About This Blog
Summaries, news and resources relating to eDiscovery in Delaware and beyond.
Showing 10 posts from 2012.
I attended the Carmel Valley eDiscovery Retreat (CVEDR) two weeks ago, spent last week digging out from under everything that had piled up in my office, so now have a moment to share some thoughts on the event.
First, a big congratulations to Chris LaCour for putting together a successful event. I thought the content was among the best I've seen, especially the panel on defending the use of analytics. ;-) The work product series of panels explored the tension between work product protection and cooperative translucence. As you can imagine, there was some debate on the issue and highlights the need for more practical guidance—if the experts can't agree, what hope does the average practitioner have of walking this tightrope?
eDiscovery Journal's Greg Buckles was an excellent moderator and has written his own summary titled "CVEDR Take II – Monkeys and Magistrates in Monterey." Greg offered us some key takeaways and paraphrased memorable panelist statements. I would like to offer the following unattributed panelist comments or concepts to Greg's list:
- 'Judge-consumable' information is information about e-discovery that is easily digested by non-e-discovery judges.
- 'Containing the intrusion' into work product, meaning efforts to limit the scope of inquiry when the e-discovery process is called into question.
- Many of us seem to agree there should be a presumption that a producing party has acted reasonably, requiring some good cause showing of a problem before delving into work product protected activities.
- If you want to try some form of technology-assisted review but are uneasy about its defensibility, try it out on an opposing production.
- Have a Consulting Expert who will have full access in a matter and a Testifying Expert who knows about the things they need to know to properly testify.
- Along the same line, bifurcating custodian interviews into Technical Interviews and Substantive Interviews protects the substantive information from disclosure.
- Who owns the work product protection when a firm chooses a vendor and works directly with them, but the client signs the contract?
- An Information Flow Map may be more useful than a Data Map, because it shouldn't become outdated as quickly.
There were many more excellent quotes and ideas floated at the conference. Be there next year and hear them all. In the meantime, you can listen to the 2012 Judicial Panel at ESIBytes.
Not only is this worm and its siblings, Duqu and Flame, fascinating, the information security (infosec) issues have implications for data authenticity. I'll explore data authenticity is a future post, for now here are a couple recent articles on Stuxnet's death.
A few links to recent articles of interest:
- Experts Propose Defensible E-Discovery Standards (Jason Baron's working on an official ANSI ISO Standard on eDiscovery; how does this jibe with the EDRM's work?)
- Hacker Conferences Target the Law (Lawyer tells IT people to think of "litigation, including subpoenas, search warrants, and discovery orders, as another form of attack." My emphasis.)
- Around the Blawgosphere: Crowdsourcing Performance Evaluations? Pros and Cons of ‘Client Contact’ (ABA Journal spotlights Delaware's legal social media maven and labor & employment lawyer Molly DiBianca.)
I recently came across this interesting post summarizing a survey of General Counsel views on eDiscovery: 2012 Study of Global 250 General Counsel on eDiscovery. A few of the survey's findings perplex me.
Top Concerns Over the Next 12 Months: Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 63%
Top Frustrations Over the Past 12 Months: Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 75%
Top Pet Peeves Over the Past 12 Months: Outside Counsel's refusal to take responsibility on eDiscovery = 50%
Have these GCs been unable to find outside counsel that has an eDiscovery practice group? I see "Electronic Discovery and Information Governance" practice groups popping up like weeds, so it seems like they would be easy to find. Firms are falling all over themselves to woo GC's with their eDiscovery prowess, so why are so many unhappy with their outside counsel's eDiscovery services?
Perhaps they have hired firms who claimed to be eDiscovery experts but turned out to be otherwise? That's possible and quite frustrating to those of us who dedicate ourselves to the practice of eDiscovery instead of just using it as a marketing angle. It seems there are those who think they can simply read the Zubulake opinions, pay the Sedona Conference© Working Group Series℠ membership fee, and declare themselves eDiscovery experts.
