next two and a half weeks, Π then conducted nine depositions and responded to Δ Cooper’s Motion to Dismiss before addressing the privilege issue.

On or about June 23, 2008, Ms. Buchinsky began reviewing the 78,000 e-mails produced as a result of the responsive searches executed in Discovery Attender. She generated a new privilege log identifying 812 emails as privileged, producing it to Δ’s on June 30, 2008 as an attachment to a letter invoking FRCP 26(b)(5)(B) to have Δ’s sequester the inadvertently produced documents.

On August 19, 2008, Δ Cooper filed a Motion to Deem that Plaintiff had waived the Privilege to the approximately 800 documents. Δ GAF filed a motion joining Cooper’s motion on August 25, 2008. Defendants did not dispute that the production was inadvertent and that the software purchased by Rhoads was designed to ferret out privileged documents. Defendants did argue that Rhoads’s technical consultant and counsel were not sufficiently careful to review the software screening and to take steps to prevent disclosure when it appeared obvious that privileged material had filtered through the screening procedure.

On November 5, 2008, the first hearing on the waiver of privilege was conducted. All three privileged logs were produced. Mr. Gramaglia and Ms. Buchinsky testified as to the method of creation of the logs, and their relationship to each other. Rhoads admitted that 2,000 e-mails previously designated as privilege had not yet been disclosed in a privilege log. Ms. Buchinsky testified to her belief that a manual review of all 78,000 emails would have resulted in the timely identification of those documents in a privilege log. The court then ordered that any documents not on a privilege log as of the date of that hearing should be produced, absent exceptional circumstances.

After the hearing, Rhoads inspected the 2,000 documents earlier set aside, but not identified in a log, as privilege. The results of this inspection were discussed on a hearing on November 13, 2008. Rhoads concluded that 941 documents were duplicative. Of the 1059 unique documents, 511 were responsive, consisting of 335 privileged documents and 176 non-privileged documents. Of the 335 privileged documents, 215 had been previously identified in other logs. Rhoads agreed to produce the 176 responsive non-privileged documents, and generated a fourth privilege log. The court expressed its opinion that Rhoads might still retain privileged and un-logged documents.

The court then weighed the facts using the five factor test laid out in Fidelity & Deposit Co. of Md. v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996). These factors are:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production.
(2) The number of inadvertent disclosures.
(3) The extent of the disclosure.
(4) Any delay and measures taken to rectify the disclosure.
(5) Whether the overriding interests of justice would or would not be served by relieving the party of its errors.

On the first factor (reasonableness taken to prevent inadvertent disclosure), the court found that the following factors favored the plaintiff (producing party):

1. Plaintiff purchased a special software program, Discovery Attender, for the purposes of complying with discovery in this litigation.
2. Plaintiff’s technical consultant (Mr. Gramaglia) conducted trial searches prior to purchasing the software and was satisfied with its reliability and accuracy.
3. Mr. Gramaglia was experienced with Rhoads’s computer system.
4. Plaintiff believed that its search terms would pick up all attorney-client communication.
5. Plaintiff did not use “Warshawer” or “Costello” (outside counsel) as search terms because counsel believed Gowa was included on all e-mails going to the client.
6. Plaintiff did not include “privileged” or “confidential” as keyword search terms because all Rhoads e-mails use these words in the signature line at the bottom of every e-mail, and thus use of these words would have identified every Rhoads document as privileged.
7. Ms. Buchinsky spent over 40 hours reviewing documents for privilege before production. Additional attorneys spent significant hours on the privilege review.

The court found the following factors favored defendants (requesting parties):

1. Plaintiff should have used additional search terms to weed out potentially privileged documents, especially the names of all of its attorneys. Here the court cited Bensel v. Air Line Pilot Ass’n, 248 F.R.D. 177, 180 (D.N.J. 2008).
2. Ms. Buchinsky had no prior experience doing a privilege review and her supervising attorneys did not provide any detailed oversight.
3. Plaintiff’s search for privileged documents was limited to e-mail address lines (as opposed to the e-mail body). Therefore any potentially privileged e-mails (as defined by Plaintiff’s search terms) that were subsequently forwarded outside of Rhoads and either Gowa, Ballard, or CPMI would not be captured by its search.
4. Plaintiff produced documents that its limited search should have caught. Therefore Plaintiff not only failed to craft the right searches, but the searches it ran failed. Plaintiff has no explanation for this.
5. As Stanley notes, relying exclusively on a keyword search for the purpose of conducting a privilege review is risky, and proper quality assurance testing is a factor in whether precautions were reasonable. Victor Stanley, 250 F.R.D. at 257, 260. Here there was no testing of the reliability or comprehensiveness of the keyword search.
6. Plaintiff’s only testing of its search was to run the same search again

On the second factor, the number of inadvertent documents produced, the court found this fact favored plaintiffs:

1. The number of documents inadvertently produced represent a small percentage (1-2%) of the total production.

The court found these facts weighed in favor of defendants:

1. 800 inadvertently produced documents plus at least 120 privileged documents that this Court now orders be produced is still a large number of documents regardless of the percentage produced.
2. The court in Stanley found that 165 documents was a sufficiently large number to favor waiver of the privilege.

