E-discovery is a constantly developing topic in the legal world, and the word, “world,” should be taken literally.  Across the globe, different nations and their legal system are formulating new rules to tackle new discovery issues that can arise almost as quickly as new technology and means of communication can develop.  The only problem with this, however, is that different nations are addressing their e-discovery issues with different solutions.  This problem usually rears its ugly head when one of the parties in a lawsuit is a multinational company.  What is a British company supposed to do when it’s sued in an American because of a foul-up by its French Subsidiary?  Do they supply all of the e-discovery materials required by American courts?  What if e-discovery that the American court requires no longer exists because it never needed to be stored in the first place by   French or British?

The European Commission, the executive arm of the European Union (“EU”), responsible for proposing legislation and implementing decisions in addition to running the EU on a day-to-day basis and upholding EU treaties, recently took steps toward untangling this e-discovery web of confusion and contradiction.  The European Commission had previously established the working party, an independent advisory board charged with handling issues relating to data protection and privacy in the EU.

The working party recently addressed the issue of transborder e-discovery relating to data held in Europe that was required to be produced as a result of legal proceedings occurring in the United States.   It recognized that a certain tension had mounted as a result of disclosure obligations under American legal rules differing with data protection requirements in the EU,  the working party also recognized that this was particularly relevant to European affiliates of multinational companies that were getting caught while trying to balance their obligations as a result of American e-discovery demands in connection to litigation and the various data protection and privacy laws governing the transfer of personal information that also varied among the different countries within the EU.  The working party saw that there was a need to reconcile the U.S. litigation requirements and EU data protection provisions and as a result, recommended a set of guidelines to be followed by EU data controllers.  These guidelines were eventually adopted in February 2009.  Among the guidelines adopted were a number of provisions applicable to lawsuit parties, businesses, lawyers, courts, & governments.

One conflict addressed by the working party that is likely the most applicable to e-discovery problems is what is to be done when a foreign company has to concern itself with American document retention rules that may conflict with the rules in the country where the company operates.   Due to the fact that different countries each have different time limits for potential litigants to bring a claim, it was not practical for the working party to establish a particular uniform period of time for data to be stored.  Thus, the guidelines provide as a solution that data controllers in the EU should have a clear policy on data storage, management, and retention.   So as long as the policy comports with local applicable guidelines and the policy is adhered to, the data controller will not be found to be at fault with US law because US rules of civil procedure merely require that existing information be disclosed to the adverse party.   An exception to this, however, is that if there is data relevant to a specific, imminent litigation process, it should be stored even such storage would not otherwise be required by the data storage policy in order to prevent spoliation of evidence.  The guidelines also address the process to be followed when an American court, a “litigation hold of pre-emptive requirement that information be retained.  In such scenarios, the data storage policy and/or and data destruction policy for documents that may be relevant to the legal claim is to be suspended.

This is just one of many problems addressed by the working party.  Their recently adopted guidelines also resolve globally conflicting laws relating to e-discovery issues that include, but are not limited to disclosure of sensitive personal data, consent, proportionality, transparency, rights of access and erasure, data security, and transferring data to third parties.  As a result, any company that does business in the U.S. as well as the EU would be best served by familiarizing itself with the working party’s recently adopted guidelines.

Frank received his B.a. from Wesleyan University.  In addition to being an award winning gardener, he is a third-year law student at Seton Hall University School of Law and can be contacted at fgiantomasi@gmail.com.  After graduating, he will clerk for a New Jersey Superior Court judge.

The lesson here is twofold:  If you are going to depose witnesses regarding ESI, you must put the other party on notice of the scope of the deposition testimony being sought, or risk losing the opportunity to conduct further depositions.  But regardless of whether you are the party who asks or the party who answers, you must be sure to make every reasonable effort to resolve discovery disputes.

Plaintiff filed a 42 U.S.C.A. § 1981 claim, alleging that a stop by a store detective employed by Borders on December 2, 2005 was motivated by racial discrimination.  In response, defendant contends that plaintiff was questioned because the store detective saw him “place an item from the shelf of the store into a bag he brought into the store.”

