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eDiscovery Written by Law Students

eDiscovery Written by Law Students

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.

Law + Technology + Human Error

Law + Technology + Human Error

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.

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New to the eDiscovery world?

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

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Consumer Credit Reporting Leads to Flurry of Discovery-Based Motion Practice

After requesting and receiving a consumer credit disclosure from defendant Experian, plaintiff Edward Dixon noticed that Experian was not reporting his payment history concerning his mortgage account held by Green Tree Servicing, LLC.  While Dixon admits that his mortgage account was previously held by GMAC Mortgage until the account was discharged in bankruptcy, he argued that his payment history with Green Tree should nevertheless have been reported by Experian because he continued to make mortgage payments to Green Tree post-bankruptcy. After filing suit against Experian alleging violations of the Fair Credit Reporting Act, Dixon served seventy Requests for Production and 40 topics for Experian’s Rule 30(b)(6) corporate witness.  While Experian asserts it has already produced 966 pages of discovery, Dixon asked the court to compel Experian to provide supplemental responses, specifically, in their native format as originally requested. After discussing Rule 34 and Rule 26 in explaining the dynamics of ESI-related discovery, the court noted that Dixon explicitly requested that Experian produce electronically stored information in the electronic form in which it is normally kept.  Dixon's request further defined the applicable terms of “electronically stored information” and “native format” so there would no confusion as to the nature of his discovery request.  In response, Experian produced the information in unsearchable PDF format but did not address ESI or object to Dixon’s ESI specifications.  Thus, the court ruled, “Experian waived any objection to the ESI format requested by Dixon pursuant to Rule 34(b)(1)(C).” This waiver by failure to object was perhaps Experian’s greatest oversight.  Not only did the court subsequently grant Dixon’s motion to compel as to his requests for discovery in native format, but the court made clear that “[i]t is not Dixon’s burden to now explain why the native format…would be more useful to him than the .pdfs.”  Even though Experian was not ordered to export the documents into a readable format such as Microsoft Word or Excel, Experian was still ordered to produce the documents in their requested native format. In addition to compelling documents in their native format, Dixon also asked the court to compel internal and external communications and written policies pertaining to how mortgage accounts of bankrupt consumers are and should be reported.  Experian argued that it has already produced a complete, text-searchable version of the 2012 Credit Reporting Resource Guide and argues that no further information need be produced.  Agreeing with Dixon, the court found that internal and external communications, “including those pertaining to how mortgage accounts of bankrupt consumers are and should be reported” are relevant to the policies included in the Guide and help established whether Experian’s procedures were reasonable.  Further, the court ordered Experian to, at least, conduct a search as to whether any communications or emails with Green Tree regarding Dixon’s dispute exist because such communications are relevant to Dixon’s claims.  In the event Experian found no communications exist, the court advised Experian to “state so in its amended responses.” The court then examined several of Dixon’s specific discovery requests.  Dixon requested that Experian produce “any and all name scans, snap shots, or other periodic backups of Plaintiff’s file,” presumably in an attempt to demonstrate the content of his credit file at various points in time.  Dixon argued such request went to the reasonableness of Experian’s policy that post-bankruptcy payments not be reported.  Experian countered, stating that such request is unduly burdensome, overly broad, neither relevant to the litigation, nor reasonably calculated to lead to the discovery of admissible evidence and vague and ambiguous as to the meaning of its terms.  The court ultimately agreed with Experian and held that “even if the discovery were relevant . . . the burden on Experian in compiling such ‘periodic backups’ that do not already exist outweigh Dixon’s need for the information” especially since the court ordered Experian to provide Dixon with documentation in native format.  The motion to compel this periodic backup information was denied. In ruling on Dixon’s motion to compel documents Dixon believes Experian is withholding, the court found little support that Experian was actually withholding documents and ruled that “Dixon’s suspicion that additional documents may exist is an insufficient basis on which to compel discovery.”  The court additionally declined to award any expenses to Dixon related to this motion. The court then concluded by reviewing Experian’s motion for a protective order based on Experian’s assertion that Dixon’s Rule 30(b)(6) deposition notice exceeds the scope of discovery permitted by Rule 26(b).  Experian requested protection from six of the thirty-one topics identified by Dixon that Experian believes are not relevant to this case.  The court granted protection for five of these six topics: protection from depositions on Experian’s periodic backups; protection from depositions on the exportation of consumer credit files into a readable format; protection from depositions regarding e-mail records; protection from depositions regarding a confidential, one-page document that produced in another lawsuit, and; protection from depositions concerning the identities of Experian representatives most knowledgeable regarding searching and positing queries to an internal database.  Many of these protections were granted on the basis that the court had already compelled Experian to produce documents in their native format, thus eliminating the need for excessive depositions aimed at acquiring the same or similar information. The court, however, denied the motion for protective order as to communications between Experian and Consumer Data Industry Association, the organization responsible for producing the 2012 Guide relied on by Experian for guidelines on credit reporting.  The court held that should Experian produce responsive communications, then “Dixon is entitled to pursue this topic in Rule 30(b)(6) deposition.” Based on the foregoing, the court granted in part and denied in part Dixon’s motion to compel.  Similarly, the court granted in part and denied in part Experian’s motion for a protective order and ordered Experian to make a Rule 30(b)(6) witness available to Dixon for deposition on the single topic if circumstances so demand.  The court concluded by extending the discovery deadline to allow the parties to comply with the court order. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Does One Need to Produce ESI Generated By A Third Party?