The court stated that nothing in the record indicated whether the third factor (the extent of the disclosure) weighed in favor of one party over the other.

On the fourth factor (Any delay and measures taken to rectify the disclosure), the court found these facts favored plaintiffs:

1. Plaintiff immediately responded to Defendant’s e-mail that some potentially privileged documents had been produced by stating that production was inadvertent and inquiring which documents Defendant was referring to;
2. As relied on in Fidelity, Plaintiff was under a tight discovery schedule at the time it was notified of the inadvertent production. Fidelity & Deposit Co., 168 F.R.D. at 522. Ms. Buchinsky was helping prepare for nine depositions taken over the course of twelve days. Plaintiffs also had to respond to Defendant Cooper’s Motion to Dismiss during this time.
3. Plaintiff invoked the remedial measure of FRCP 26(b)(5)(B) to have the inadvertently produced documents sequestered at the same time it produced the June 30th privilege log (Ex. D-1), three weeks after learning of the disclosure.
4. Plaintiff was willing to produce a cleansed hard drive (i.e. without the privileged documents) to Defendants in September, but Defendants refused the hard drive.
5. Defendant did not file their Motion to Deem that the Privilege was Waived until two months after Plaintiff produced the June 30th privilege log.

Those facts favoring defendants:

1. Plaintiff had abundant time to review its own documents and segregate any privileged documents before it started the litigation and also before it began producing documents in May 2008;
2. The crunch and time pressure that Plaintiff claims it suffered in June 2008 were caused by Plaintiff not providing adequate resources (e.g. attorneys or paralegals) to the privileged communication issue;
3. Defendants had to bring Plaintiff’s error to its attention instead of Plaintiff catching its own mistake (cites Victor Stanley).
4. It took Plaintiff over three weeks to produce a privilege log of the inadvertently produced documents once it was aware of its mistake.
5. The June 30th privilege log required Defendants to cross-reference each document produced to them against the log to check whether documents were in fact privileged. Plaintiff did not offer Defendants a cleansed hard drive until September.
6. Plaintiffs did not offer suggestions to rectify the inadvertent production until October, after many depositions had been taken.

On the final factor (Whether the overriding interests of justice would or would not be served by relieving the party of its errors), the court found these facts weighed in favor of the plaintiffs:

1. Plaintiff has shown general compliance with the three conditions of Rule 502, although considering the factors in the prior case law, Plaintiff is responsible for the confusion and delay noted above;
2. The loss of privilege would be highly prejudicial to the Plaintiff;
3. Defendants have not demonstrated substantial unfairness that they have suffered because of their inability to review the privileged documents beyond having to cross-reference documents against the June 30th privilege log.

Favoring defendants:

1. Plaintiff should have conducted a more rigorous privilege review and allowing Plaintiff to retain the privilege in these documents may not deter similar conduct in the future.

The court then concluded its opinion by ruling the following:
Those documents that were never logged after designation (part of the 2000 e-mails initially designated as privileged, but not listed in a privilege log until after the Nov. 5 hearing) were not subject to protection, as a failure to identify privilege documents in a log in a timely manner violates FRCP 26(b)(5).

With respect to the documents that were inadvertently produced, the court stated that neither Victor Stanley or Amersham were controlling. The court stated that although the facts in Victor Stanley were similar to those in the instant matter, Judge Grimm’s analysis reflects, to a more significant degree than [the court] believe[s] appropriate, application of hindsight, which should not carry much weight, if any, because no matter what methods an attorney employed, an after-the-fact critique can always conclude that a better job could have been done. The court found that factors one through four favored defendants, while the fifth strongly supported plaintiffs. As defendants have the burden of proof as the moving party, the court concluded that this burden had not been met, and privilege was not waived for these documents.