Plaintiff served defendant with a notice to take a deposition pursuant to Rule 30(b)(6), which requires (1) that the organization being served designate a witness who can speak knowingly regarding the topic, and (2) that the party serving the organization define as clearly as possible the topics that will be covered in the deposition.

Plaintiff’s notice failed to mention the store’s email policies or any ESI in general; and instead stated only that the deposition would include discussion of defendant’s general document retention policies.  Defendant’s designated witness was unable to clearly articulate defendant’s document retention policies regarding email, and plaintiff therefore moved to have defendant designate another 30(b)(6) witness.

The Court first found that a reasonable lawyer reading plaintiff’s deposition notice would not be able to conclude that defendant’s email retention policies were going to be topics of discussion.  Further, the Court found that given the vast amount of business transactions conducted electronically, plaintiff should have specified that the email retention policy would be a subject of the deposition.  Lastly, the Court noted that there was no evidence that defendant had engaged in any behavior to suggest it knowingly destroyed any pertinent emails or that it failed to search conscientiously for relevant emails.

Despite the Court’s findings, the Court ultimately found that defendant’s document retention policies were relevant to the dispute and that the parties failed to try hard enough to resolve the issue.  Pointedly noting that “the potential legal fees in this case, thanks to the many discovery disputes, will dwarf the potential recovery,” the Court exercised its discretion to end the dispute by ordering defendant to answer a series of questions posed by the Court regarding email retention policies.

While plaintiff benefited from the Court’s order, he was ultimately denied the opportunity to depose a second witness using his own questions.

The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms.  But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian?  Does a document not directly linked to a specific custodian automatically become “nonresponsive”?

The plaintiffs and defendant Wyndham had reached a written agreement that Wyndham would produce ESI limited to “specific search terms and custodians” and that it would “complete [its] production by no later than February 16, 2009.”  The agreement defined the scope of the ESI as that based on documents responsive to a specific set of search terms and “limited to the list of 26 [Wyndham] custodians.”  The agreement also included a built-in punishment should a party fail to complete discovery within the agreed upon period:  Hard copy and ESI documents not produced by the deadline could not be used by either party in support of or to defend the plaintiffs’ imminent motion for class certification.

Wyndham sent the plaintiffs its initial production by the February 16 deadline, but it also produced an additional 30,000 ESI documents more than two months after the agreed upon deadline had passed.  And when Wyndham announced that it intended to allow its expert witness to use some of those additional documents in its fight against class certification, the plaintiffs filed a motion to strike.

Wyndham seemed to acknowledge that the agreement required it to produce all “responsive” documents by the February 16 deadline.  But it argued that the exclusion clause of the agreement—the prohibition on using the document to defend plaintiffs class certification motion—only applied to “responsive” documents not produced by the deadline, and that “nonresponsive” documents produced after the deadline were fair game.  Wyndham then argued that documents it produced late were nonresponsive because they did not come from one of the named custodians.  It explained that the documents were located on a shared file directory that was not linked to a particular custodian.  A Special Master assigned by the court agreed with Wyndham’s argument, concluding that because the untimely ESI did not come from a named custodian, it was not “responsive” according to the agreement between the parties, and thus was not untimely.

The district court for the Northern District of California rejected the Special Master’s recommendation and reasoning.  In addressing Wyndham’s excuse that it was unaware of the existence of the shared directory as its reason for failing to timely produce the ESI, the court quickly imputed knowledge of the shared directory to Wyndham.  Referring to named custodian Scott Grey, the court explained that “Mr. Grey, and therefore Wyndham, knew about this directory.”   The court accused Wyndham’s proposed custodian-based ESI search of containing “a major flaw, namely a directory full of potentially relevant documents with no custodian.”  The court refused to allow Wyndham to use the logic that a document not specifically linked to a named custodian is nonresponsive, and concluded that it was “[not] reasonable for Wyndham to ignore the problem and rely on an overly narrow and hyper-technical reading” of the agreement.  Finding Wyndham’s decision to not timely produce documents from the shared directory unjustified, the court ordered Wyndham to pick up the tab for both the plaintiffs’ motion to strike costs and the Special Master’s fees.