This matter was before the Court on the Plaintiff, Equal Employment Opportunity Commission’s (“EEOC”) Motion to Compel Agreed-Upon Form of Defendant SVT’s Discovery Responses. EEOC requested electronically stored information (“ESI”) held by Kronos, a third party hiring program that SVT used to allow applicants to apply online for positions in its stores, after identifying perceived deficiencies with SVT’s previous production of data held by Kronos. Kronos allowed SVT specific access to custom reports relevant to SVT’s online application program, but did not allow SVT access to the raw data used to generate those specific, custom reports. EEOC argued that, without this additional information from Kronos, it could not determine whether SVT could satisfy its discovery obligation. SVT argued that it did not have direct access to the raw data requested by EEOC, and that Kronos only provided it with a limited range of query and reporting capacity. Moreover, SVT argued that “the data, as kept in the ordinary course of SVT’s business and viewed through SVT’s views and reports, looks very different from how it is stored in Kronos’ proprietary format.” Kronos explained that it would cost $23,500 to generate a report that complies with EEOC’s discovery request. Federal Rule of Civil Procedure 34(b)(1)(C) states that a party requesting production of ESI “may specify the form or forms in which electronically store information is to be produced. Federal Rule of Civil Procedure 34(b)(2)(E) states the procedure that apply to producing ESI: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. Federal Rule of Civil Procedure 26 states: A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. The court held that ”the data stored by Kronos that SVT can produce through the custom reports already available to it through its contract with Kronos is reasonably accessible, and must be produced in EEOC’s designated format.” The court also noted that any hiring decision made by SVT would have been based on the reports available to SVT from Kronos under their contract. Thus, the custom reports were kept by SVT in its usual course of business. However, the court held that the “data housed by Kronos in forms or reports that are not already available to SVT through the custom reports that Kronos set up for it is not reasonably accessible to SVT because of both undue burden and cost.” Furthermore, the court held that EEOC must bear all the cost of production that is not reasonably accessible to SVT through its reporting capabilities. Thus, the court concluded that if “EEOC want[ed] to obtain the data directly from Kronos as a customized program and report tailored specifically to the EEOC’s discovery request at the estimated cost of $23,500, the EEOC [would] have to pay the cost of the discovery.” In an effort to minimize motion practice, EEOC should have requested the specific, custom reports available to SVT by Kronos because any hiring decision would have been made after considering only those custom reports. It is not likely EEOC would have discovered any relevant information from ESI in a form that was not available to SVT. 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.

