Neglected to search for and produce several categories of documents; and

Deleted relevant emails.

The Defendants sought an order permitting a forensic examination of Plaintiff’s computer files based on the allegations the Plaintiffs deleted relevant emails. Prestige Global Co. v. L.A. Printex Indus., 2012 U.S. Dist. LEXIS 63550, 6-7 (S.D.N.Y. May 3, 2012).

However, the Defendants/Counter Claimant claims did not have the abrasion resistance to withstand judicial review.

Spinning a Judicial Opinion

Judge James Francis IV is no textile apprentice when it comes to discovery disputes. The Court quickly found the Defendants failed to show the Plaintiff did not conduct an adequate search for discovery.  Prestige Global Co., at *7.

The Court explained that the Defendant relied on testimony from one witness who said she was not shown the Defendant’s discovery requests and that she was not asked to search for “many” of the documents identified in the requests. Id.

Judge Francis explained:

[T]here is no requirement that a particular witness, even one designated under Rule 30(b)(6), conduct her own search for documents. Counsel, working with whoever may be the relevant custodians, generally search for documents responsive to a discovery request, and, according to Family Dollar, that is precisely what occurred here. Furthermore, Family Dollar has identified by bates number the documents that it produced in each of the categories about which Printex complains.

Prestige Global Co., at *7-8.

The Court held the Defendant made no showing that the Plaintiffs had engaged in spoliation of evidence and could have warranted a forensic examination of a computer hard drive. Prestige Global Co., at *8-9.

Spoliation, in its simpliest terms, requires that a party violated the duty to preserve. Prestige Global Co., at *8-9. The duty arises when a party “reasonably anticipates litigation.” Prestige Global Co., at *9-10.

The Court held that there was no evidence that the emails subject to the spoliation claims were deleted when the Plaintiff could have reasonably anticipated litigation.  Prestige Global Co., at *10.

As the Court explained:

The garments containing the accused design were produced for the 2008 and 2009 seasons, and any e-mails relating to them were in all likelihood deleted by the end of 2009. Yet, Family Dollar had no preservation obligation until March 2011, when Family Dollar first learned of the claims because Printex filed suit against it in California. Therefore, no forensic examination is warranted.

Prestige Global Co., at *10-11.

Bow Tie Law

There are two interesting issues in this case: searching for responsive discovery and the duty to preserve.

On a fundamental level, the duties of competency and candor to the Court require adequate searches for relevant discovery.  However, in a company of 3,000 individuals, that does not necessarily mean that everyone in the company subject to the duty to preserve must conduct searches for responsive ESI.  Moreover, that could lead to the “fox guarding the henhouse” situation best avoided in eDiscovery.

The concept of “relevant custodians” is one that should not be forgotten by attorneys. Many companies have email and content management systems that records managers and/or ESI consultants can search for responsive ESI. This requires client interviews to determine the relevant custodians and understanding not just who was involved in the facts of the lawsuit, but any terms of art they used in communicating and what technology used in the normal course of business to communicate.

After a content management system is used to enact a litigation hold and export ESI for data reduction, there are several options for attorneys conducting review. Deploying software with data analytics that can learn from a skilled reviewer, enabling the software to “predict” other responsive ESI is one option; Early Case Data Assessment software is another to narrow a dataset to relevant ESI; at a minimum, attorneys should have the data de-duplicated and other data reduction strategies commonly used by litigation support providers before beginning traditional review.

The “triggering event” for the duty to preserve is a fact intensive exercise for many attorneys. They need to understand both their client’s data retention and destruction policies (let alone whether the client was following their policies) and when the duty to preserve began.

ESI that is destroyed as part of regular business operations without a duty to preserve is not subject to spoliation challenges. However, this requires that a party understands which of the 14,000 records retention laws in the US apply to their company; they follow their data retention/destruction policy; and that duty to preserve was triggered after data was destroyed in the regular course of business.

The Conference was content driven, with a keynote by Chris Dale of the e-Disclosure Information Project.  Chris is always a great speaker, sharing his history of practicing law, getting involved with technology and where eDiscovery is going. Chris did warn that law schools are not preparing students enough on eDiscovery.

e-Discovery luminary Browning Marean from DLA Piper spoke on litigation holds and preservation. Browning is a classy presenter, who could have been a sports broadcaster in another life, and highlighted the major issues in preservation.