Wyndham could have avoided this ruling by carefully mapping out its custodian-based production and determining early on where key players in the dispute might have squirreled away documents.  Counsel, in directing the collection of ESI, should not overlook locations such as personal and shared folders on scanners, servers, and removable drives.

In High Voltage, the plaintiff filed a motion to compel the defendant to search for alternative sources beyond the initial production of documents for the selection of the VAULT mark.  This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff.

Predictably, the defendant was unwilling to shoulder the burden of reviewing the additional documents, as defendant reasonably believed it would not provide any new discovery that had not already been provided to the plaintiff.  However, the defendant was more than willing to allow the plaintiff to review the additional source of information by allowing the plaintiff to search through the additional sources for documents relating to the selection of the VAULT mark.

The court, citing Rule 26 of the Federal Rules of Civil Procedure, denied plaintiff’s request to compel the additional documents, finding that under Rule 26, plaintiff’s additional request was unreasonably duplicative and the additional material requested likely had already been produced to the plaintiff.  The court also found that the defendant made an unrebutted showing that the burden or expense of plaintiff’s proposed discovery outweighed its likely benefit.

Thus, if the defendant can show the court that it acted in good faith and complied with reasonable discovery requests, a motion to compel additional documents would be denied unless the benefits of additional discovery will outweigh the burden/expense.  Even though the court held against the plaintiffs, it still required the defendant to once again offer the plaintiff an opportunity to search through those additional documents at defendant’s place of business.  Plaintiffs would not be allowed unreasonably burden the defendant with additional document requests simply by making numerous requests for documents that may have already been provided.  If the Plaintiffs were to insist on the additional documents, they would have to do the work themselves and bare the costs.

In Stengart v. Loving Care Agency, Inc., the Court held that an employee could “reasonably expect that e-mail communications with her attorney through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.”  The Court also held that the company’s attorneys violated an ethics rule by reading the “arguably privileged” e-mails and by failing to alert the employee that they had them.  But the Court did unleash at least one surprise by announcing that even a seemingly bulletproof company policy on workplace computer use that claims the employer could read an employee’s attorney-client communications would not be enforceable if the employee accessed the communication through a personal, password-protected e-mail account.

Ever quickly peek at your web-based personal e-mail account while still at the office?  Yeah, many of us do, too; and we’d be willing to bet a ham sandwich that certain Justices on the New Jersey Supreme Court probably do, as well.  Peeking at her personal e-mail account while still at work is how plaintiff Marina Stengart ended up in front of those same Justices last winter.  After deciding to sue her employer on various employment discrimination charges, Stengart used a company-issued laptop to communicate with her attorney via her personal, password-protected Yahoo e-mail website.  At the time, Stengart had no idea that the laptop was automatically saving copies of each page that she viewed, to a temporary internet file cache folder on the laptop’s hard drive.  After Stengart quit and turned in the laptop, Loving Care forensically imaged the hard drive and discovered images of the e-mails Stengart exchanged with her attorney.  Believing that Stengart had waived any privilege claims, Loving Care’s attorneys cited one of the e-mails in an interrogatory answer.  That belief was supported, initially, by the trial judge who found that Stengart waived the privilege; but the trial court decision was reversed on appeal to the Appellate Division.

On challenge to New Jersey’s highest court, Loving Care argued that the attorney-client privilege did not attach to the e-mails because its company policy regarding computer and internet use at the workplace removed any expectation of privacy that Stengart may have had; and that she waived the privilege because she accessed her e-mail via the company’s computer and server.  The Court disagreed.  After first deeming Loving Care’s Policy “not clear” and as creating “ambiguity about whether personal e-mail use is company or private property,” the Court evaluated case law from other jurisdictions, giving particular attention to (and ultimately following) a Massachusetts case with nearly identical facts.

