About This Blog
Summaries, news and resources relating to eDiscovery in Delaware and beyond.
Showing 19 posts from 2010.
A colleague recently spoke to Vice Chancellor Laster about this opinion, and the Vice Chancellor reportedly said, "No self-collection in my Court." I'm not sure that statement addresses my distinction between collection and review, but it does reinforce the Vice Chancellor's opposition to unsupervised custodian document collection.
Also, below is the presentation I made for use in briefing this case for the Herrmann Technology Inn of Court:
Recently, Vice Chancellor Laster gave some of us a jolt with a bench ruling on a discovery dispute in Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010). The ruling addresses the issue of client self-collection and a lawyer's oversight duties.
The Association of Corporate Counsel's (AAC) website carried a summary of the ruling authored by Morgan Lewis & Bockius LLP that stated:
Vice Chancellor Laster ruled from the bench that confirmatory discovery—like formal discovery—requires the defendant’s attorney to be physically present during the collection of electronically stored information from his/her client; self collection by the client is not permitted.
[P]ointed out that lawyers have an affirmative duty to be actively engaged in the collection process to the point that a lawyer should meet in person with the client to physically review his or her electronic information repositories wherever they may be located (including, if necessary, personal computers if that is where relevant information is stored).
I think Kevin's summary is much closer to the mark, and I'll explain why in a minute. First, the language causing concern is on lines 12-19 on page 10 of the attached transcript and reads as follows:
[Y]ou do not rely on a defendant to search their own e-mail system... There needs to be a lawyer who goes and makes sure the collection is done properly... we don't rely on people who are defendants to decide what documents are responsive, at least not in this Court.
The AAC article suggests there are two things implicated by this, and other supportive, language in the ruling: (1) client self-collection is not allowed, and (2) an attorney must be present during data collection. I think that interpretation assumes the worst and goes too far.
On the issue of self-collection, when the Court says not to "rely on a defendant to search their own e-mail system" and "we don't rely on people who are defendants to decide what documents are responsive," I believe the Court refers specifically to the practice of a client acting as document reviewer and sole arbiter of responsiveness. That is well understood to be a bad practice, so there is nothing shocking about this pronouncement.
I do not think the Court, in this ruling, has said that client bulk self-collection is impermissible. I see nothing in this ruling that would prohibit a client from gathering a mass of potentially responsive documents, e.g. full email accounts for all custodians, with guidance from counsel and turning them over to counsel for review. Counsel must review all potentially responsive documents and make final responsiveness determinations.
On the issue of requiring counsel's physical presence during collection, I again think the AAC article's interpretation of the Court's ruling goes too far. The AAC article seems to rely on the word "goes" in the Court's statement that "[t]here needs to be a lawyer who goes and makes sure the collection is done properly" for the proposition that counsel must 'go' and be physically present for collection. I think we get the spirit of the Court's statement by removing the 'go' part: "[t]here needs to be a lawyer who... makes sure the collection is done properly." That is well understood to be a best, if not required, practice, so there is nothing shocking about this pronouncement either.
To be fair, there are other references in the ruling to lawyers 'getting on a plane' to get data, but these suggestions seem to be case specific. In this case, Plaintiff was supposed to be conducting confirmatory discovery on three board directors but only collected from two. The third was a Mr. Smith. So the Vice Chancellor suggests that someone get on a plane to go get Mr. Smith's documents ("And you certainly need to put somebody on a plane to go out and see Mr. Smith." page 10, line 20; "So the question for me would be, one, how fast can you do this right? And that means not only the e-mails from Mr. Smith. As I say, somebody should have been on a plane a long time ago to go through his e-mails. And if he chose to use his personal computer, well, that was his bad choice. All right? And if he has it mixed in other stuff that he gets, 150 e-mails a day, or whatever, that was his bad choice. That makes it all the more essential that a lawyer get on a plane, and go and sit down with Mr. Smith, and go through his e-mail and make sure that what is produced is -- what is responsive is appropriately produced." page 12, lines 1-13). This seems to be a specific issue with Mr. Smith in this particular case requiring the physical presence of counsel to ensure collection of, perhaps, an unwilling participant.
I think my reading of this transcript aligns with Kevin Brady's in that lawyers need to be engaged in the discovery process and may need to be physically present during data collection. If, however, my interpretation is wrong and a lawyer is required to be present during collection that may only be conducted by a vendor, the cost of discovery in Delaware may be on the rise.