A “dramatically lit” Browning Marean presenting on litigation holds.

Cindy Williams, CEO of iConect, invited me to moderate a panel discussion on the Future of Review. The panel had an all-star line-up, including Mikki Tomlinson of the EDJ Group Inc, Vivian Tero of IDC, Chris Dale and Browning Marean.

The Future of Review panel had the following takeaways:

Attorneys will always practice law

Technology will enable review to go faster and take fewer “big firm” attorneys to conduct discovery review

Law schools are not preparing future attorneys with the education they need on eDiscovery

New technologies, currently used by government agencies, will change eDiscovery, such as with facial recognition software for photos and video

I enjoyed seeing several demonstrations of iConect’s XERA. I was impressed with their YouTube video of using XERA on the iPad.

I appreciate iConect inviting me to their conference and look forward to attending next year.

The pilots who flew the X planes of the 1940s to 1960s built the future we have today. Simply put, without the Space Program, we would not have had the Computer Era of the 1970s. Without the innovations of the 1970s, we would not have social networks and smartphones of today.

Lawyers and Judges do not come to mind when you say “test pilot.”  However, we do have brave attorneys and judges willing to “fly higher” than others for the greater good. Magistrate Judge Andrew Peck is one of them for his Da Silva Moore v Publicis Groupe & MSL Group opinion.

Judge Peck’s “computer-assisted review” opinion is a watershed because of its recognition of using technology to save money and find responsive electronically stored information.  As Michael Arkfeld commented on the Moore opinion being upheld, “Years from now we will look back and refer to this as the Zubulake for Search!”

When discovery is in the terabytes and there are millions of files to review, Federal Rule of Civil Procedure Rule 1 requirements to “secure the just, speedy, and inexpensive determination” of a lawsuit are often the first casualties of litigation. Fed. R. Civ. P. 1.

The Plaintiffs challenged Judge Peck’s Da Silva Moore order on numerous grounds. District Judge Andrew Carter upheld the order, referring to the findings as “well reasoned and they consider the potential advantages and pitfalls of the predictive coding software.”  Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279 (ALC) (AJP).

Let’s explore the significance of Magistrate Judge Peck’s order.

What is Computer Assisted Review?

There are many forms of “computer-assisted review” besides “predictive coding.”  For example, California Rules of Court Rule 3.750(b)(10) allows a Court in complex litigation to order the parties to use an “electronic document depository.”  Such a depository would likely be a “cloud” solution, enabling parties to individually login to access the discovery for search and review.

Magistrate Judge Facciola is also no stranger to cases highlighting “computer-assisted review.”

In El-Amin v. George Wash. Univ., Judge Facciola ordered the parties consider using a hosted review platform.

The order set out as a “primary goal” for the parties to select a review platform with “hyper-linked to fields in a database that will permit the instantaneous retrieval from within the database of the information offered by plaintiffs in support of any factual proposition.”  El-Amin v. George Wash. Univ., 2008 U.S. Dist. LEXIS 85009 (D.D.C. Oct. 22, 2008).

Judge Facciola also warned of trying to use every new litigation support technology to trying to find electronically stored information:

[N]ew technologies have the capacity to be outcome determinative but often at significant expense. Thus the courts are required to strike a balance between allowing the requesting party to take full advantage of the technologies available to it and protecting the producing party from having to pay to leave no stone unturned. Resting all of the costs of electronic discovery on the producing party may create a perverse incentive on the part of the requesting party to dispense with reason and restraint and unleash every new technology under the sun to try and find information that supports the requesting party’s claims.

Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 47841, at * 29-30 (D.D.C. May 27, 2009).

Lite This Candle: Data Analytics & Discovery

“This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”

Judge Andrew Peck

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *2 (S.D.N.Y. Feb. 24, 2012)

“Computer-Assisted Review” as discussed in the Da Silva Moore opinion focused on “predictive coding.”

This is a significant difference than many of the past cases addressing “computer-assisted review,” because many of those cases either focus on 1) simply using a review application; or 2) search terms and/or the adequacy of a production.

Judge Peck defined “computer-assisted coding” in his article “Search Forward,” as the “use [of] sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e., training by) a human reviewer.” Moore, at *5.