If your outside counsel isn't providing quality eDiscovery services, find new outside counsel.
A few links to recent articles of interest:
- Pittsburgh lawyer wins landmark case involving use of predictive coding in discovery process (while everyone stares at the Da Silva Moore train wreck, this undramatic case may turn out to be useful)
- Is LPM a Technique? Is It Process Improvement? (Steven Levy)
- Judge Orders Forensic Examination of Attorney's Hard Drive (to investigate document backdating suspicions)
- Apple iOS Presents Forensics Challenges in E-Discovery (the prevalence of iPhones and iPad makes them a large and growing source of original discoverable information)
- Court Suppresses E-discovery in Criminal Investigation for Government's Bad Faith Seizure of Hard Drives (no "taint review" had begun on hard drives seized 15 months prior to hearing)
- Unique insight into Flame malware (interactive timeline and infographic of the domain registrations used by Flame for command and control)
The EDDE Journal is the excellent quarterly publication of the E-Discovery and Digital Evidence Committee of the ABA Section of Science & Technology Law. The latest issue features the following:
As many of you are likely aware, the Delaware District Court revised its Default Standard for Discovery back in December. Several sources walked readers through the new provisions and speculated about the practical impacts of the new Default Standard. I opted to wait until working under the new Default Standard before offering commentary. Now that I have had the opportunity to use the new Standard in real cases, I'm ready to offer a practical critique.
The new Default Standard is a real leap forward from its predecessor and an excellent guide for litigants. Whereas the old Default Standard was basic, a bit scattershot, and meant to be a punishment to parties who failed to cooperate, the new Default Standard is a gift wrapped eDiscovery plan. (It's my understanding that DuPont's Global eDiscovery Director, Vince Catanzaro, was a driving force behind development of these new guidelines. Well done Vince!) To date, I have used the new Standard in several cases as the basis for agreements for conducting eDiscovery. Among it's best features are:
- A focus on early party Meet & Confers regarding eDiscovery, including early consideration of Proportionality;
- Schedule A of the new Standard lists data types and sources that are excluded from preservation absent a good cause showing;
- A list of metadata fields that parties must exchange, no other fields are required;
- During search term discussions, receiving parties may request no more than 10 additional search terms;
- Seeks enforcement of the FRCP 26(f) Meet & Confer requirement to discuss eDiscovery and the timing of the same;
- Protection of litigation holds and other preservation efforts from discovery; and
- On-site inspection of the producing party's information systems is barred absent a good cause showing.
However, the new Standard is not without it's flaws. Although none of it's flaws are major, there are a few items that I think are unclear in the new Standard. I will address them in the order in which they appear in the new Standard, citing the section, so you can play along at home.
The first oddity, while not an actual flaw per se, merits mentioning because of its irony: the document appears to be scanned paper. Odd.
To Preserve or Not To Preserve
The first possible flaw is that the language of section 1.c.(i) seems to contradict or at least conflict with Schedule A #5. I'll explain.
Schedule A of the new Standard lists data types and sources that are excluded from preservation absent a good cause showing. Schedule A #5 identifies "Back-up data that are substantially duplicative of data that are more accessible elsewhere." The inclusion of the word "substantially" here means to me that the Court recognizes and accepts that *some* relatively small amount of non-duplicative data may be lost. So good cause to preserve a backup source would require showing that a backup has a unacceptably large amount of non-duplicative data. Just showing one document, or even a few, would likely not be good cause to force preservation. This is pragmatic and enlightened, and I like it (and I'm sure the Court is relieved to know that I approve).
However Section 1.c.(i) concerns the scope of discoverable information and says:
Absent a showing of good cause by the requesting party, the parties shall not be required to modify, on a going-forward basis, the procedures used by them in the ordinary course of business to back up and archive data; provided, however, that the parties shall preserve the non-duplicative discoverable information currently in their possession, custody or control.
