Changing Horses Midstream? Court Says “Yes” to plaintiff Switching From Manual Document Review to Predictive Coding

The court entered its usual case management order setting forth a timeline of how this case was going to proceed. One of the first phases of litigation is the discovery phase. This means that both sides get to ask each other for documents and information regarding the issue in the case. The rules are fairly straightforward in this phase and each side will likely be obligated to provide much of what the opposing side asks for. In the instant case, after doing some manual searching, the plaintiff, Bridgestone, requested to use predictive coding to help sort through over two million documents. Predictive coding, to put it simply, is akin to a smarter keyword search. Keywords are put in and the program searches for those words as well as for other relevant words that it has “learned” to associate with the keywords in order to determine if a document is relevant or not. The defendant, International Business Machines Corporation, objected to Bridgestone’s use of predictive coding. The objection being that it would be an unwarranted change in the case management order. However, the court ruled that predictive coding could be used because under the rules discovery should be efficient and as cost-effective as possible. Thus, predictive coding, which is a smart search, was allowed in this case in order to expedite the discovery phase and save money on manual or other document review techniques. Moral of the story: Predictive coding may be implemented as an efficient discovery technique even if a case management order is already in place. Jessie is a third year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick, in 2012 with a B.A. in Philosophy and Political Science.  Want to read more articles like this?  Sign up for our post notification newsletter, here.

When are Details of an Expert Analysis NOT Compelled?

Dover v. British Airways, PLC, involves a class action lawsuit where the plaintiffs alleged the airliner unlawfully imposed fuel surcharges on its frequent flyer program rewards flights.  The plaintiffs supported their claims with a regression analysis.  This statistical study, also known as the r-squared analysis, estimates the relationship between two variables and allegedly shows fuel surcharges were mostly unrelated to the changes of fuel prices.  British Airways served the plaintiffs with a request for all documents relating to the r-squared analysis.  However, that request was denied by Magistrate Judge Go, whose order was affirmed on appeal by District Judge Dearie. While the overarching issue is under what circumstances the details of an expert analysis will not be compelled during discovery, this case brings to light several additional sub-issues.  The defendants argued that the information, produced by a non-testifying expert, was not protectable work product and that any protection that may have attached was forfeited through inadvertent disclosure on two occasions. Tackling the latter issue, the plaintiffs’ first inadvertent disclosure occurred during the course of a 137-page document production.  More notably, the second inadvertent disclosure occurred during the course of the plaintiffs’ documents submission complying with the defendant’s request for metadata.  The plaintiffs inadvertently reproduced the unredacted version of a particular spreadsheet that contained experts’ names and calculations.  As this was the second of the two inadvertent disclosures, the court expressly acknowledged that the “plaintiffs should have been on notice with the first inadvertent disclosure that the spreadsheets contained protected information and should have carefully reviewed the spreadsheets before providing them to their vendor and producing them to defendant.”  But, under the stipulated protective order signed by both parties, a claw back provision recited that the inadvertent disclosure of any material that qualifies as protected information does not waive the privilege on privileged information.  The law with respect to such a protective order invokes the waiver of privilege only if production was completely reckless, and the court did not find completely reckless behavior in this instance.  Rather, the court simply found the plaintiffs were careless in twice disclosing a few rows and columns on two pages of a 34-page spreadsheet. Addressing the issue of the fact that the r-squared analysis was performed at the pre-filing stage by a non-testifying expert, both Magistrate Judge Go and District Judge Dearie paid particularly close attention to the underlying fairness at stake and addressed the issue of whether it was fair for plaintiffs to submit an expert analysis in their complaint—that survived a motion to dismiss—and then disclaim the analysis in the future.  Because the plaintiffs disclaimed future reliance on the analysis conducted by their consulting expert, Federal Rule of Civil Procedure 26(b)(4)(D) is invoked for its protection of the disclosure of information from non-testifying, consulting experts.  Under this rule, discovery is only permitted upon a showing that it is impracticable for the party to obtain facts or opinions on the same subject by other means.  Since extraordinary circumstances were not found, details relating to the analysis were not compelled. Although it may seem unfair, the r-squared analysis was not the reason the complaint survived the motion to dismiss; the court was required to proceed on the assumption that factual allegations are true even if their truth seems doubtful, and consideration of the attacks on the consulting expert’s analysis would not factor into assessing the complaint’s plausibility. 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.

How Can You Be Found Guilty of Computer Sabotage When You’re No Longer Working For the Company? Easy; Put A Timed Virus Into The System Before You Leave.