Like Copying, A Party Can Recoup the Cost of Scanning

This incident arises under the premise that courts have allowed prevailing parties to recover the costs of converting paper documents into electronic files when the parties agreed that responses to discovery requests would be produced in an electronic format. The defendants sent the plaintiffs a bill for just over $65,000 for the costs of scanning nearly 450,000 documents they produced during discovery.  While the judge did not exactly award that amount to defendants, he came extraordinarily close. The plaintiffs tried to fight the costs by arguing first that they were made in responding to discovery and thus unrecoverable, and second that they were produced for convenience and therefore unnecessary.  The court was unpersuaded by either argument. Surveying the case law in the Fifth Circuit and other jurisdictions, the judge determined that the cost of scanning paper documents into an electronic format was equivalent to making copies.  Notably, only scanning and file format conversion was considered equivalent, and not other activities including, for example: collecting and preserving ESI, processing and indexing ESI, and keyword searching ESI for responsive and privileged documents.  That was precisely the reason the judge required supplemental briefing from the defendants and did not outright award the costs they sought.  The defendants’ invoices may have included other unrecoverable costs, and in order to recover in the subsequent briefings they would need to show which specific costs were attributable to scanning or making copies.  In a subsequent order, the judge did find the plaintiffs were responsible for over $50,000 of the defendants’ document production costs. In short, this case stands for the very simple proposition that “costs” includes “scanning” just as it also historically includes “photocopying.” 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.

Can a Party Refuse to Produce Archival Documents When an Opposing Party Cannot Produce its Own Archival Documents Due to its Lack of an Archive? No!

It may make sense in the eyes of some parties that discovery obligations should be equal. These parties believe that they should not have to do any extra work above and beyond what their adversary is doing to prepare the documents and information that will be turned over in discovery. Relying on this belief, though, in refusing to comply with a discovery obligation, will most likely not be a successful strategy in the courtroom. This very belief is what Blue Coat Systems relied on in the above case. Finjan brought suit against Blue Coat for patent infringement. Finjan requested a number of different documents relating to the case. Specifically, Finjan was looking for emails produced by eight different custodians at Blue Coat. Blue Coat was also requesting emails from eight different custodians at Finjan, as well. On its face, Blue Coat had no issue with Finjan’s request and was willing to comply. However, Blue Coat did choose to pick a fight with Finjan over its having to search through custodial emails from its archival systems. Blue Coat argued it should not have to do this, and it should only have to produce emails from its active systems, because Finjan was not being required to do the same thing. The reason Finjan was not being ordered to produce emails from its own archival systems, though, while Blue Coat was, was because Finjan did not even have an archival system to begin with! Blue Coat argued that if Finjan did not have to go through its archives, then they should not have to do so, either. As much as Blue Coat wanted to complain about Finjan not having to search the archives like they had to do, though, the court did not wholeheartedly buy this as a legitimate reason for not complying with Finjan’s request. The court said that at no point had Blue Coat disputed the relevance of the information Finjan was seeking. Blue Coat was simply “balking” at the idea that its custodians should have to turn over email other than that from its active systems all because Finjan cannot physically produce its own former employees’ emails. The court did not completely dismiss Blue Coat’s argument, though. The court admits that Blue Coat may have had a legitimate beef about having to dig through its archives while Finjan was incapable of doing the same. Nevertheless, “one party’s discovery shortcomings are rarely enough to justify another’s.” Certainly where, as here, the requested documents are relevant to the case (they do mention Finjan, after all), the request is reasonable, and Blue Coat will not be able to use Finjan’s inabilities as a justification for its refusal to produce. The court ultimately compelled Blue Coat to produce all archival emails that mention Finjan from the eight designated custodians. So what is the lesson to be learned from all of this? Well, for starters, if a party does not want to have to take the time and effort to search through its archives, then do not have archives at all! But more importantly, do not use the opposing party’s inabilities and failures to justify your own. Do what has been reasonably requested, or else the judge will just compel you to do it any way and explain her reasoning in a very public, published opinion for all to read. 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.

Before A Lawsuit Is Filed, Can A Company Be Required To Preserve Evidence? In NY, The Duty Can Be Triggered Even Without A Cause of Action