Posted in 3d Circuit, Attorney Client Privilege, Case Summary, E.D. Pa., Judge Michael M. Baylson, Privilege, Privilege Log, Search Protocols, Waiver of Privilege | Leave a Comment »

Case Blurb: Rhoads Indus.; Keywords and Emails

Posted by rjbiii on December 8, 2008

The advent of electronically stored information (“ESI”) has been widely discussed and has already resulted in amendments to the discovery rules. Keyword and name searches are frequently employed as an initial method to screen and sort documents, but they are not foolproof. For instance, privileged communications frequently creep into e-mail “chains,” but may appear only to some participants in the chain depending on a user’s application of the “reply” and “forward” commands. These issues [invariably] led to at least some of Rhoads’ inadvertent disclosures.

Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

Posted in 3d Circuit, Case Blurbs, E.D. Pa., email, Judge Michael M. Baylson, Key Words, Search Protocols | Leave a Comment »

Mirror, Mirror, on the wall…

Posted by rjbiii on June 24, 2008

Wired has a set of twin articles out addressing life in the age of the Petabyte. A Petabyte is 1024 Terabytes, which is 1024 Gigabytes.

The internet came into being as a tool to enhance communication and collaboration. And it has. But it has also changed the behavior of its users, and many of those actions are now logged and stored. Combine that with a growing array of tools that record and store representations of human activity (CCTV, PDA’s etc…) and you can see that more than ever, there is a growing mass of data logging the details of individual, group, and global behavior. In the vernacular of copyright, records of our actions are now, more than ever, “fixed in a tangible medium,” and available for all sorts of purposes that wouldn’t have been possible in even the recent past.

Wired’s article on the “Petabyte Age” has a chart illustrating the differences in size between a Terabyte, with various data points in between. To cut to the chase, a Terabyte is viewed as a $200 hard drive that holds 260,000 songs, while a Petabyte is the total information “processed by Googles servers every 72 minutes.” If you have a moment, click on the above link…there are some interesting data points noted.

While the first article is interesting, the second article, The End of Theory, brings home the cogent point. The article proposes that the availability of statistics based on real behavior, rather than on imperfect models, will transform science:

Sixty years ago, digital computers made information readable. Twenty years ago, the Internet made it reachable. Ten years ago, the first search engine crawlers made it a single database. Now Google and like-minded companies are sifting through the most measured age in history, treating this massive corpus as a laboratory of the human condition. They are the children of the Petabyte Age.

In the words of the article, More is not just more, “more is different.” Google research director, Peter Norvig, is quoted as saying that “All models are wrong, and increasingly you can succeed without them.” The world is becoming a great big database.

Or perhaps just a series of smaller databases. The question we face in e-discovery concerns the rapid identification, organization, and cataloging of disparate types of data. In light of discussion over the effectiveness of search terms by Judge Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D.Md. May 29, 2008 ), it seems certain that judicial scrutiny of search criteria formulation, and the objections to that formulation from the opposition will only increase.

Wired describes our brave new word as one in which:

[] massive amounts of data and applied mathematics replace every other tool that might be brought to bear. Out with every theory of human behavior, from linguistics to sociology. Forget taxonomy, ontology, and psychology. Who knows why people do what they do? The point is they do it, and we can track and measure it with unprecedented fidelity. With enough data, the numbers speak for themselves.

The use of these statistics in the legal arena will be something to follow closely. Could they be used to measure “community standards,” for example? Lawrence Walters, a defense attorney in a Florida obscenity case, argues that they can be used to help clarify what in the past was purely subjective. A New York Times piece has the details:

In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

In the movie, The Neverending Story, the hero (named Atreyu) is forced to view his reflection in a mirror that reveals to him “who he really is,” stripped of all flattering notions. The Age of the Petabyte gives us a mirror, of a sort, to look into and reveal things about ourselves that we might have otherwise disputed. Mr. Walters is trying to use that mirror, and hold it up for the Florida jurors. Whether his mirror is sufficiently objective is a discussion for another time, but we will see these methods used more frequently over time. Atreyu handled it. It will be interesting to see what we do with it.

Posted in Articles, Data Manipulation, Data Sources, Search Protocols, Trends | 1 Comment »

Case Blurb: O’Keefe; Expert Testimony needed to dispute search methodolgy in court

Posted by rjbiii on June 15, 2008

Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 RICH. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008), available at http://www.thesedonaconference.org/content/miscFiles/Best_Practices_Retrieval_Methods_revised_cover_and_preface.pdf. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.

United States v. O’Keefe, 537 F. Supp. 2d 14, 23-4 (D.D.C. 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRE 702, Magistrate Judge John M. Facciola, Search Protocols | 1 Comment »

 
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