“Predictive coding” is probably better defined as data or mechanical analytics. “Data Analytics” is defined on SearchDataManagement.com as follows:

Data analytics (DA) is the science of examining raw data with the purpose of drawing conclusions about that information. Data analytics is used in many industries to allow companies and organization to make better business decisions and in the sciences to verify or disprove existing models or theories. Data analytics is distinguished from data mining by the scope, purpose and focus of the analysis. Data miners sort through huge data sets using sophisticated software to identify undiscovered patterns and establish hidden relationships. Data analytics focuses on inference, the process of deriving a conclusion based solely on what is already known by the researcher.

Taking Flight: Goals of Discovery Review

The practice of law is frequently a casualty when it comes to reviewing large sets of data in discovery.

It is important not to forget the goals of discovery: Document review does not exist for the sake of document review; it exists to find relevant information.

Magistrate Judge Peck outlined the following goals of discovery review in his order, which stand as a strong reminder of the purpose of discovery:

The objective of review in ediscovery is to identify as many relevant documents as possible, while reviewing as few non-relevant documents as possible.

Recall is the fraction of relevant documents identified during a review; precision is the fraction of identified documents that are relevant.

Thus, recall is a measure of completeness, while precision is a measure of accuracy or correctness. 

The goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the “value” of the case.

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *27 (S.D.N.Y. Feb. 24, 2012) (Emphasis Added)

The Eyes of the World Are Upon You: Why Court Found Computer Assisted Review Appropriate

Magistrate Judge Peck found “computer-assisted review” to be appropriate for the following reasons:

(1) The parties’ agreement [Something contested by the Plaintiffs]

(2) The vast amount of ESI to be reviewed (over three million documents)

(3) The superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches)

(4) The need for cost effectiveness and proportionality under Rule 26(b)(2)(C)

(5) The transparent process proposed by [Defendant].

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *35-36 (S.D.N.Y. Feb. 24, 2012)

Fairing: Reading Rule 26(g)

“In large-data cases like this, involving over three million emails, no lawyer using any search method could honestly certify that its production is “complete” — but more importantly, Rule 26(g)(1) does not require that. Plaintiffs simply misread Rule 26(g)(1).”

Judge Andrew Peck

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, 20-23 (S.D.N.Y. Feb. 24, 2012).

The Plaintiffs challenged the predictive coding protocol under Rule 26(g)(1)(A), arguing that production had to be certified as “complete,” and that the Defendants were given “unlawful cover” with the predictive coding protocol. Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *21 (S.D.N.Y. Feb. 24, 2012).

Judge Peck held the Plaintiffs’ reading of Rule 26(g)(1)(A) was erroneous, because the certification requirements applied to initial disclosures under Rule 26(a)(1); Discovery responses are covered by Rule 26(g)(2)(C)’s proportionality principle.  Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, 20-23 (S.D.N.Y. Feb. 24, 2012).

Go Around: Federal Rule of Evidence Rule 702 & Daubert

The Plaintiffs challenged the predictive coding protocol as violating Federal Rule of Evidence Rule 702 and Daubert, in part, because the Defense experts spoke at the hearing, but were not sworn in at the time. Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *23 (S.D.N.Y. Feb. 24, 2012).

The Court held that Rule 702 & Daubert apply to presenting evidence at trial; the Rules are not applicable in how ESI is searched for in discovery. Id. As the Court explained:

If MSL sought to have its expert testify at trial and introduce the results of its ESI protocol into evidence, Daubert and Rule 702 would apply. Here, in contrast, the tens of thousands of emails that will be produced in discovery are not being offered into evidence at trial as the result of a scientific process or otherwise. The admissibility of specific emails at trial will depend upon each email itself (for example, whether it is hearsay, or a business record or party admission), not how it was found during discovery.

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *23 (S.D.N.Y. Feb. 24, 2012).

Message from the Control Tower

District Judge Andrew Carter upheld Magistrate Judge Peck’s order after the Plaintiffs challenged Judge Peck’s order on numerous grounds. Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279 (ALC) (AJP).