The Court considered factors by which an employee could be found to have a lesser expectation of privacy in attorney communications.  First, the court distinguished between the use of a company e-mail system as compared to a personal, web-based e-mail account (such as Yahoo or Gmail.)  E-mails transmitted via an employer’s e-mail account might be subject to less privacy than those sent via a personal web-based account.  Second, the Court noted that the physical location of the company’s computer might make a difference in the analysis, suggesting that an employee who works from a home office may be entitled to greater privacy than an employee whose communication is made via the company’s servers.  Third, the Court recognized that other jurisdictions have held that the existence of a clear company policy that prohibits personal computer use may diminish an employee’s expectation of privacy; but, as explained below, the New Jersey Court refused to consider the sufficiency of a company policy as a determination of whether the employer can pierce the attorney-client privilege.

In holding that Stengart’s e-mails were protected by the attorney-client privilege because she could reasonably expect them to remain private, the Court cited three reasons.  First, the Court noted that Stengart had both a subjective and an objectively reasonable expectation of privacy in the e-mails – she had used a password-protected account to access the messages and had not given her password to anyone at Loving Care.  The Court also noted that Stengart had not used the computer to conduct illegal activities.  Third, the Court seemed impressed that the e-mails contained the boilerplate language warning the reader that the information was only intended for the designated recipient and contained privileged attorney-client communications.  But, as mentioned above, the effectiveness of Loving Care’s “Electronic Communications Policy” on workplace computer use was not dispositive.

The Court determined that the Policy was ambiguous, lacked clarity, and failed to warn employees that even web-based e-mails could be forensically retrieved.  But, as the Court stated, even if the Policy were perfectly drafted, it would not be enough to pierce the attorney-client privilege:

[E]mployers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.  . . . [E]ven a more clearly written company manual—that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney client communications, if accessed on a personal, password protected e-mail account using the company’s computer system—would not be enforceable.

Declining to rely on other states’ case law holding that a clear company policy banning personal e-mails could diminish an employee’s expectation of privacy in attorney-client communications, the Court added that a “zero-tolerance policy can be unworkable and unwelcome in today’s dynamic and mobile workforce and [we] do not seek to encourage that approach in any way.”

What about Loving Care’s attorneys?  Should they have immediately returned the e-mails (which were plastered with the standard “CONFIDENTIAL . . . Attorney-Client communication” language)?  The Court thought so, and ruled that Loving Care’s attorneys violated professional ethics rules by “not setting aside the arguably privileged messages once it realized they were attorney-client communications, and failing either to notify its adversary or seek court permission before reading further.”  Noting the absence of an appearance of bad faith, the Court reiterated that the attorneys “should have promptly notified opposing counsel when it discovered the nature of the e-mails.”

To learn more about Stengart and its rise to the Supreme Court, visit our exclusive Stengart Watch feature which posts articles (and video) on each of the Stengart decisions and on related cases in other jurisdictions.

Suddenly find yourself at the wrong end of a trade secrets litigation?  Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry^® smartphones.  Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.

The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys.  The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions.  But you might be thinking: “A BlackBerry wiped clean? Who cares!  All the e-mails the other side could possibly want are readily available on the server.”  This type of thinking could get you in trouble.  Let’s see why.

After plaintiff Southeastern Mechanical Services, Inc. (“SMS”) prosecuted employees of a construction services company (“Defendants”) with theft of trade secrets, they obtained a court order requiring Defendants to preserve “all computer files, data, documents, or similar information on their computers” until otherwise notified.  The court also prohibited Defendants from “destroying any and all information and documents potentially relevant to” SMS’s claims.  Defendants’ in-house counsel properly requested employees to turn in their laptops and BlackBerrys, but seemingly failed to warn them to refrain from wiping the BlackBerrys’ internal memory.

The BlackBerrys ultimately made their way into the hands of SMS’s computer forensics expert who quickly determined that (a) they had been wiped clean, and (b) the “wiped-clean” condition was no accident.  Even the Defendants’ own forensic expert conceded at a deposition that only “intentional actions” would result in a full BlackBerry data wipe.  That was all the court needed to hear.