This case arose against the backdrop of a criminal trial involving a rabbi who was convicted of multiple counts of sexually related crimes against a girl beginning when she was twelve years old. During the rabbi’s trial, the presiding judge made several announcements notifying the audience that photography was stringently forbidden. This prohibition was also displayed on numerous signs in the courthouse and courtroom. Even though these notices were on display, numerous audience members took photographs of the juvenile victim during her testimony. Company Lemon Juice, the plaintiff, and two others, Joseph Fried and Yona Weissman, were arrested for violating the judge’s prohibition on photography. However, Lemon Juice was not sitting with Fried and Weissman in the courtroom, where an officer of the court discovered Fried and Weissman took pictures of the juvenile on their cellular phone. The court officer later discovered a photograph on Twitter of the juvenile victim. The image on Twitter resembled the image he viewed on the cellular phone of Fried and Weissman earlier that day. The Twitter account used to upload the photograph to the internet was in the name of Lemon Juice. The Twitter account also showed a picture of Lemon Juice. Subsequently, Lemon Juice was arrested and charged with second-degree criminal contempt for acting in concert with Fried and Weissman. After fourteen court appearances to defend himself, the charges against Lemon Juice were dismissed after a prosecutorial investigation found that Lemon Juice had no connection to the Twitter account that was the subject of the charges. The background leads to the case that is the subject of this article. After the charges against Lemon Juice were dropped, he sought a court order to compel Twitter “to disclose basic subscriber information, records, internet protocol addresses or similar information sufficient to identify the individual or individuals who owned or operated the subject account and logged into or tweeted on the subject account.” Lemon Juice also sought a court order compelling Twitter to preserve documents containing information relevant to the upload of the picture of the juvenile victim. Lemon Juice is seeking this information in order to secure the identity of the person who uploaded the image so he can name that person in a tort action. An order for a pre-action disclosure to be ordered by a court, the requested information must be sought solely for the purpose of determining who should be named as the defendant. It is not allowable as a fishing expedition to gauge whether a cause of action truly exists. Despite this prohibition on fishing expeditions, a plaintiff need only provide a factual basis to show that a prima facie cause of action exists. These facts will be construed in a light most favorable to plaintiff as well. In this case, Lemon Juice provided a sufficient factual basis to prove a prima facie action for intentional infliction of emotional distress. Additionally, the court addressed a possible argument from the creator of the Twitter account. The argument would be that freedom of speech protects his or her behavior because anonymous speech via the internet is afforded First Amendment protection. In this case however, because Lemon Juice suffered tortious damage, the First Amendment does not protect the unnamed defendant’s speech. The court ordered Twitter to disclose the user information sought for the account pertinent to this motion.       As to the preservation of evidence, the court ruled that Twitter must preserve the documents requested by Lemon Juice. The court stated, “prior to the commencement of an action [in New York state court], disclosure to preserve information may be obtained by court order pursuant to CPLR 3102(c). When a potential plaintiff invokes CPLR 3102(c) for the purpose of preserving information, the existence of a claim need not be demonstrated with certainty.” In this case, Lemon Juice greatly exceeded this threshold to compel preservation because he demonstrated a prima facie cause of action. There are two lessons to be gleaned from this case. The first is that anonymous on internet posting will not necessarily preserve your anonymity. If you post something that potentially constitutes a tort on another individual, the First Amendment will not save you. The more relevant lesson is that the duty to preserve may be triggered even if a plaintiff cannot demonstrate the existence of a claim with certainty. Companies with possible pending litigation can be required to preserve documents and evidence even if a lawsuit has not yet been commenced. 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

Does Inadvertent Disclosure Destroy the Safe-Haven Afforded by Attorney-Client Privilege?