Judge Carter said the following on the protocol (and the confusion over whether the Plaintiffs agreed to the protocol):

Nevertheless, the confusion is immaterial because the ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs. It provides that the search methods will be carefully crafted and tested for quality assurance, with Plaintiffs participating in their implementation. For example, Plaintiffs’ counsel may provide keywords and review the documents and the issue coding before the production is made. If there is a concern with the relevance of the culled documents, the parties may raise the issue before Judge Peck before the final production. Further, upon the receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method. At this stage, there is insufficient evidence to conclude that the use of the predictive coding software will deny Plaintiffs access to liberal discovery. 

Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279, at *3-4 (ALC) (AJP).

Judge Carter found the challenge on the reliability of the “predictive coding” were “premature.”  The Court stated, “It is difficult to ascertain that the predictive software is less reliable than the traditional keyword search.” Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279, at *4 (ALC) (AJP).

The Court noted that experts were present at the hearing and that the “lack of a formal evidentiary hearing at the conference is a minor issue because if the method appears unreliable as the litigation continues and the parties continue to dispute its effectiveness, the Magistrate Judge may then conduct an evidentiary hearing.” Id.

Judge Carter stated the following on Plaintiffs’ challenges to the protocol being “speculative”:

Judge Peck is in the best position to determine when and if an evidentiary hearing is required and the exercise of his discretion is not contrary to law. Judge Peck has ruled that if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge. The Court understands that the majority of documentary evidence has to be produced by MSLGroup and that Plaintiffs do not have many documents of their own. If the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative. 

Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279, at *4 (ALC) (AJP).

Bow Tie Thoughts

Judge Peck and Judge Carter’s opinions will have a lasting impact in eDiscovery.  This is not a case of machines replacing humans, but the importance of using technology to identify what is relevant to a lawsuit.  Moreover, perfection is not the standard in discovery; proportionality is simply not disappearing ink in the Federal Rules of Civil Procedure.

It is also noteworthy that Judge Carter adopted Judge Peck’s analysis of Rule 26(g) and Federal Rule of Evidence Rule 702 in footnote 3 of his opinion.  I have met many attorneys who viewed productions needing to be certified as being “complete and correct” under Rule 26(g)(1)(A).  Seeing both a Magistrate Judge and District Judge who held that productions are not held to a standard of perfection, but one of proportionality, should bring more reason to large cases requiring the review of terabytes of ESI.

The goal of discovery is to find relevant information.  Data analytics that assist attorneys in determining relevant ESI will enable lawyers to focus on litigating their clients interests, opposed to slogging through protracted document review.

The adoption of “data analytics” in discovery review will be a significant step to focusing on the practice of law instead of review. However, like any technology, it must be used correctly. This requires attorneys with knowledge, who put the time in to learn how the application operates. Moreover, the system must be tested to ensure either the system is working correctly or whether the search terms need to be adjusted to find relevant ESI. There are a host of other technical issues to make sure the process is defensible.

“Data Analytics” will not be limited to helping attorneys with the three million record cases. Solo practitioners to lawyers at mid-sized firms who can leverage this technology (once commercially affordable or offered by service providers) to identify relevant ESI out of 20,000 records in a matter or days, or hours, will provide greater services to their clients than those who are not using such technology.

Judge Frank Maas had to interpret the legal Tarot Cards in an employment dispute involving a Plaintiff who sought online psychic advice.

The Defendants sought discovery from the third-party online advice and consulting service, as the subject matter of the communications arguably were relevant to the lawsuit.  Glazer v. Fireman’s Fund Ins. Co., 2012 U.S. Dist. LEXIS 51658, 9-10 (S.D.N.Y. Apr. 4, 2012).

The third-party was a “…platform for on-line advice and professional consulting services.” Glazer, at *2.  The consulting services included many professions, including legal services. Id.

The Plaintiff “chatted” with a psychic on advice pertaining to her job, work performance and other issues the Defendant argued were relevant to the lawsuit. Further, the Plaintiff would email excerpts from her chat sessions to her work email account. Glazer, at *2-3. The Plaintiff closed her account in November 2011 and deleted her old chats sometime before closing her account. Glazer, at *3.

The third-party opposed the discovery request, arguing the Plaintiff could open a new account and access her old chats herself. Glazer, at *4-5.