The court considered SMS’s requests to sanction Defendants by granting either (a) default judgment, (b) a ruling as to the improper use of trade secrets, or (c) an adverse inference jury instruction.  In Florida, a court may impose sanctions based on evidence spoliation when the opposing party, in bad faith, destroys evidence it had a duty to preserve and that had once existed.  The destroyed evidence must also be “crucial” to the other party’s case or defense.  Thus, for the court to justify issuing the sanctions requested against Defendants, it would need to conclude that the deleted BlackBerry data was crucial to SMS’s case.

With minimal deliberation, the court first concluded that “evidence existed at one time” on the BlackBerrys and that Defendants had a duty to preserve that evidence.  But was that evidence crucial to SMS’s case?  And had Defendants deliberately wiped the BlackBerrys in bad faith?

The “crucial” requirement was easy.  The court concluded that a “substantial and complete” destruction of data justified a finding that the destroyed evidence would have helped SMS’s case and its loss was prejudicial.

The court next noted that the BlackBerrys could have only achieved a “wiped” state following deliberate and intentional actions; and that it was “suspicious” that, following months of use, the BlackBerrys contained no “e-mails, text messages, calendar entries, or records of telephone calls.”  It all reeked of bad faith.  The court discounted the Defendants’ suggestion that SMS’s forensic expert could have accidentally deleted the files from the BlackBerrys.

Defendants argued that it didn’t matter that they had wiped the BlackBerrys before returning them because any e-mails that had been deleted were mirrored on their server, and they had already given SMS copies of those e-mails.

The court, however, was not impressed.  It pointed out that Defendants had used their BlackBerrys for both work and personal e-mail accounts; and the personal e-mail accounts were not mirrored on the employer’s server.  For one Defendant, the court calculated that approximately three weeks’ worth of potentially relevant data had been deleted.  Based on all facts at hand, the court granted SMS an adverse inference jury instruction based on the Defendants’ failure to preserve their BlackBerrys.

While this case dealt specifically with BlackBerrys, the lesson learned should be applied to any smartphone or other handheld device that can store data, including iPods, digital cameras, and GPS devices.  To avoid spoliation sanctions, make it clear to all employees that they should not perform any data wipes, system resets, scrubs, scours, or other similar actions once the duty to preserve exists.  Bottom line: don’t go near the “Wipe Handheld” choice in the “Security Options” menu.

By day, Laura J. Tyson handles e-discovery issues for a boutique litigation firm in Roseland, NJ, while at night she completes her J.D. at Seton Hall Law School in Newark, NJ.

In this March 2009 case stemming from a multi-million dollar construction dispute, the project owner agreed to produce all project-related emails and ESI from its non-party construction manager.  The issue before the Court concerned the production of the construction manager’s emails from its server, and how to separate unrelated emails from project-related emails.

In planning the search, the project owner suggested keywords specific to the names of the parties and the project, which were likely to be under-inclusive.  The other parties requested  the use of generic construction project keywords such as “build” and “claim” that would have triggered production of a vast amount of unrelated emails and ESI.  The non-party construction manager, not wanting to be involved in the litigation, offered very little assistance in the development of the search terms.  The parties’ inability to establish a keyword search compromise compelled the court to develop the terms of the keyword search, with little information and guidance from the parties.

Chastising the parties and counsel for these recurring problems, the Court emphasized the need for counsel to cooperate with each other and get adequate information from email authors and document custodians in order to successfully develop a keyword search.  The Court underscored the importance of advanced planning by those qualified to develop the search methodology, along with the need for quality control to assure accuracy and completeness of the search.  The party who selects the method must be able to explain it to the Court, including reasons for using the particular method, why the method was appropriate, and how it was properly applied.

Outside Counsel must cooperate when it comes to e-discovery issues.  In formulating and conducting searches of emails and ESI, obtaining input from clients, email authors, and ESI custodians is key; and the use of quality control methods assures accuracy and completeness of the keywords and search.  Not only will these techniques make the eDiscovery process easier and more reliable, but also courts now expect counsel to employ such methods without having to be told to do so.

While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client.  In one case, it may have cost one company $25 million.