Last spring the District Court for the District of Colorado heard argument on Galena St. Fund, LP v. Wells Fargo Bank, N.A. Plaintiff Galena specifically appealed to the court to compel discovery with respect to 8,327 documents that defendant Wells Fargo claimed were privileged. Magistrate Judge Boyd N. Boland was asked to consider whether Wells Fargo was allowed to claim privilege from trust beneficiaries, or in the alternative, if Wells Fargo waived the attorney-client privilege in its entirety. Plaintiff’s motion consisted of the kitchen-sink brief: first, Wells Fargo could claim no privilege exists to prevent disclosure of records to a beneficiary of a trust; second, when Wells Fargo named a non-party at fault, they effectively waived privilege by making the documents at-issue in the case; third, Wells Fargo waived privilege by having an overbroad privilege log; and fourth, Wells Fargo waived simply by inadvertently disclosing during the course of discovery. In short, Judge Boland was not convinced. Only one exhibit in the universe of disclosure was deemed to be a waiver of privilege, based on the at-issue waiver rule. That document was an email chain discussing defendant’s non-party claim and deciding how to remit proceeds from federally insured RMBS loans.   The court recognized that Wells Fargo “cannot use the attorney-client privilege as a shield to hide communications that indicate that Wells Fargo directed [the non-party] on how to remit those proceeds.” Galena, 2014 WL 943115 at *12-13. Unfortunately for Galena, that was the only point for plaintiffs on the scoreboard. The court went on to explain that Wells Fargo’s contact with outside counsel did not waive privilege for Galena as a beneficiary of the trust, essentially because Wells Fargo’s reaching out to outside counsel was inspired by Galena’s threat of litigation. Furthermore, Judge Boland did not find defendants assertion of privilege to be overbroad, and recognized that inadvertent disclosure does not waive privilege in any meaningful sense. Rule 26 of the Federal Rules of Civil Procedure works in conjunction with Rule 502 of the Federal Rules of Evidence to provide a solution to this very situation. So long as the disclosure was truly inadvertent and the holder of the privilege took reasonable steps to remedy the problem, privilege is still maintained. In this situation, the “burden of showing that the privilege has not been waived remains with the party claiming the privilege.” Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 *10 (D. Colo. Dec. 14, 2009). In the other situations in which the court analyzed potential waiver here, the burden of establishing a waiver of the attorney-client privilege “rests with the party seeking to overcome the privilege.” People v. Madera, 112 P.3d 688, 690 (Colo. 2005). Galena couldn’t possibly meet that burden, for all 8,327 documents. Hopefully, Galena’s counsel can make some hay with the one record in which privilege was waived. 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.

Sorry, I Forgot I Was Supposed To Do YOUR Job For YOU

In this technological age, people have gotten very lazy. Jobs once done by hand evolved to being done with tools. Jobs once done with tools evolved to being done by machines. Jobs once done by machines evolved to being automatically done by machine. The same is true with electronic discovery. It is no longer sufficient for me to present you with the files you requested and the entire database from which they are derived. Now, I must present them to you in a manner in which you deem acceptable or I must present them to you again. Sorry, I forgot I was supposed to do your job for you too. In FDIC v. Appleton, defendants moved to compel the FDIC to respond to their requests for production of documents claiming that the FDIC did not produce documents in conformity with Federal Rule of Civil Procedure 34, stating that FDIC failed to produce documents organized and labeled to conform with defendants' discovery requests or as they are kept in the ordinary course of business. The FDIC, in response to this motion, claims that it gathered the documents in Relativity from a larger database of ESI based upon search terms mutually agreed to by the defendants and also made the larger database available to search. Here, the defendants have all of the information they requested, both the specific files and the database from which the files were pulled. However, the court held that this was not sufficient. The FDIC believed that it produced the necessary documentation as required by the discovery requests and is not required to organize them according to the defenses specific wishes due to the Relativity software and how it sorts documents. Ultimately, the court granted defendants' Motion to Compel as to the ESI in Relativity requiring the FDIC to search for all documents in its possession responsive to defendants requests, to create a file in Relativity for each of defendants' discovery requests and then to put each document of each request in the corresponding file. This California case creates horrible precedent and should be overruled. The ruling itself creates latent and infinite costs that shift upon the person receiving the discovery request. This ruling also forces any plaintiff, here the FDIC, to neatly wrap the defendant’s requests into a box with Christmas wrapping paper and present the information to the defense with a little bow on top. Long gone are the days and legal strategy of “burying someone in documents” (a strategy used to often pursue a settlement instead of a costly and lengthy trial). Now, a quick search of a hard drive through a folders search bar specified to the defendants’ requests instead of the software’s default settings can determine exactly where the leverage to be used against you in litigation can be found, if there is any at all. Furthermore, the FDIC did completely comply with the discovery requests but not sufficiently enough for the defendants. The defendants filed a motion to compel because they were not happy in which the documentation that they requested was presented by Relativity so they went to a court of law to force the FDIC to present the information in another form. The cost associated with having to comply with a discovery request can be massive but the cost associated with having to do a discovery request over because the first discovery request was unorganized is absurd. Sorry, I forgot I am supposed to do your job for you as well as comply with the discovery request. FDIC gave you the information and it gave you the database upon which the data was derived, FDIC fulfilled its duty per discovery request. 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.