The Morris James Intellectual Property Litigation Group provides out-of-state firms and their clients help in navigating the Delaware court system. The Group combines its on-the-ground, technical and trial experience to address the complex intellectual property protection issues moving global markets today. They represent clients in complex disputes involving patents, trade secrets, trademarks, copyrights, unfair competition, and antitrust issues and have successfully litigated cases in all areas of technology in the Delaware District Court, the Delaware Court of Chancery and Superior Court, and federal courts throughout the country, including the Court of Appeals for the Federal Circuit.
Chalk this up as a victory for the somewhat maligned use of search terms in eDiscovery. I was clued into this recent article via Lifehacker, discussing the eDiscovery findings of the Lehman collapse. The article, 'Stupid' Lehman E-Mails Didn't Stay 'Just Between Us,' shows how candid people still are in email and how the use of some thoughtful keywords and a little testing can still be very effective as a result:
"Just between us," it may be "stupid" to use certain words in e-mail to "discuss" the "big trouble" you might face if you’re ever investigated for financial wrongdoing or a subsequent cover-up.
Those are some of the terms that examiner Anton R. Valukas searched for in 34 million pages of Lehman Brothers Holdings Inc. e-mails and reports, to find out who knew what about the risks that drove the fourth-largest securities firm into bankruptcy, according to his 2,200-page study on the collapse.
Read the full article.
Morris James LLP Receives "Award of Excellence" From The Marvin S. Gilman Superstars in Business Awards Sponsored by the DSCC
We are very pleased to receive this honor from the Delaware State Chamber of Commerce," said David H. Williams, Managing Partner of Morris James LLP, "Our firm is deeply rooted in Delaware and we are committed to providing our community with top-tier legal services.”
The Marvin S. Gilman Superstars in Business Award, named for one of Delaware’s leading small business entrepreneurs, honors businesses and non-profit corporations for their outstanding achievements and model approaches to business and management. The awards are presented to companies that have been in business for at least three years, are small businesses based on number of employees, and are members of the Delaware State Chamber of Commerce. Awards of Excellence are also granted to deserving companies. More ›
Morris James is pleased to congratulate the lawyers listed below who were the most recommended by their professional peers, as determined by a Delaware Today survey of Delaware attorneys.
Gretchen S. Knight
Mary M. Culley
Keith E. Donovan
Jill S. Di Sciullo
Best Practices in Managing Discovery: Strategies & Tactics to Control Spending, Reduce Volume and Streamline Processes
I am honored to be a co-panelist with Richard Baer of Qwest Communications, in a LexisNexis® webinar tomorrow, Thursday, September 23, from 2-3 pm EST. Rich is Chief Administrative Officer and General Counsel for Qwest, and we will be discussing best practices for managing discovery in-house.
Here is a short summary from the webinar's website:
If your law department is under pressure to control rising costs associated with discovery, you’re not alone. In an average case, discovery expenses now represent 50% of total litigation costs—and in some cases up to 90%.
In this free Webinar, we’ve paired in-house counsel Richard Baer of Qwest Communications and outside counsel Chris Spizzirri of Morris James LLP—two professionals who are expert at minimizing the burden and costs associated with discovery. Register today to discover best practices for:
- Creating and implementing policies and procedures to streamline every phase of discovery, from preservation efforts to document production
- Utilizing technology to organize and deal with large volumes of data
- Assembling and managing response and discovery teams including internal staff, outside counsel, contract attorneys and non-attorneys
- And more strategies and tactics
Please Register now and join us for an informative session.
Morris James LLP is pleased to announce that five of its partners have been recognized among the top Delaware litigation attorneys in Benchmark Litigation 2011 - The Guide to America's Leading Litigation Firms and Attorneys.
Morris James’ Litigation Stars
Benchmark Litigation focuses exclusively on litigation lawyers and firms in the United States. Recommendations are based on extensive face-to-face and telephone interviews with the nation’s leading private practice lawyers and in-house counsel.
18 Morris James Attorneys Selected by their Peers for Inclusion in The Best Lawyers in America® 2011
18 Morris James attorneys in 13 practice areas were recently selected by their peers for inclusion in The Best Lawyers in America® 2011. New to the list are Mark D. Olson and Bruce W. Tigani from the firm’s Tax, Estates and Business practice. The firm’s Real Estate Practice Group Chair, Richard Beck, has been named in this highly regarded publication since its inception in 1983.
