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Welcome to the new eLessons Learned
eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.
Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.
Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There
Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There
The plaintiff and the defendants both sold Belly Bands, the plaintiff alleged that both Belly Bands were maternity band used to hold up pants. The plaintiff previously filed cases against the defendants for trademark infringement, patent infringement and unfair competition in 2006 and 2008, but those cases were later resolved by settlement agreements. In 2013, the plaintiff filed the recent action alleging that the defendants breached both settlement agreements by selling and advertising Belly Bands. During discovery, the defendants produced some electronically stored information (ESI). The parties contested the sufficiency of the defendants’ ESI production. On December 20, 2013, the court ordered the the defendant to produce all documents referring to customer comments or complaints regarding the defendants’ Belly Band and disclose its search methods within thirty days. On January 21, 2014, the defendants issued a declaration stating that they were in Europe when the court issued this order, and could not immediately comply. They also stated that they would need a computer expert to help them retrieve deleted customer e-mails. On January 3, 2014, the defendants retained a computer expert. On February 4, 2014, the defendant told the plaintiff that they found additional ESI, but did not produce the ESI at that time. The plaintiff filed a motion on February 10, 2014, for sanctions against the defendants for failure to comply with the court order within the thirty day timeframe, seeking: attorneys fees and costs associated with the defendants failure to comply; an order that the defendants disclose all hard drives and provide the plaintiff with access to all email accounts; and an order precluding the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” At the time the motion was filed, the defendants still had not produced any additional ESI. Within two weeks after the motion was filed, the defendants produced over 1,000 new electronic documents. The court began its analysis by noting that courts may sanction a party for discovery abuses pursuant to the Federal Rules of Civil Procedure and the court’s inherent powers. Rule 37(b)(2)(C) states a court must order a party who failed to comply with a discovery order to pay the opposing party’s reasonable expenses associated with failure to comply, including attorney’s fees, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Sanctions are permissible regardless of the reason for the party’s noncompliance. Moreover, willfulness, fault, or bad faith are not required to impose Rule 37 sanctions, unless the sanction is dismissal. “However, in order for the sanction to comport with due process, the sanction imposed under Rule 37 must be specifically related to the particular claim which was at issue in the order to provide discovery.” Rule 37 sanctions should only be imposed when the party’s failure to comply prejudiced the nonoffending party. Furthermore, the court may impose three types of sanctions pursuant to its inherent powers specifically when there has been spoliation of evidence, including: “1) the court may instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party; 2) a court can exclude witness testimony based on the spoliated evidence; and 3) the court can dismiss the claim of the party responsible for the spoliation.” “In determining what sanctions are appropriate in cases of spoliation, courts consider: 1) the degree of fault of the party who altered or destroyed the evidence; 2) the degree of prejudice suffered by the opposing party; and 3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” The chosen sanction should be “determined on a case-by-case- basis, and . . .commensurate to the spoliating party’s motive or degree of fault in destroying the evidence. First, the court held that the plaintiff was entitled to an award of monetary sanctions under Rule 37. the defendants failed to substantially justify why they couldn’t produce all responsive documents within the court ordered thirty day timeframe. The fact that the defendants were in Europe when the court issued the Order did constitute substantial justification to excuse their noncompliance. the defendant did not alert the court of their travel plans, request an extension, instruct their office manager to comply with the Order, or offer a reason as to why they did not immediately retain a computer expert to assist them in complying with the Order. Further, even once additional ESI was discovered, the defendants failed to produce said ESI for almost a month. Thus, the defendants’ actions prejudiced the plaintiff by forcing the plaintiffs to subpoena third parties for responsive documents, by preventing the completion of necessary depositions, and by having to file the instant motion. Moreover, the court held that the defendant must disclose its hard drives and provide the plaintiff with access to all its email accounts, subject to the defendants’ privileges or privacy interests. The court found that there was real danger that evidence on the the