Why Did the United States District Court Find Apple’s Proposed Protective Order Unduly Restrictive, Unreasonable, and Arbitrary?

Even Apple’s extremely valuable source code is not entitled to an arbitrary, unreasonable, and unduly restrictive protective order. Instead of adopting Apple’s proposed protective order, the United States District Court approved Farstone’s provision in its entirety. Farstone’s “reasonably necessary” standard was determined to be sufficient enough to protect Apple’s source code. In Farstone Tech., Inc. v. Apple, Inc., despite agreeing to a majority of the proposed protective order’s terms, Farstone and Apple disagreed on the terms relating to the production of Apple’s source code. Specifically, Apple and Farstone could not agree on the limitations that should apply to Farstone’s ability to print Apple’s source code. Apple proposed that the printing must be “necessary” to prepare court filings and pleadings, while Farstone proposed that it should be allowed to print source code that is “reasonably necessary” for those purposes. Additionally, Apple wanted to establish two other limitations in the protective order, including a thirty page threshold and a two hundred and fifty page total cap. The thirty page threshold limitation would presume any printing of thirty sequential pages of source code to be excessive. The court found that Apple’s proposed “necessary” term was unduly restrictive because Farstone will not likely be able to know what specific source code is necessary to prepare its case. Furthermore, the court found that Farstone’s “reasonably necessary” standard has a solid foundation in the Northern District of California’s Model Protective Order. Additionally, the court found Apple’s numerical limitations unreasonable because they appeared to be arbitrary. Apple failed to indicate how the thirty page threshold and the two hundred and fifty page cap “bear any actual relationship to the total source code available.” The court held that the “reasonably necessary” standard provided some guide and limit on the printing of source code and thus, approved Farstone’s source code printing provision. It is imperative that Apple protects its trade secrets, such as its extremely valuable source coding. However, Apple must avoid proposing arbitrary, unreasonable, and unduly restrictive provisions in its protective orders to avoid courts from adopting its adversaries’ proposed terms. If Apple wishes to include numerical limitations in the future, it should justify why the numerical limits are necessary for the protective order to be sufficient.            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.

What Responsibility Does An ESI Producing Party Have in Reviewing the Documents for Responsiveness?