Only six-months ago, in B & G Management v. Lexington Insurance, the United States District Court for the Middle District of Florida, Orlando Division, granted a motion for Rule 37 Discovery Sanctions brought by defendant Lexington Insurance Co. (“Lexington”) against plaintiff B & G Management (“B&G”) that effectively defeated B&G’s claim for $25 million in damages.

In that case, B&G filed a complaint against Lexington, its insurer, for breaching the commercial property insurance policy it issued B&G.  B&G had filed a claim with Lexington for business interruption losses allegedly incurred as a result of damage to its Treasure Island Resort caused by Hurricane Jeanne.  B&G’s claimed the $25 million policy limit.

Throughout discovery, time and time again, B&G failed to satisfy its obligation to search for, locate, and disclose electronically stored documents containing information relevant to B&G’s business interruption losses in accordance with Lexington’s discovery demands.  B&G also ignored court orders establishing discovery disclosure timeframes and mandating B&G’s production of certain documents.

Even so, B&G twice managed to side-step Lexington attempts for court ordered sanctions.  B&G’s luck ran out on Lexington’s third attempt.  The court granted Lexington’s motion for sanctions and, reflecting the severity of B&G’s misconduct, barred B&G from using the very information that could have supported its claim for $25 million in damages.

Yet, were B&G’s failures the result of sloppy work or a calculated business decision to deprive its adversary of the very information most beneficial to its case?  In the end it does not matter whether it was the former or the latter – B&G’s discovery failures led to court ordered sanctions effectively defeating its claim.

At the pre-trial Case Management Conference, the Court ordered the parties to submit estimates of the costs involved in the production of documents in searchable Tagged Image File Format (“TIFF”) with Optical Character Recognition (“OCR”) before it made a ruling on the format of electronic discovery.  OCR is how static images of text are translated into a format, via a computer software program, that can be searched or read electronically.  It is only used to render documents maintained in hard copy format, as opposed to electronic documents, searchable.  The Court noted that “OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents.”

The parties agreed that all documents would be produced in TIFF format, but the Defendant, S.C. Johnson & Son, Inc., argued that it should not have to perform the OCR process on these documents prior to production because, in Defendant’s estimation, the total cost of the OCR would exceed $200,000.

The Defendant, however, failed to provide the Court with a per page cost estimate or even the total number of pages on which it expected to perform the OCR process.  The Court also found it “difficult to believe that in the age of electronically stored information so much of the requested data is only maintained in hard copy format which would require OCR to be searchable” and concluded that “Defendant has failed to provide any support whatsoever for its estimate.”

Nonetheless, Defendant asserted that the cost burden of the OCR process should be shifted.  In Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y.2003); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y.2002), aff’d 2002 WL 975713 (S.D.N.Y. May 9, 2002), the Court held that cost shifting could be considered when the data was relatively inaccessible and formulated a seven factor test: (1) the extent to which the request was specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, when compared to the amount in controversy; (4) the total cost of production, when compared to the resources available to each party; (5) the relative ability of each party to control costs and the 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. Zubulake, 217 F.R.D. at 322. These seven factors should not be weighted equally; rather, they should be considered in numerical order of descending importance, where factors one and two are the most important and factor seven is the least important.  Id. at 323.

Applying the Zubulake factors to the case at bar, the Court concluded that the seven factors did not favor cost-shifting in this instance.  The Court noted that Defendant failed to contend that the information requested was not relevant or that it was unlikely to lead to the discovery admissible information.  Additionally, The Defendant failed to show that the documents requested were obtainable from other sources.

Thus, the Court ordered S.C. Johnson & Son, Inc., to perform its own OCR – and pay for it, too.  The painfully simple lesson learned here is: don’t make a motion to share costs without at least providing some minimal amount of evidence in support of your otherwise specious (and probably exaggerated) estimations of cost.

e-Discovery Cowboy is a third-year law student at Seton Hall University in Newark, New Jersey.  He will be moving to Dallas in just a few short weeks to study for the bar and then work at a firm.  Yeeehawww.