defendants’ hard drive had been destroyed. Further, the defendants made an array of false statements, such as claiming they produced all responsive documents when they in fact had not, and claiming that no documents had been deleted during the time of litigation when overwhelming evidence indicated otherwise. The court found that the plaintiff needed access to the defendants hard drive to prevent any more documents from being destroyed and ensure all responsive documents were produced. Additionally, based upon the same reasoning, the court granted the plaintiff access to all of the defendants’ email accounts, including Amazon, Facebook, Twitter and eBay accounts. However, the court held that the plaintiff failed to prove that the court should prohibit the defendants “from opposing the plaintiff’s claim that the defendants’ Belly Bands were used to hold up [pants,] from opposing the plaintiff’s damage calculations, and from introducing any opposing evidence wit respect to the damages calculation.” The court stated “preclusion remedies are a harsh remedy that should be imposed only in extreme circumstances.” Here, given that the plaintiff obtained documents from third parties and that the plaintiff may recover additional responsive ESI from the defendants’ harddrives and email accounts, the plaintiff cannot—at this time—demonstrate that the defendants’ conduct “impaired the plaintiff’s ability to go to trial or threatened to interfere with the rightful decision of the case.” However, the court denied the plaintiff’s request for preclusion sanctions without prejudice, thereby allowing the plaintiff to request preclusion sanctions should the plaintiff’s search of the defendants’ harddrives and email accounts reveal that the defendants knowingly destroyed evidence and that destruction threatened the plaintiff’s ability to secure a just outcome. Thus, when a court orders ESI production, parties would be wise to immediately comply with the order, or immediately inform the court of substantial reasons as to why compliance will be delayed. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this? Sign up for our post notification newsletter, here.
The court first directed the defendant to produce the file of the plaintiff’s insurance claim in 2007, and needless to say, even in 2014 the defendant still had not produced everything. Over one year later, the court granted the plaintiff’s first motion to compel. When a flood of documents appeared at a deposition in 2011, discovery was reopened and the defendant was sanctioned. Another motion to compel was granted in 2012, and this time it was for the deposition of a representative of the defendant who could testify about the efforts the defendant had taken to respond to discovery requests. Yet another flood of documents appeared, and the representative deposed was unable to describe any of the defendant’s discovery efforts. The plaintiff moved again for sanctions, which were granted in 2013. At that time, the court also granted the plaintiff the costs and legal fees due to the late production of documents. As relevant here, before the court in this motion was the assessment of legal fees and another production request. The defendant did not want to produce more documents because by this time the defendant said the emails were on backup tapes that were purportedly not reasonably accessible because of undue burden or cost. Can you guess what the court thought of that argument? We’ll get to that in a moment. Without delving into specifics, the court painstakingly analyzed the plaintiff’s legal bill for the various motions, filings, etc. and awarded $81,997.60 in attorney’s fees. Some of these costs were attributable to an IT specialist hired by the plaintiff that was to help the attorneys ask proper questions at the defendant’s representative’s deposition so they could ensure protocols were followed during discovery and that sufficient documentation was recovered (and if discovery was delayed because of an honest mistake, the explanation for that could be ascertained). Even though the individual deposed actually had no knowledge of the defendant’s discovery practices, the defendants couldn’t escape paying for the IT specialist’s and attorney preparation time. On top of the nearly $82,000 awarded in legal fees, the defendant said it would cost $200,000 to recover the backup tapes containing emails. While the actual cost is unclear, the defendant was ordered to turn over eight weeks of tapes, at its expense, of the thirteen individuals the plaintiff identified. The judge even left the door open for the the plaintiff to get additional discovery if further exploration is necessary. However, this isn’t the end. Sometimes, a single well-placed footnote can be unbelievably powerful. This case illustrates just that, as the judge cleverly observed the defendant’s conduct as such: [c]onsistent with Hartford’s approach to discovery in this case, it has spent more time and resources challenging two entries totaling 1 hour than the amount requested by the plaintiff for those entries. The court trusts that Hartford’s attorneys will notify their client how much they incurred in attorneys fees on these two entries. So please, take discovery seriously. Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this? Sign up for our post notification newsletter, here.