The Plaintiff argued that the Stored Communication Act proscribed the third-party from producing chat transcripts, because an electronic communication service (“ECS”) provider may “not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” Glazer, at *5-6, citing 18 U.S.C. § 2702(a)(1). The Plaintiff further argued that a remote computing service (“RCS”) provider may not “knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service.” Glazer, at *6, citing § 2702(a)(2).

The Court stated that the third-party was either a RCS or ECS, or both, but there was a questions whether the communications were electronically stored under the Stored Communication Act.  Glazer, at *6-7.

The Court effectively decided to avoid the SCA issues, including whether the communications were electronically stored or whether the Plaintiff consented to their disclosure.  Instead, the Court “directed” the Plaintiff to consent to the disclosure of relevant chats.  Glazer, at *9. The Court stated:

Indeed, even if the Court were to conclude that the SCA is inapplicable to the discovery that Fireman’s Fund seeks, it would make more sense to require that Glazer produce the relevant communications herself, with LivePerson needing to do so only to the extent that Glazer cannot.

Glazer, at *9-10.

Based on the above, the Court ordered the Plaintiff to do the following:

Open a new account

Retrieve all available paid chat transcripts

Produce non-privileged electronic copies to the Defendant

Glazer, at *10.

Judge Maas did not place any subject matter restrictions on the chat transcripts, because the material the Defendants presented to the Court was “relevant for at least discovery purposes.” Glazer, at *10.

Bow Tie Thoughts

I think Judge Maas got this case right on producing ESI highly comparable to social media information. Instead of propounding discovery on third parties with lengthy analysis of the Stored Communication Act, or compelling a producing party to surrender their login credentials to a requesting party, the burden should be on the producing party to review and produce relevant electronically stored information.

Discovery over email does not require passwords and login credentials being surrendered to a requesting party to review email messages at will.  Moreover, cases involving the mirror imaging of hard drives do not allow a requesting party to review the entire contents of someone’s digital life. In most situations, the producing party can review for relevance or privilege.

Social media should be no different. Relevancy should not ignored simply because of “friend requests” or Tweets.

The Court agreed with the Defendants that the Plaintiffs failed to show any spoliation of evidence. Kullman, at *2.

The Plaintiffs’ argument failed on relevancy grounds, because the Plaintiffs failed to show any evidence showing the existence, or loss, of any relevant ESI. Kullman, at *4.

The Court further rejected the “conjecture and speculation” of the Plaintiffs that “[i]t would require a leap of the imagination to think that the character of the destroyed electronic evidence would have been anything but that of the electronic evidence that was produced [at trial], which was largely supportive of Plaintiffs’ claims.” Kullman, at *4.

The Court noted that Plaintiffs did not identify any evidence supporting their argument or trial testimony that other similar documents were destroyed. Kullman, at *4-5. As the Court stated, “Such unsupported conjecture and speculation do not justify the issuance of an adverse inference instruction.”  Id.

Chief Judge Gary Sharpe further found that the Plaintiffs failed to show any bad faith by the Defendants in the preservation of evidence. As such, the Court held the Plaintiffs did not “suffer a miscarriage of justice” and denied the motion for a new trial.  Kullman, at *5.

Bow Tie Thoughts

The preservation of electronically stored information is simply more than claiming ESI is lost or destroyed; a party must offer some evidence it once existed.  “Lost” ESI may manifest in a variety of ways.

First, there could be a relevant email received by Plaintiff that the Defendant does not produce; this could show either an issue with preservation or a faulty production.

Second, there could be production gaps, such as dataset having 3,000 emails and attachments one month, zero the next, and 4,000 the following. A large production gap could be a warning light there is missing ESI, either because of inadequate preservation or a production mistake.

Third, there could be an outright admission in testimony, such as backup tapes being overwritten or custodian deleting email because they did not understanding a litigation hold.

Regardless of its form, parties must be able to prove to a judge that a form of spoliation has taken place as part of any spoliation analysis before adverse inference instructions are issued. There is still more to the analysis and issues of proportionality, but showing relevant ESI once existed is the first step to establishing spoliation.

The litigation involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.

The Plaintiffs challenged the sufficiency of the responses to multiple discovery requests, starting with their first request for production.

Plaintiffs’ Request for Production 1 directed the Defendant to produce information from 10 individuals identified by the Defendants with knowledge of the facts in the lawsuit.  Chura, at *3-4.