On July 31, 1996, plaintiff Omega Engineering Corp. ("Omega"), a New Jersey based company, lost its computer programs relating to design and production permanently from its system. Omega manufactured “highly specialized and sophisticated industrial process measurement devices and control equipment” for NASA and the United States Navy.  The deletion of these programs debilitated their ability for manufacturing as well as costed the company millions of dollars in contracts and sales. From 1985 to July 10, 1996, defendant Timothy Lloyd worked as the computer system administrator at Omega.  He trained with the Novell computer network and installed it to Omega’s computer system.  The program worked to ensure that all of Omega’s documents could be kept on a central file server. Lloyd was the only Omega employee to maintain the Novell client and have “top-level security access” to it; however, the defense asserted that others at the company had access.  According to a government expert, access "means that ... [an] account has full access to everything on the server."  Lloyd was also the only employee in charge of backing up the information to the server. In 1994 or 1995, Lloyd became difficult.  The company moved him laterally in hopes of improving his behavior. A government witness testified that even though it was a lateral move, it was in fact, considered a demotion by the company.  Lloyd’s new supervisor asked him about the back-up system and wanted him to loop a couple more people in but he never did.   Moreover, he instituted a company-wide policy that employees were no longer allowed to make personal backups of their files. On top of the above issues, there was also a “substandard performance review and raise.”  The combination of the two factors, according to the government, showed Lloyd that his employment with the company would soon be terminated.   This established Lloyd’s motive to sabotage the Omega computer system.  On July 10, 1006, Lloyd was terminated. On July 31, 1996, Omega’s file server would not start up.  On July 31, “Lloyd told a third party, that "everybody's job at Omega is in jeopardy.” days later it was realized that all of the information contained on it were permanently lost.  More than 1,200 of Omega’s programs were deleted and, as per Lloyd’s policy, none of the employees had their own personal backups.  There was no way for any of these programs to be recovered. A search warrant conducted on Lloyd’s house turned up some backup tapes and a file server master hard drive.  Experts hired by Omega found that the deletion of information was “intentional and only someone with supervisory-level access to the network could have accomplished such a feat.”  The commands necessary to pull off such a purge were characterized as a “time bomb” set to go off on July 31st when an employee logged into the system.   There was evidence found by these experts of Lloyd testing these specific commands three different times.  This string of commands was further found on the hard drive that was in Lloyd’s home. Lloyd was convicted of a federal count of computer sabotage.  It was remanded due to a jury member’s claimed use of outside knowledge during deliberations. Julie received her J.D. from Seton Hall University School of Law in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Default Judgment Granted, Monetary Sanctions Imposed Against Plaintiff Tech Company and Counsel for Misconduct

Plaintiff’s counsel tried to distance the company and themselves from their retained consultant in an unsuccessful attempt to escape sanctions for multiple instances of misconduct. Illinois District Court Judge Coleman saw through counsel’s feeble attempts to use the consultant as a scapegoat and granted the defendant’s motion for default judgment and monetary sanctions.

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Photogrammetry for the Win!… If you know what it does.

The Federal Rules of Evidence (“FRE”) are notorious for their complication. Hearsay Rules continue to astound attorneys across the country. Now, in a more modern era, we have the advanced electronics capable of aiding the evidentiary process in many ways. But with a jury of lay people, it is difficult to describe the use of such equipment during a trial without the use of an expert witness.

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Court Goes Nuclear on Deadline Desperados

This case arises out of the nuclear reactor accident that occurred at the Three-Mile Island Power Plant on March 28, 1979. This 3rd Circuit decision was rendered more than 20 years after the incident and after a complicated procedural history that included multiple filings by thousands of plaintiffs in both state and federal court. Congressional amendment of a statute finally allowed all of the cases to be consolidated in federal court. The main issue decided on appeal was the district court’s exclusion of expert testimony, based on the gatekeeping standards of Daubert, which restricted plaintiffs’ ability to show that they were exposed to radiation sufficient to cause injury. The other issue on appeal was the award of sanctions for violations of pre-trial discovery requirements and orders. As this is an eDiscovery blog, I will be addressing the discovery and sanctions issues rather than the voluminous and complex scientific matters that arose in this nearly 200 page decision.

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Banking on an Adverse Inference – NY Appellate Division Affirms Spoliation Sanctions against Bank in Employment Discrimination Suit

In 2002, bank employee Jacob Ahroner was not happy with his employer, Israel Discount Bank of New York.  Consequently, in July 2003, he brought suit, alleging hostile work environment and discrimination based on race, age, and national origin. In November 2002, seven months prior to filing the action, however, Ahroner’s attorney wrote to the Bank.  The letter informed the Bank that it was “placed on notice that [it] must undertake all efforts to preserve from spoliation all documents and other records relating to our client’s employment, as well as any unlawful conduct of [the Bank] or its employees.  As you may be aware, spoliation gives rise to an inference and instruction that the missing documents would have proved the charging party’s case.”  The Bank replied that it was aware of its obligations.

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I Deleted Your Damning Evidence and There’s Nothing You Can Do About It

Again with the scandalous sex tapes?  Seriously?  With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret.  You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution.   Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

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Spoil Evidence and Spoil Your Savings

What can be more detrimental than giving your adversary access to your electronic files? The answer: not giving your adversary access to your files. Jacob Ahroner, the plaintiff in Ahroner v. Israel Discount Bank of N.Y., requested and was awarded spoliation sanctions, an adverse inference instruction and reimbursement of fees paid to his expert at trial based upon the destruction of electronic evidence. To successfully request spoliation sanctions involving the destruction of electronic evidence the party requesting the sanctions be imposed must establish three elements.

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The Crimes Are Virtual But The Damages Are Real: The World Gathers In Brazil For The Congress On Electronic Crimes And Protection

Recently, our very own Fernando M. Pinguelo was able to sit down with Brazillian Cyber Law Attorney Opice Blum for a discussion on the Congress on Electronic Crimes and Protection.  Below is a partial transcript of their Question-and-Answer session: Q: Thank you, Renato, for sitting down with me to discuss the latest developments in tech crimes and what experts like you are doing to help businesses and individuals prevent these crimes and address them when they hit home.  Tell me a little bit about your background and the composition of your law practice. A: My name is Renato Opice Blum and I am a Brazilian Attorney and Economist who specializes in High Tech Law. I am CEO of Opice Blum Attorneys at Law, one of the most respected South American firms.  

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