It is never a good idea to raise the suspicions of the court. If a party is going to try to cover its tracks, it has to do so subtly and discretely. It certainly has to do a better job than Dr. O did in the above case. She revealed too much information about herself in the early stages of the case, and it came back to hurt her when it was time to produce discovery. MetLife has brought suit against Dr. O, after the doctor tried to make an insurance claim based on an alleged disability. First of all, Dr. O delayed her responses to initial discovery requests, which is just never a good idea! But not only that, it was subsequently discovered that she had email accounts containing relevant documents that she had not even previously disclosed! Needless to say, Dr. O has already lost all benefit of the doubt in this case. Dr. O was ordered to turn over the computers she used during the relevant period so that MetLife could perform a key word search. Instead of turning over all computers that she used, she turned over only the two computers that she owned. She claimed that she did not have access to all the computers she used anymore, because some were in Internet cafes she used while traveling. OK, fine, but even still, the computers she did turn over, the two computers she owned and presumably used most often, reflected very little activity! Her hard drives showed no evidence of her sending or receiving any emails during a five-year period. In addition, the hard drives reflected a minimal amount of Web browsing. Well that certainly piques the Court’s interest, especially in light of Dr. O’s earlier testimony in which she admitted to searching the Internet on a daily basis! So she searches the Web every single day, and yet there is no record of it on either of her personal computers? Suspicions have been officially raised! But it does not end there. Dr. O specifically testified at her deposition that she used her personal computer (one of the two she handed over) to type up a twenty two-page letter complaining about MetLife. Well, lo and behold, there is no record of this letter reflected in the personal documents on the computers she turned over. So now Dr. O has been caught in a direct lie! But wait, there’s more! Dr. O testified that she engaged in online banking…but the computers show no record of that, either. She also admitted to doing a lot of online shopping as a symptom of her depression and PTSD. And yet, there is nothing on her computers that is consistent with even a single purchase! Dr. O was not subtle and discrete in covering her tracks, and the court saw right through it. It explained that in light of earlier testimony that the doctor is an avid computer user, the lack of use on the computers she turned over demonstrates that she did not provide all of her principal computers. The court found that Dr. O willfully failed to comply with the court’s orders compelling production, and that this refusal was done in bad faith, prejudicing MetLife’s ability to present its case. Therefore, due to the extent and continued nature of non-compliance on the part of Dr. O, the court imposed an adverse inference instruction against the doctor. Again, this just goes to show that a party has to be more careful than Dr. O was in this case. It cannot claim to use computers all day, every day, and then respond to an order of production of these computers by turning over computers that reflect very little, if any, use. Dr. O was too obvious about what she was doing, and the court sanctioned her for it. Do not be like Dr. O! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this? Sign up for our post notification newsletter, here.
In this case, a non-profit corporation, National Jewish Health, is suing WebMD. A very important sub-issue arose in this case regarding electronically stored information requested by the plaintiff during discovery. The plaintiff issued very broad discovery and interrogatory requests regarding emails between employees of the defendant. Because of the complexity of the electronic discovery at issue, the presiding judge, Daniel Y. Wiley, appointed Ronald J. Hedges as a special master to give a recommendation regarding electronic discovery. WebMD uses Enterprise Vault to maintain its email. This system is very useful because it preserves all emails sent by employees to prevent the emails from being altered or destroyed. This system also allowed the IT department of WebMD to search and sort the emails received and sent by specific employees. Using an eDiscovery tool in Enterprise Vault, the IT department of WebMD produced emails generated by the search criteria provided by WebMD’s legal team. WebMD’s counsel produced the emails in one of the following formats: Individual native files with attachments extracted; .DAT file using standard concordance delimiters and containing metadata (standard fields) for the above mentioned native files; and Text files/OCR for each native file provided as individual text files with a text path provided in the .DAT file. Additionally, all the emails produced are fully text searchable, sortable, and paired with all metadata. National Jewish Health (NJH) submitted a motion for sanctions against WebMD because they received roughly 280,000 documents as a result of their document request. NJH viewed this as a data dump and claimed there were over 100,000 duplicate files produced. But as it turned