To me, the first phrase in this section says that parties don't need to change their regular backup routines, including the regular destruction of backups. In other words, just like Schedule A #5, there's no need to preserve backups. Good.
Not so fast. The second phrase in section 1.c.(i) says that parties may only continue executing their regular backup routines, including the regular destruction of backups, if there is no unique data in a backup. There's unique data in most backups, so reading the second phrase literally seems to negate the first part of section 1.c.(i).
That is, section 1.c.(i) really says that parties may continue executing their regular backup routines, including the regular destruction of backups, if, and only if, the backups they intend to destroy have no unique data. None. Zero. This could cause parties to keep all backups for fear that any of them contain even one unique item. Not only is that a bad rule, it directly contradicts Schedule A #5's exclusion of backups from preservation.
I have no doubt that causing parties to keep all backups was not the Court's intention, and this is merely a drafting error. Nevertheless, it's potentially problematic, and I hope it will be corrected. I offer the following language as a possible alternative:
Neither party shall be required to modify, on a going-forward basis, the procedures used by them in the ordinary course of business to back up and archive data, unless those procedures may be reasonably expected to destroy potentially relevant data that does not also exist on a more readily accessible source.
This isn't a flaw so much an issue with style. Section 1.d.(iii) says:
Activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery.
While this is certainly a clear and welcome statement that preservation activities are protected, there are times when disclosing some of those activities is helpful. If a party discloses their preservation efforts and the opposing party will agree (in writing) that those efforts are reasonable, the disclosed preservation effort then become highly defensible.
Section 1.d.(iii) doesn't preclude such disclosure and discussion, but it doesn't encourage it either. I would have preferred the section said something like:
Although activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery, parties are encouraged to share this information in reasonable detail when appropriate in the interest of cooperation.
I'm not married to that language, but you get the idea. Like I said, this isn't a flaw, just a style preference.
Section 5.b. does a lot of good things, but I believe it could use some clarification. Specifically, it says:
Absent a showing of good cause, a requesting party may request no more than 10 additional terms to be used in connection with the electronic search.
What counts as a search term? Quite often, we use search strings (e.g. "too much" w/3 noise) of varying complexity, because they yield more tailored results and smaller data sets than individual terms (e.g. "noise"). So, I may have several search strings like:
- Smith AND [misappropriat* OR stole OR steal* OR (customer w/3 list) OR (client w/3 list) OR fire OR terminat* OR discipline* OR suspend* OR resign* OR unemploy*] between 1/1/08-1/1/10
- (Kennedy OR Jones OR Adams) AND (fire OR terminat* OR discipline* OR suspend*) between 9/15/09-10/15/09
- Smith AND [perform! OR theft! OR (client w/7 contact)] between 10/1/08-11/1/10
What exactly can the receiving party request? It seems clear to me they can request that individual words be added to a string with each word counting against the 10. That is, using the above strings, the receiving party can request the addition of "account" to the final string so it reads:
Smith AND [account OR perform! OR theft! OR (client w/7 contact)] between 10/1/08-11/1/10.
The requesting party can do that 9 more times.
But what if the receiving party requests the addition of "account manager" instead? Is that one term or two? What if, in addition to the strings above, they requested we also run: "(Williams OR Martin OR Wilson) AND (captur* OR escap* OR dwindl*) between 6/15/09-8/15/09?" Is that 6 terms? I think so, but, to avoid party confusion and unnecessary court intervention, this could be clarified.
Section 5.d. says:
The only files that should be produced in native format are files not easily converted to image format, such as Excel and Access files.
I see two problems here. The first is a minor drafting error. For accuracy, "Excel" should be changed to "spreadsheets" (I would even add "and similar files like those with a .csv extension"). Certainly, Excel spreadsheets are the most common spreadsheets--and perhaps Excel has become synonymous with spreadsheets the way Qtips now means all cotton swabs--but there are many of us who use non-Excel spreadsheets. This is an easy fix.
