Post Process

Everything to do with E-discovery & ESI

Archive for September 27th, 2007

Case Blurb: Zubulake III; Presumptions and Standards for Cost-Shifting Arguments

Posted by rjbiii on September 27, 2007

Although “the presumption is that the responding party must bear the expense of complying with discovery requests,” requests that run afoul of the Rule 26(b)(2) proportionality test may subject the requesting party to protective orders under Rule 26(c), “including orders conditioning discovery on the requesting party’s payment of the costs of discovery.” A court will order such a cost-shifting protective order only upon motion of the responding party to a discovery request, and “for good cause shown.” Thus, the responding party has the burden of proof on a motion for cost-shifting. Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283 (S.D.N.Y. 2003).

In Zubulake I, I considered plaintiff’s request for information contained only on backup tapes and determined that cost-shifting might be appropriate. It is worth emphasizing again that cost-shifting is potentially appropriate only when inaccessible data is sought. When a discovery request seeks accessible data-for example, active on-line or near-line data-it is typically inappropriate to consider cost-shifting. Id.

The seven factor test from Zubulake III was posted here.

Editor’s note: Although the Zubulake decisions were foundations for current e-discovery law, and are referred to more than ever, please keep in mind that they were made before the enactments of the new amendments to the FRCP. Although many of the interpretations laid out by Judge Schindlin in the Zubulake decisions were codified in these amendments, there may be some divergence. Further, statutes numbers may have changed (or they may not have). I encourage you to do your own due diligence with respect to any case blurbs posted on our site, but especially those made before the enactment of the amendments to the FRCP. Thanks.)

Posted in 2nd Circuit, Back Up Tapes, Case Blurbs, Cost Shifting, S.D.N.Y | Tagged: , | Leave a Comment »

Craig Ball: ESI does not equal Native Data

Posted by rjbiii on September 27, 2007

Craig Ball writes that electronically stored information is not necessarily native data.

Reviewing the correspondence between the counsel, I spotted the problem. The e-mail was there, but in rich text format. Like many lawyers new to e-discovery, defense counsel regarded electronically stored information and native data as one and the same. They’re not.

The IT department had dutifully located responsive e-mail on the mail server and furnished the messages as RTF, a generic format offering easy access and electronic searchability. Any computer can read RTF, so it’s a reasonable choice. But it’s not the native format.

He goes on to explain that e-mail’s native file is the container file in which the message is stored. At the enterprise level, that might be and MS exchange database (extension = .edb) or a lotus notes database (extension = .nsf). On workstations, the container file will likely be an outlook database (.pst). By the way, an outlook database is merely a modified MS Access database. The messages are just entries in database fields, so the “native format” of a message is something of an exercise in creative deduction.

And because of that, Mr. Ball states:

How, then, do we realize the considerable benefits of native production for e-mail? The answer lies in distinguishing between production of the native container file and production of responsive, non-privileged e-mail in electronically searchable formats that preserve the essential function of the native source, sometimes called quasi-native formats.

I’ve not heard the term “quasi-native,” but it seems a reasonably serviceable name for the concept. The rest of his article discusses the way in which a quasi-native production would work.

Posted in email, Form of Production, Native Files | Tagged: , | Leave a Comment »

E-Discovery: Not just for the big cases

Posted by rjbiii on September 27, 2007

So reports

Divorce attorney Carol Goloff often hears stories from wives whose husbands have been unfaithful. The proof, she says, is in the printout.
“The spouse will always have the e-mails and instant messages,” said Goloff, who has offices in Northfield and Upper Township. “I have more than a dozen cases where we have the actual transcripts of the online conversation.”

When matrimonial bliss goes bust, attorneys are looking to technology – from laptops to BlackBerrys to E-ZPass – for evidence to build their cases. This new way of collecting information is called electronic discovery, or e-discovery, and it’s changing the way law firms do business.

“As a trend, it’s been the biggest development in civil litigation in decades,” said attorney John Coughlin, of the law firm Duane Morris in Princeton.

Because of the changes to information systems, their integration into daily life, and new collaborative technologies, data can be found in all sorts of places. No case is immune, and the presence of ESI in cases will be the rule in the future, if it isn’t already.

Posted in Articles, Discovery, Trends | Leave a Comment »

Selecting E-Discovery Vendors

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 in Best Practices, EDD Vendors, Effectively Managing E-Discovery, Trends | 1 Comment »