out, WebMD had already filtered the documents for duplicates and NJH could not prove that it had even conducted searches of the documents. Additionally, all documents produced by WebMD were in their native format, or an otherwise usable format. As a result, NJH’s motion for sanctions was denied. Another notable issue in this case is regarding WebMD’s storage of employee emails because an individual must serve as the custodian of the emails. Judge Wiley stated that, “a company, through its IT department, can serve as the custodian of electric files stored on company servers.” Since WebMD saved its emails on the Enterprise Vault, NJH has no argument as to custodianship. The final issue raised in this case is regarding NJH interrogatories. WebMD objected to the interrogatories as being overbroad and burdensome because the interrogatories requested the sorting and labeling of documents. Instead of answering the interrogatories, WebMD instead turned over their business records, which is acceptable under the rules. The purpose of this option to produce documents in the usual course of business is to place the burden of research on the party seeking the information, instead of requiring the responding party to conduct a burdensome or expensive search of its own records. Judge Wiley stated that the interrogatory requests were in fact overly burdensome as WebMD is not required to sort and label documents. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in Seton Hall’s Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here
Last summer the District Court for the Northern District of Illinois decided a case that allows your old boss into your home. Well . . . not literally. Magistrate Judge Geraldine Soat Brown granted a motion to compel discovery for a plaintiff-employer over objection of defendant-employee. The plaintiff, Network Cargo Systems U.S.A., Inc. claimed that its former employee, Caroline Pappas, stole proprietary technology and destroyed other electronic data upon termination. Plaintiff denied the request, and consented to limited discovery. After expedited discovery took place, plaintiff returned to the court requesting that an independent technology investigator be granted access to all of Ms. Pappas’s electronic devices. The court ordered defendant’s counsel to “determine what electronic devices [Pappas] used between 4/1/13 [2 months before termination] and 2/14/14 [the hearing date].” Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 2014 WL 1856773 *2 (N.D. Ill. May 7, 2014). A week later, counsel indicated six devices: two personal computers, an iPad, an iPhone, a Blackberry (which was returned to Network), and a work laptop provided by defendant’s new employer. After the court’s order, the parties agreed to split the cost of imaging three personal devices: the personal computers and the iPad. Once the imaging was performed by the independent consultant, it was determined that three previously undisclosed flash drives had been connected to defendant’s personal computers during the relevant time frame. Id. The plaintiff demanded immediate access to those flash drives, as they may contain relevant evidence. The court agreed, even though the initial connection of the flash drives to the personal computers happened months after the employee was terminated from Network. The court insisted that plaintiff pay the full cost of imaging the additional devices, though, stating “[t]he likelihood that Pappas was using these flash drives to transfer Network’s confidential information would seem to become more remote with the passage of time.” Id. at *3. Defendant Pappas was forced to turn over flash drives and personal computers. While the target of the investigation is possible stolen proprietary material, through forensic imaging the independent consultant had access to each and every file on the device. Perhaps Pappas can take solace in the fact that her iPhone wasn’t subject to discovery, as the device likely contains more sensitive data than just high scores to Candy Crush. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015. Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this? Sign up for our post notification newsletter, here.
Federal Rules of Evidence Rule 401 defines something as relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Federal Rules of Civil Procedure Rule 26(b)(1)-Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. In addition, the plaintiff bears the burden of convincing the court that search terms for electronically stored information (ESI) is relevant. In a motion to compel, a court will weigh the relevancy of a plaintiff’s request and justification versus a defendant’s previously produced documents. This is the underlying law that is challenged in McNabb v. City of Overland Park. In McNabb v. City of Overland Park, a police officer alleges claims of sexual harassment and inappropriate workplace behavior and requests electronic mail from a group of individuals from within the police department. The plaintiff during the discovery period submitted a list of 35 search terms to the defendant for document request to support his claim. In response, the defendant, upon discussion with the plaintiff’s counsel, produced over 36,000 documents which were broken up into five categories of search. The defendant produced the following document categories: (1) all emails sent or received by plaintiff; (2) all