ESI is usually massive and its discovery burdensome. The proportionality consideration is thus often a deciding factor for courts to impose a particular document production protocol. The rules of ESI request and production do not offer a clear line as to the form of production and the obligation of a producing party in further culling for responsiveness by reviewing search hits produced by computers. That allows courts to order production procedures with considerable flexibility. ESI production is governed by Rule 34 of FRCP, which states that a request of ESI production “may specify the form or forms in which electronically stored information is to be produced” (emphasis added). However, rule 34(b)(2)(E) specifies that: (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. As to the responsiveness review, nowhere in Rule 34 is it expressly stipulated how the review should be carried out and how the electronic search should be conducted, particularly in the context of ESI. The court in FDIC v. Bowden, by referencing other cases, developed some practical guide in applying the ESI production rules as to production forms and responsiveness review responsibility. In FDIC v. Bowden, the court, in the spirit of balancing discovery burdens and applying proportionality restriction, provided a reasonable ESI production procedure to follow in the particular context of the case. That context, involving a suit by FDIC who took over a failed bank for mismanagement against some prior executives of the bank, may not be as uncommon as it appears, particularly in the aftermath of the 2008 financial crisis resulting from broad adoption of ruthless practices by the financial industry. The position of the court is thus illuminating and offers much guidance to parties facing similar situations. Specifically in FDIC v. Bowden, a bank insured by the FDIC failed and the FDIC formed a separate legal entity, the FDIC-R, to act as a receiver and took over the bank. The FDIC-R then brought a bank mismanagement case against sixteen former directors and officers. The parties disputed as to the ESI document production protocol. Like many other mismanagement cases, the defendant had been running the bank and thus had some reasonable understanding of majority the bank’s (or the plaintiff’s) ESI and knew reasonably well what needed to be searched. This point seems to have carried much weight for the court to determine a suitable document production protocol. First, it is interesting to note that the court treated acceptable ESI production protocol by FDIC for defendants’ request for documents related to FDIC’s claims separately from defendants’ request for documents responsive to defendant’s defenses. As to the production of ESI related to the claims, the court first noted that since this type of case generally involves the bank’s takeover by the FDIC and thus the ESI has usually been modified in the course of FDIC’s running of the bank. Thus, irrespective of whether the defendants specified any document production form, FDIC cannot really satisfy the “course of business” option of Rule 34(b)(2)(E)(i) by simply providing ESI as kept by FDIC because the “course of business” was held by the court to mean the business of the bank, not of the FDIC. Under Rule 34, the FDIC thus needed to produce categorized documents according to defendant’s request. But there is no obligation for the responding party to examine every scrap of paper in its potentially voluminous files in order to comply with its discovery obligations. Rather, the court approved a two-stage scheme. In the first stage, FDIC only needs to conduct a diligent search, which involves developing a reasonably comprehensive electronic search strategy, categorize the resulting files according to the request, and produce the documents. However, the obligation (if there is one) for FDIC to review the responsiveness of the documents resulting from these initial searches may be obviated through a cooperative search query formulation on an equal access document database in a second stage document production. Specifically for the second stage, parties would agree to a set of search terms to apply to the Bank’s database maintained by FDIC-R. FDIC-R would then export the results into some review tool, called “Relativity” in this case. FDIC-R would provide full accessibility of “Relativity” to defendants. That way, the defendants can be afforded the opportunity to review the documents identified through the second round searches and select for production only the documents that the defendants desire. As for the defendant’s interest in corralling documents in support of their defense, the court held that FDIC-R must confer with defendants and run whatever reasonable searches they wish to run on the electronic records and make those hits available for review and refinement. This seems to be a natural way of dealing with request for document helping with defense since the defensive strategy is mostly with the defendants themselves. From this case, it appears that as long as a responding party conducts a reasonable and diligent electronic search according to the document request and produces hits, it does not immediately have the obligation to further review these hits for responsiveness. However, the court may ask the responding party to make their ESI database available for a collaborative search between the parties. The responding party can always produce these hits in a format kept in ordinary course of business irrespective of whether the requesting party has specified any form of production. Of course, the responding party can also produce the document by categorizing the document according to the request if it chooses to do so or if the ESI has been altered and becomes too burdensome to reverse to the form kept in ordinary course of business. 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.

Clawing Back Digital Data is Risky Business

Why is clawing back digital data any more dangerous than clawing back physical documents?  Imagine making physical copies of one thousand documents.  That would take a long time, right?  Now, imagine making digital copies of the same one thousand documents. This takes a fraction of the time.  Giving up too much information in a digital form is incredibly dangerous because duplicating the data is as simple as “copy” and “paste.” In the case of Crissen v. Gupta, the party producing documents gave the receiving party a CD with all the documents requested; however, they mistakenly included over 600 pages of documents that were not supposed to be produced.  Thankfully, for the producing party, a protective order was in place which mandated that documents could be “clawed back” if they had been mistakenly produced. A claw back provision essentially will undo a document production.  In theory, this is a great way to increase the flow of information between opposing parties, decrease discovery costs, and limit the amount of time spent combing through documents before they are produced. See 2006 Advisory Committee Note to Fed.R.Civ.P. 26(f).  However, this only works if opposing counsel plays by the rules of the “claw back” game. Here, instead of just returning the CD as requested by the producing party, the receiving party copied and pasted all the documents from the CD onto the law firm’s server.  The CD was eventually returned to the producing party, but the damage had already been done.  The receiving party had an unblemished, unrestricted view of all the documents saved right on their servers. The producing party promptly asked the court to interject and enforce the claw back protection order; however, the receiving party had already reviewed the recalled documents via the copies on their servers.  The court ordered that the recalled documents be deleted, forbade the use of the documents unless they were properly produced, and required the receiving party to submit confirmation of the same.  However, as the saying goes, the cat was already out of the bag. Judge Magnus-Stinson admitted in his opinion that he could not bar the receiving party from using the recalled documents because the documents still may be properly requested and produced.  In other words, the receiving party now had the upper hand because they knew what documents to specifically request based upon their review of the recalled documents. The moral of the story in this case is do not rely solely upon claw back protective orders when going through the discovery process, especially when producing digital information.  Even if the protective order is enforced and a party is able to claw back specific data, there is some damage that just cannot be undone.  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.

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