The Best Lawyers in America® 2011 has become universally regarded as the definitive guide to legal excellence. Their rigorous research is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. The Morris James attorneys listed in the 2011 edition and the areas of law in which they are recognized include:
• P. Clarkson Collins, Jr. (2005)
• Lewis H. Lazarus (2006)
• Edward M. McNally (2005)
• P. Clarkson Collins, Jr. (2005)
• Lewis H. Lazarus (2006)
• Edward M. McNally (2005)
• Mary M. Culley (2008)
• David H. Williams (2007)
• Gretchen S. Knight (2007)
INFORMATION TECHNOLOGY LAW
• Richard K. Herrmann (2003)
• Mary B. Matterer (2009)
LABOR AND EMPLOYMENT LAW
• David H. Williams (2007)
PERSONAL INJURY LITIGATION
• Keith E. Donovan (2009)
• Dennis D. Ferri (2007)
• Richard Galperin (2005)
• Francis J. Jones, Jr. (2008)
REAL ESTATE LAW
• Richard P. Beck (1983)
• John Bloxom IV (2010)
• Daniel P. McCollom (2007)
• Mark D. Olson (2011) *
• Bruce W. Tigani (2011) *
• Richard K. Herrmann (2003)
TRUSTS AND ESTATES
• Mary M. Culley (2008)
* Indicates First Year on List
I rise now to defend the Court of Chancery's decision in TR Investors LLC v. Genger, C.A. 3994-VCS (December 9, 2009) against the allegations made by Leonard Deutchman, General Counsel at LDiscovery LLC, in a two-part post hosted by Law.com. I promised at the end of April that a defense would be forth coming but wanted to give everyone time to read the two posts to which I respond.
Mr. Deutchman asserts that the Court got the decision wrong because it (1) doesn't understand the technology involved (Part 1) and (2) doesn't understand the law of eDiscovery (Part 2). I have decided to respond in two parts to keep each of my posts digestible.
In Part 1, Mr. Deutchman aims to discredit the Court's technical competence, and his first criticism makes unsupported assertions about the Court's findings.
The court ruled that by wiping the unallocated space of the two drives, the defendant violated the standstill agreement and was thus in contempt of court. To reach its holding, the court had to make factual leaps and draw legal conclusions that are in my view questionable.
The court's first factual leap was that because temporary files could have resided intact in unallocated space, they were, in fact, intact prior to the wiping. More specifically, the longer leap is that because temporary files could have resided intact in unallocated space, temporary files important to plaintiffs were destroyed by the wiping.
In my reading, the Court did not assume or conclude that any particular files resided in unallocated space. Read as a whole, the opinion finds that files existed in unallocated space, some of which may have been relevant, but no one will ever know because Genger destroyed them. The Court fines Genger for willful destruction of data in direct and clear violation of a Court order.
Mr. Deutchman's second criticism was that "that the files [the Court] believed continued to reside in unallocated space if the defendant had not wiped them would have been important to the matter." Here Mr. Deutchman's merely reiterates Genger's "No harm, no foul" defense—or, as Ralph Losey refers to it, the "pig-in-a-poke" defense—to which the Court replied:
For a party to intentionally violate an order not to destroy or tamper with information and then to claim that he did little harm because no one can prove how much information he eradicated takes immense chutzpah. For a court to accept such a defense would render the court unable to govern situations like this in the future, as parties would know that they could argue extenuation using the very uncertainty their own misconduct had created.
Finally, Mr. Deutchman's concludes his first post by suggesting the Court is technically incompetent by claiming the Court thinks of unallocated space as a back up system.
It is important to note that nowhere in typical computer usage or professional information technology practice is the unallocated space on a hard drive regarded as "back up" in the way that the court does here.
No IT professional or typical user would consider unallocated space to be a "backup" space, akin to an external drive or backup tape used to affirmatively back up files, simply because forensic searching could possibly locate therein lost files in their deleted or temporary states.
While the Court of Chancery is likely not full of techno geeks, they seem to more than adequately understand the technology involved. In any case, the Court does not liken unallocated space to a backup system. On this point, the Court said "the information on the unallocated space of the TRI system therefore acted somewhat as a back-stop reservoir of documents that had been deleted from the active files of TRI users," and that the unallocated space was "a data source that would have acted as a back-stop in case relevant evidence had been deleted in the months when the motivation to delete would have been at a zenith." (Emphasis added.) Frankly, Mr. Deutchman's attempt to impugn the Court with this allegation is bizarre considering the plain and clear language quoted above.
I will address Mr. Deutchman's second assault on the Genger decision shortly.
Morris James LLP is pleased to announce that ten of its partners have been ranked among the leading Delaware lawyers in the 2010 edition of Chambers USA: America’s Leading Lawyers for Business - an increase of two rankings from last year. In addition, four practice areas including Bankruptcy/Restructuring, Chancery, Intellectual Property and Employment Law were identified among the leading practices in Delaware. The Morris James partners selected for inclusion in the 2010 edition are:
- Brett Fallon
- Carl N. Kunz
- Stephen M. Miller
- Edward M. McNally
- Lewis H. Lazarus
- P. Clarkson Collins, Jr.