emails sent or received by Officer Bever, (3) all emails mentioning plaintiff, (4) all emails mentioning Officer Bever, and (5) any emails containing both “McNabb” and “Bever.” In filing the motion to compel discovery, the plaintiff seeks to require the defendant to search the electronic files of 14 custodians for their 35 specific search words. However, the judge held that the plaintiff must present something more than speculation that a search of those 14 custodians’ emails with proposed words would be likely to reveal additional information not included in the initial discovery documents. Specifically, the court noted, the search as required by the plaintiffs was overly broad and it was unlikely that it “could conceivably encompass some information that may arguably be relevant to this litigation…” The court also took note to a significant number of the search terms that were not sexually charged although the plaintiff’s claim in the litigation was sexual harassment. In addition, the court found that the plaintiff included a numerous amount of duplicative and unnecessary search terms (“bullied” and “bully;” “defamation” and “defame;” “discriminate” and “discrimination;” “harass” and “harassment;” “kissed,” “kisses,” and “kissing;” “retaliate” and “retaliation;” and “sex” and “sexual”). In response, the defendant claimed that this measure was to ensure that the discovery search was thorough, but the court held that this measure was a prime example of the overbroad and excessive nature of the search. Therefore, in order for discovery searches to be deemed proper they must be arguably relevant for what they request. Anything that is overbroad will be deemed excessive if the defendant was willing to participate and contribute something toward your discovery goal. The holding in this case attempts to scale back the overbroad reach of FRCP 26(b) and begins to narrow the focus of ESI discovery requests. This is a matter that must be carefully watched because courts could be leaning towards no longer allowing fishing expeditions into Metadata for ESI. Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this? Sign up for our post notification newsletter, here.
Communication is key to any joint status report! Parties should not risk annoying the court by refusing to withdraw a motion when both sides are essentially in agreement. The court will find a protective order unnecessary when the defendants completely understand their preservation duties, acknowledge their duties, and have made substantial efforts to preserve discoverable evidence. Under such circumstances, the plaintiff or moving party will both lose the motion and risk wasting the court’s valued time. In McDaniel v. Loyola University Medical Center, McDaniel, the plaintiff, filed a motion seeking a document preservation order after learning that the Loyola University Medical Center, the defendant, planned to change its e-mail system provider. The defendant was transitioning from GroupWise to Microsoft Office, and the plaintiff feared that relevant e-mails would be erased or lost. In response, the court directed the parties to confer in an effort to resolve the preservation issue in a mutually agreeable way. In the submitted joint status report, the defendant demonstrated its belief that it had adequately assured the plaintiff of his spoliation concerns; however the plaintiff was still unwilling to withdraw the motion. As a starting proposition, a party has a duty to preserve evidence if it reasonably knew or could reasonably foresee was material to a potential legal action. Almost a year before the plaintiff filed his initial complaint in this case, the defendant issued litigation holds and constant reminders to 71 employees who may have information relevant to the litigation. Furthermore, the defendant took similar precautions with the additional 20 custodians identified by the plaintiff. Despite the defendant continually recognizing that it was under an obligation to preserve evidence, the plaintiff needlessly insisted that a preservation order was a necessary additional precaution. The court disagreed with the plaintiff and held that a preservation order was unnecessary. When deciding whether to enter the preservation order, the court considered (1) whether the plaintiff demonstrated that the defendant would destroy evidence, (2) whether the plaintiff would suffer irreparable harm without a preservation order, and (3) the burden that likely would result from granting the protective order. Here, the defendant was fully apprised of the scope and gravity of its preservation duties, and the plaintiff failed to demonstrate that the defendant would destroy evidence without a preservation order. The court found that a protective order would be superfluous and needlessly burdensome in this case. Moreover, the court noted in its decision that the parties appeared to be talking past each other and, in actuality, were in complete agreement regarding the defendant’s preservation duties. Lawyers must avoid submitting superfluous and needlessly burdensome motions to the court. Do not waste the court’s valuable time with unnecessary motions on issues that have already been mutually agreed on by both parties. The last thing any lawyer should want to do is to get on a judge’s bad side during the discovery stage of the litigation. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here.