The other problem is two-fold. First, like the Excel issue, "Access" should be changed to "databases." Again, there are many other types of databases besides Access. In fact, I would wager SQL (pronounced sequel) databases are the most common right now. This is also and easy fix, but there's a much bigger problem here.
The second problem is that production of entire databases is not a very good way to handle databases in eDiscovery. In fact, it's a bad way to handle them.
The Sedona Conference® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation (April 2011) explains that the best way to handle databases in eDiscovery is to generate relevant reports for production. This requires the producing party to determine the fields available in a given database, disclose the fields to the receiving party, and negotiate relevant reports.
There's more to it than that, but that's the basic idea: database production is based on reports not exchanging entire databases. This process is very similar to search term negotiation and development, except the discussion is about database fields. I would hope this portion of the new Standard can be revised quickly, because I think it could prove problematic.
Metadata, I Knew You Well
Section 5.e. lists the metadata fields parties must provide. Among the fields listed are Conversation Index, Control Number Begin, and Control Number End.
Conversation Index. As I understand it, this is a field created by eDiscovery software that identifies and groups email threads, which is useful during review. Not all software does this, so not everyone will have a Conversation Index field to produce. Even when a party does have this field, it exists for their own use during review and is not something typically produced, if ever. Moreover, even if a party were to produce this field of information, most, if not all, review software would be unable to utilize the information. This field should be removed from the list.
Control Numbers. These are typically numbers assigned to documents for internal use and are never disclosed. I think what was intended here was Bates Begin and Bates End. These are arguably the two most important fields parties must exchange, but they do not currently appear on the list.
Title. This is a commonly exchanged field indicating the title given to an office document. I would have included it on the list.
Missing in Action
As terrific as the exclusions in Schedule A are, they do not address custodians' personal data, SMS text messages, or social media. Maybe the Court doesn't want these categories of data excluded by default, but they seem to fit in nicely with the other categories on that list. Either way, some guidance on handling these types of data would have been appreciated, especially considering how frightened some people seem to be about social media.
If you like the new Default Standard as much as I do, you will want to use it as the basis for a form eDiscovery agreement for use in Delaware District Court and any other court. After all, why reinvent the wheel? But, as pointed out above, the new Standard is not perfect. The workaround for that is to pull the text of the new Standard into a form agreement and correcting the errors discussed above. After that, all you will need to do is make changes warranted by the specific circumstances of a case and you're done. Pre-cooked eDiscovery Plan.
As readers of this blog likely know, there's a mini-trend in eDiscovery to recover vendor costs in Federal courts as "taxable" under 28 U.S.C. §1920(4). That section allows courts to require losing parties to reimburse prevailing parties for "fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." There recently have been several cases around the country where prevailing parties have successfully recovered costs this way. (See footnote 2 here for a short list of cases.)
In Race Tires America Inc. v. Hoosier Racing Tire Corp, the Western District of Pennsylvania awarded over $367,000 of "taxable costs" to the prevailing defendants for eDiscovery services like hard drive imaging, data processing, keyword searching, and file format conversion. However, the 3rd U.S. Circuit Court of Appeals vacated the award, defining copies as only scanning and file-format conversion, drawing a sharp distinction between "exemplification" and "making copies" in §1920(4).
In Delaware District Court recently, in Cordance Corp. v. Amazon.com, Inc., C.A. No. 06-491-MPT (D. Del. Apr. 11, 2012), Amazon prevailed and requested $447,694.69 reimbursement for electronic discovery costs under D. DEL. LR54.1(b)(11). According to Magistrate Judge Thynge
D. DEL. LR54.1(b)(11) provides “Other costs: Claims for costs other than those specifically mentioned in the preceding paragraphs of subpart (b) of this rule ordinarily will not be allowed, unless the party claiming such costs substantiates the claim by reference to a statute or binding decision.” Discovery or ediscovery expenses are not specifically itemized under LR 54.1(b)
Applying Race Tires, Judge Thynge approved just $1,729.28 as taxable, and requires Amazon to "produce documents that distinguish the costs for converting documents, which were recoverable, from costs for processing, which were not" in order to recover any other eDiscovery costs.