- Mary M. Matterer
- Richard K. Herrmann
Labor and Employment
- David H. Williams
Real Estate: Zoning/Land Use
- A. Kimberly Hoffman
Chambers & Partners is a highly respected and influential London-based research and publishing company that provides rankings of leading business lawyers and law firms throughout the world. Rankings are based on technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by clients.
Super Lawyers® magazine has named 7 Morris James partners as top legal counsel in Delaware. The multiphase selection process is handled by Law & Politics who evaluates each candidate on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis and include only 5 percent of the licensed attorneys in a state.
Morris James’ 2010 nominations include:
David H. Williams - Employment & Labor, Government/Cities/Municipalities
P. Clarkson Collins, Jr. - Business Litigation, Business/Corporate, Mergers & Acquisitions
Richard Galperin - Personal Injury Defense: Medical Malpractice
Lewis H. Lazarus - Business Litigation
Edward M. McNally - Business Litigation, Business/Corporate
Richard Herrmann – Intellectual Property Litigation
As explained by Ed McNally (one of the most renowned corporate litigators in the known universe), the Delaware Superior Court has created a commercial litigation division. This is exciting for many reasons, not the least of which is the new division has rules regarding eDiscovery. Morris James had the honor of providing input on the formation of those rules, and we are very pleased with the final results. A brief summary of the rules:
The new rules require parties to meet and confer to discuss:
- any issues relating to preservation of ESI;
- the form in which each type of ESI will be produced and any problems relating thereto;
- the scope of production, including the custodians, time period, file types and search protocol to be used to identify which ESI will be produced;
- the method for asserting or preserving claims of privilege or of protection of ESI as trial-preparation materials, including whether such claims may be asserted after production;
- the method for asserting or preserving confidentiality and proprietary status of ESI relating to a party or a person not a party to the proceeding;
- whether allocation among the parties of the expense of preservation and production is appropriate; and,
- any other issue relating to the discovery of ESI.
From those discussions, the parties are required to develop an eDiscovery plan for submission to the Court for entry as a order. The rules then provide a safe harbor for destruction of documents outside the scope of the order. The rules also provide a process for handling not reasonably accessible data, and they explicitly preserve privilege for inadvertently produced documents.
Ages ago by internet standards (late February), Law.com hosted a two-part post criticizing the Delaware Court of Chancery's decision in TR Investors v. Genger. Post author Leonard Deutchman, General Counsel at LDiscovery LLC, asserts that the Court got the decision wrong because it (1) doesn't understand the technology involved and (2) doesn't understand the law of eDiscovery.
I have been chomping at the bit to post a reply but have been consumed with finishing the 70-page (not including appendices) internal Morris James eDiscovery Protocol that overlays the EDRM with project management principles, and the accompanying 6-hour training course, but I digress...
Before I post my defense of the Genger decision, it would be useful for all my loyal readers (primarily my mother and wife) to first read the Law.com articles criticizing the Genger decision.
Overwriting deleted files leads to sanctions for 'international man of mystery'
Absent an obligation to preserve data, can a party be faulted for destroying it?
I will give you all a few days to get through these posts before I post my defense. Cheers!
UPDATE: Now I'm ticked! The video below, and all other Hitler "Downfall" parodies, have been pulled from YouTube. The removal comes per a takedown demand issued by the film's owner Constantin Films, claiming the videos infringed on the copyright. Boo! Hiss!
I am not an IP attorney, so this is not legal advice, but it seems to me that these videos are fair use of copyrighted material. What's more, Constantin Films clearly does not understand social media—I added Downfall to my Netflix queue because of these parodies. I otherwise never would have heard of the film. Constantin Films: THESE VIDEOS ARE HELPING YOU! DUH.
Then again, this takedown dustup is creating even more publicity...hmmm...
ORIGINAL POST: Yesterday, on the e-Disclosure Information Project blog, Chris Dale's post Hitler and Cloud Computing Security gives us a super discovery-related entry in the crowded and growing "Hitler and..." series of spoofs. I can't get enough of these videos and was giddy <!-- That's right, I said giddy. I'm easily amused. --> to find a related gem on YouTube just days ago, in which Hitler laments the exclusion of records management from the discovery process. Brilliant.
This video has nothing to do with eDiscovery, but it does have to do with Delaware so it's in.
I'm not turning this into a vblog. I have a few longer posts I'm working on and posting videos is an easy (and amusing) way to keep up activity while I finish writing. More on that in a day or two...