The Defendants’ reply referred the Plaintiffs to the complaints and personnel files of the Plaintiffs. Chura, at *4.

The Plaintiffs claimed the Defendants failed to produce the “written complaints, any emails or phone logs, the investigation files, and their personnel files.” Chura, at *4. The production also lacked ESI one would normally expect in employment litigation, such as

[E]mails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses;

[N]otes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked; and

[R]eports and emails to the corporate office regarding the complaints.

Chura, at *4.

The production void also lacked any information created by the HR Director or facility administrator regarding their investigation; complaints by the Plaintiffs; complete wage payment records; performance appraisals; or witness statements.  Chura, at *5-6. As the Plaintiffs argued and Court recounted:

It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.

Chura, at *6.

The Court found it was unlikely the Defendant had no responsive information besides the personnel files and discrimination complaints.

Judge Waxse also stated it was “questionable” that the investigation of the complaints had no email, correspondence of other reports.  Chura, at *6.

Further, the Plaintiffs claimed the Defendants’ search methodology was simply running an Outlook search on the alleged harasser’s computer. Chura, at *7.

The Court ordered the following evidentiary hearing over the discovery dispute:

Based upon the limited information provided in the parties’ briefing, the Court cannot determine whether Defendant met its duty to both preserve relevant evidence or conduct a reasonable search for ESI responsive to Request No. 1. It is unclear what actions Defendant undertook in order to preserve and search for ESI responsive to Request No. 1. The Court finds that Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to the discovery requests.n5 The Court will therefore set an evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI responsive to Plaintiffs’ interrogatories and requests for production. Based on the evidence presented at the hearing, the Court will determine whether Defendant made reasonable efforts to preserve relevant evidence and search its computer systems for ESI responsive to Request No. 1.

Chura, at *7-8.

Evidentiary hearings were also granted to several other challenges to the sufficiency of the Defendants’ searches over other discovery requests.

Bow Tie Thoughts

There are many attorneys that have a difficult concept with searching for electronically stored information.  I have met some who consider “search” merely running a single keyword search in Outlook.

For some attorneys, asking them to define “search” is par with asking them to define “liberty.”  There are many forms of “searching” and it is important to understand how the term is being used in the different stages of litigation.

“Search” may mean to a corporate client using a content management system to identify custodians, date ranges and other determining information to identify ESI for preservation.  This ESI can then exported out for analysis in an “early case data assessment” platform or processed for document review.

“Search” may mean to an individual party the collection of data with a strategic collection methodology that can be defended in court. This can include preserving the information with target search technologies to find relevant ESI, such as AD Triage or PinPoint Labs Harvester.

A lawyer with a “small” case in the single Gigabytes may want to use a product like Proof Finder by Nuix for searching the dataset for relevant ESI.

Moving to the other side of the data spectrum, a party with double digit Terabytes of data may want to “search” the dataset with a “computer-assisted review” application, such as OrcaTec’s Document Decisioning Suite. There are several products on the market that can “learn” from a reviewing attorney and identify relevant other relevant ESI based off the attorney’s relevancy determinations.

The actual review of electronically stored information often requires running search terms across ESI based off a propounding party’s discovery requests.  All litigation support review platforms have basic search technology, in addition to different advanced analytical tools.

For example, XERA from iConect can identify relationships between email messages with its “6 Degrees – Relationship Visualizer.”

There is amazing technology in the market to solve eDiscovery challenges, however, there is still a huge “search” problem in the preservation and production stages of a lawsuit.  Many of these issues can be resolved by using the right technology by people with knowledge on how to use the technology correctly. The right technology will differ case to case, which only highlights the need for lawyers to work with consultants who understand eDiscovery tools as they relate to different clients.

(Disclosure: I have business relationships with all of the companies mentioned in this post and friends at each organization).

Goldsmith also addressed whether the admission of computer-generated photographs and a video of the traffic violation were unsupported by evidence that the computer operated properly. People v. Goldsmith, 203 Cal. App. 4th 1515, 1518 (Cal. App. 2d Dist. 2012).

The California Supreme Court has held that that “our courts have refused to require, as a prerequisite to admission of computer records, testimony on the ‘acceptability, accuracy, maintenance, and reliability of … computer hardware and software.’ ” Goldsmith, at *1523.