The form of ESI production is specified in Rule 34, subject to court-approved agreement between the parties. If a particular format is important to a requesting party, it is critical to stipulate it unambiguously early on. If the party fails to make that stipulation, it will most likely be too late to ask for reproduction of documents that have already been produced although not in the format the requesting party expects, unless the producing party is in violation of the very flexible Rule 34. In Melian Labs v. Triology LLC., the parties filed a case management conference statement (referred as the “Joint Rule 26(f) Report”), and informed the district court that: With respect to the production of electronic data and information, the parties agree that the production of metadata beyond the following fields [is] not necessary in this lawsuit absent a showing of a compelling need: Date sent, Time Sent, Date Received, Time Received, To, From, CC, BCC, and Email Subject. The parties agree to produce documents electronic form in paper, PDF, or TIFF format, and spreadsheet and certain other electronic files in native format when it is more practicable to do so. During a 2-month period following the conference, Melian produced 1,218 pages of documents in PDF format. Triology complained about the format, claiming that these PDFs were stripped of all metadata in violation of the agreement of the parties and that the spreadsheets were not produced in their native format. Melian disagreed and the parties filed joint letters to the court to address the sufficiency of Melian’s ESI production. As with the e-mail production, Triology contended that Melian’s production of large PDF image documents was violative of FRCR 34(b)(2)(E) because they were not produced in their native format and were not reasonably usable. The court pointed out that Rule 34(b) only requires that the parties produce documents as they are kept in the usual course of business or in the form ordinarily maintained unless otherwise stipulated. The Joint Rule 26(f) Report was a stipulation. But the Report did not require that all ESI be produced electronically. Instead, it stated that ESI may be produced in paper, PDF or TIFF. Production in electronically searchable format certainly would ease Triology’s review, but that was not required by the Report. E-mails produced by Melian in paper or PDF contained text fields prescribed by the Report and the e-mail production was thus not deficient. To the extent that some e-mails had these fields cut off or it was not apparent from the face of the e-mail, the court instructed Triology to serve a request to Melian for further providing the missing information. As for the spreadsheets, Triology contended that Melian had failed to comply with the Joint Rule 26(f) Report by refusing to produce all spreadsheets in their native format. The court again held against Triology, stating that the Report did not require the production of ESI in their native format. In this case, when some of the spreadsheet printouts were difficult to read, it produced them in native format (Excel) upon request by Triology. The court approved of this remedial procedure and held that Melian did not need to produce all spreadsheets electronically in native format according to the stipulation of the Report. The court was noticeably agitated by this kind of complaint asking for the court’s involvement. The court believed that these disputes could have been easily resolved by the parties without seeking court intervention. Here is a quote from the last sentence of the opinion: “the parties are ordered to meet and confer in good faith before seeking further court intervention.” The bottom line is that if a requesting party wants to have documents produced in their native format, it should make a clear and unambiguous stipulation as to the form of production in order to override the choices afforded to the producing party by Rule 34. Of course, the stipulation, usually reached at some case management conference, must be agreed upon by both parties and approved by the court after the burden and proportionality issues are considered by the court. And very importantly, stay on the good side of the court by trying to resolve these discovery issues without going to the Court for intervention. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on patent law. Want to read more articles like this? Sign up for our post notification newsletter, here.
There is nothing more daunting then receiving a request for a backup drive with 1 or more gigabytes of data on it. The good news is that the courts have recently allowed the use of a new tool that can save business owners time and money: predictive coding. In the case of Dynamo Holdings v. Commissioner of Internal Revenue, the court allowed the use of predictive coding in order to identify relevant and confidential information stored on a company backup drive. This was one step in the course of court technology efficiency, but a giant step in the world of electronic discovery! Whether or not the parties were allowed to use predictive coding became a central issue because the back up drive in question held approximately one gigabyte of electronic data. Just to give you a frame of reference, this equates to approximately 200,000 to 400,000 individual documents. The producing party estimated that is would cost them about $450,000 just to review all the data before giving it to the opposing party. The producing party and the client paying for the discovery was daunted with the idea or spending that much time and money just reviewing documents. Also, the alternative of giving up the data without reviewing it could be detrimental to their case. In the end, the cost effective, technological answer was predictive coding. This opinion was highly influenced by the article written by Magistrate Judge Andrew Peck’ who describes predictive coding. Predictive coding is a process that essentially can predict the relevance of documents and identify which documents