Clearly §1920(4) still has some value to prevailing parties in Delaware District Court (and elsewhere in the 3rd Circuit), just not as much as it once appeared.
2012 Federal Trial Practice Seminar: An Introduction to Federal Practice in the District of Delaware
From the Delaware Federal Bar Executive Committee:
The Delaware Chapter of the Federal Bar Association, in conjunction with the United States District Court for the District of Delaware, is pleased to announce another exciting new initiative. On the evenings of Thursday, May 17 and Thursday, May 31, 2012, from 5:00 to 7:30 p.m., the District Court and FBA will sponsor a two-night seminar program entitled “The Federal Trial Practice Seminar Presents: An Introduction to Federal Practice in the District of Delaware.” The sessions will take place in Courtroom 2B at the J. Caleb Boggs Federal Building.
Attorneys who have been practicing in the District for three years or less are eligible to participate in this seminar. One of the two seminar sessions will relate to an attorney’s interaction with opposing counsel and participation in the litigation process, while the other session will focus on an attorney’s interaction with the Court. Each session will include a presentation from a speaker and a panel discussion. The speakers and panel members will be current and/or former judges of the District Court.
Participation is limited to FBA members. Current FBA members may register for the seminar by contacting Steve Brauerman via e-mail at email@example.com, by no later than May 14, 2012. Those interested in participating in the seminar who are not currently FBA members may fill out and submit the attached application form in order to become a member. Alternatively, they may contact Mr. Brauerman at the e-mail address listed above to obtain additional information about FBA membership.
Space for the seminar is limited and applicants will be accepted on a first-come, first-served basis. Applicants should be available to attend both sessions. Admission to the seminar is free and the FBA expects to apply for Continuing Legal Education credit in Delaware for both sessions.
The "Introduction to Federal Practice" seminar will be organized by the same administrative team that has organized our successful "Federal Trial Practice Seminar" (or "FTPS") in 2010 and 2011. The FTPS, an eight-week trial skills seminar program offered to attorneys in their first ten years of practice, will be next offered again in Spring 2013.
- Note number one is that I promise to resume posting regularly. I haven't been very good at keeping up here as my case load has grown. It was important for me to spend my time focusing on managing my growing eDiscovery client work. (Don't feel bad though, because you aren't the only ones I've been neglecting. I didn't go to the Georgetown Advanced eDiscovery Institute, LTNY, or either of the last two Sedona Conference® WG1 meetings.) Now that I'm sure everything is under control, I can return to the blogosphere. Yay!
- Speaking of my return to the sunlight, I am honored to be a panelist at the upcoming annual ARMA Diamond State Chapter seminar, INFO XXX – RIM on the Edge. (Cool name! Jealous much?) I will be on a panel discussing Knowledge Management. I'm excited that two of my favorite people, Vince Catanzaro and Molly DiBianca, are also participating.
- Delaware's eDiscovery rockstar, Kevin F. Brady, has finally, officially joined forces with nationally known corporate litigator and blogger Francis G.X. Pileggi in the Wilmington, Delaware office of Eckert Seamans Cherin & Mellott. Kevin has often guest posted on Francis' blog, and the two have collaborated on other projects. I wouldn't say they exchange long-protein strains a la Kang and Kodos, but they've been professionally linked together in the past.
- Last, but definitely not least. LeClair Ryan's Dennis Kiker, co-author of the excellent The e-Discovery Myth blog, has two posts discussing the emergence of the true eDiscovery lawyer—those of us who have dedicated our legal practice to eDiscovery. Take a look at "I Want an E-Discovery Lawyer for My E-Discovery Project" and the follow up "E-Discovery Lawyers – Part II."