are not responsive. Judge Peck’s article explains that the computer identifies properties of documents and uses those properties to code other documents. As more sample documents are coded, the computer actually predicts the future coding. In a way, predictive coding is a reviewer teaching the computer what types of documents are relevant and what is confidential. Judge Peck states in his article that it usually takes only a few thousand documents to train the computer, which, compared to one gigabyte of data, is a drop in the bucket. In other words, predictive coding is a tool that uses algorithms to search rather than manually reinventing the wheel every time a labor-intensive discovery request is made. The algorithms use keywords, dates, custodians, and documents types in order to filter through hundreds of thousands of documents in a drastically shortened period of time. Now, some may be thinking, “how do you know that coding is producing the correct results?” Senior reviewers take samples throughout the process in order to determine the accuracy of the results. Additionally, a log can be produced detailing the records that were withheld and the reasons for doing so. This process may not be as simple as implementing a “claw back” provision (aka. a party can recall a document that was not supposed to be produced); however, it presents an accurate and efficient way to move along a trial and discovery process while mitigating harm to the party producing the information. Judge Buch weighed the interest of both parties: receiving party wanted as many documents as could be produced, and producing party wanted to protect the client from producing irrelevant or confidential documents. The predictive coding process was considered: (1) restore some or all of the date from the tapes; (2) Qualify the restored date; (3) Index and load the qualified restored date into a review environment; (5) use predictive coding to review the remaining data using search criteria that the parties agree upon; and (6) produce the relevant non-privileged information and privilege log that sets forth claimed privileged documents. In the end, Judge Buch’s conclusion was very clear. Predictive coding is an acceptable electronic search tool that can be used during the discovery process. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015. Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting. Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation. After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here.  For information about predictive coding, see Magistrate Judge Andrew Peck’s published article: Search, Forward: Will Manual Document Review and Keyboard Searches be Replaced by Computer-Assisted Coding?, L. Tech. News (Oct. 2011).
Executive Mgmt. Services, Inc. v. Fifth Third Bank is not a riveting case to read. It involves a rather mundane breach of contract claim by the plaintiff alleging wrongdoing by the defendant. Namely, Executive Management Services brought suit against Fifth Third Bank alleging that the bank had made misleading statements regarding interest-rate swaps. While the subject matter of the claim would fail to interest anyone, the procedural elements and motion practice offer a far more interesting and educational prospect. In building their defense, Fifth Third Bank sent Executive Management Services multiple discovery requests, which included tax returns, financial statements, and documents referring or relating to their (EMS) loan applications. However, Executive Management Services refused to produce the requested discovery on three grounds. First, EMS argued that the requested as they have "not claimed to be unsophisticated regarding standard commercial banking," only that they "did not understand the risks of the swap transactions." Second, the EMS argued that the defendant’s discovery requests were "overly board and unduly burdensome." Third, EMS claimed privilege regarding the requested documents under both attorney-client privilege and the work product doctrine. The court rejected EMS’s first argument right out of the gate. EMS claimed that the documents sought were not relevant to the issue at bar and therefore did not need to be turned over to their adversary. EMS claimed these documents were irrelevant because they had "not claimed to be unsophisticated regarding standard commercial banking," but rather that "did not understand the risks of the swap transactions." However, the court was not persuaded by this argument because even though this was a new area of investment banking, it remained the same procedure and protocol as any form of investment banking. Therefore, EMS’s past actions in commercial banking provided them with a foundation by which to understand this new field of investment and thus the documents proving this foundation were relevant. The court also rejected EMS’s argument that the documents were privileged under attorney-client privilege and the work product doctrine. While there may have been concerns regarding the confidentiality of these documents the court stated that the protective order in place addressed and negated all of the concerns posed by this argument. EMS’s second argument seems like it could have had the most impact out of the three; however, hardly any effort at all was put forth in crafting it. The plaintiffs simply stated that the production of such documents was unduly burdensome and overbroad and left it at that. There was no further development of this argument and therefore the court rejected it on its face. If the plaintiffs had put forth any evidence regarding why the request was overbroad or unduly burdensome the court may have limited the requested discovery. The plaintiffs should have offered evidence regarding why this request was unduly burdensome and overbroad; their failure to do so resulted in the court rejecting this argument on its face. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Want to read more articles like this? Sign up for our post notification newsletter, here.