California Courts understand there might be errors with computer records; however, the witness offering the records can be questioned on cross-examination about any errors. Goldsmith, at *1523.

As the Court explained:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer. Goldsmith produced no evidence that would support a finding of the nonexistence of this presumed fact. Therefore the trier of fact was required to assume the existence of the presumed fact. (Evid. Code, § 604.)

Goldsmith, at *1522-1523.

As such, the California Court of Appeal found there was no error in admitting the computer-generated photos from the red light camera, because there was no evidence offered to show the red-light camera was not functioning correctly or issues of errors raised on the cross-examination of the police officer offering the evidence. Goldsmith, at *1524.

Is the PhotoCop Testifying?

The Defendant claimed the photos and data imprinted on them were hearsay. Moreover, the Defendant claimed the State did not prove the business records or public records exceptions to the hearsay rule applied to the computer-generated reports. Goldsmith, at *1525.

The Court of Appeal did not agree, holding the photos and video were not hearsay, thus the hearsay rule did not apply. Goldsmith, at *1525.

Pursuant to California Evidence Code section 1200(a), ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Pursuant to California Evidence Code section 1200(b), hearsay evidence is inadmissible, except as provided by law. Goldsmith, at *1525.

California Evidence Code section 175 defines a “statement” as being made by a “person,” which by definition does not include a computer. As the Court explained:

The Evidence Code does not contemplate that a machine can make a statement, and a printout of results of a computer’s internal operations is not a “statement” constituting hearsay evidence.

The hearsay rule stems from the requirement that testimony shall be tested by cross-examination, which can best expose possible deficiencies, suppressions, sources of error, and untrustworthiness that may lie beneath a witness’s bare, untested assertions; the hearsay rule should exclude testimony which cannot be tested by such cross-examination. It is not possible, however, to cross-examine computer-generated photographs or videos. (Nazary, supra, 191 Cal.App.4th at pp. 754–755.)  As “demonstrative evidence,” photographs and videos are not testimony subject to cross-examination, and are not hearsay. Thus the hearsay rule did not require their exclusion from evidence.

Goldsmith, at *1525-1526.

The Court specifically stated they disagreed with People v. Borzakian (2012) 203 Cal.App.4th 525, because the Borzakian Court did not cite the rule that “that testimony of the accuracy, maintenance, and reliability of computer records is not required as a prerequisite to their admission, and did not agree that computer-generated photographs are not hearsay evidence.” Goldsmith, at *1526.

Bow Tie Thoughts

The Rules of Evidence are creatures of statute to ensure the trustworthiness of legal proceedings, burdens of proof and accurate factfinding (See, Evidence, 3^rd Edition, Mueller & Kirkpstrick, Aspen Publishers). Without the Rules of Evidence, proceedings could turn into the Wild West.

Electronically stored information is still “new” to many attorneys, despite social media and smartphones being a societal norm. Many attorneys have significant trouble with ESI in discovery and even more difficulties with the Rules of Evidence.

Computers do not make statements; computers produce data. Human beings make statements and are the ones who program computers, maintain the machines and set parameters for producing reports. If there is a challenge to the evidence, it is best explored either on cross-examination of the witness offering the computer-generated report. Another option is to offer evidence of errors with the computer-generated report with another witness. However, the Rules of Evidence do not require the proffering party to disprove any possible errors as a condition of admissibility if no issue has been raised.

I am presented a webinar on Admissibility of ESI for iConect on March 29, 2012.  If interested in learning more about the Admissibility of ESI from Relevance to Unfair Prejudice, you can view the webinar on the iConect website. The password is Purple.

The recording of the iConect webinar “Let’s Review: Increasing Effectiveness of eDiscovery Review” is available to watch on demand at the following link: Let’s Review. The password is Review.

The webinar was sponsored and hosted by iConect, on March 15, 2012.

Let’s Review focuses on how to maximize technology on reviewing ESI, preparing for deposition, project management and other discovery best practices. The material includes a review of recent discovery cases and highlights how to review eDiscovery with XERA at the conclusion of the webinar.

To The Last, I Grapple With Thee

In EEOC v. McCormick & Schmick’s Seafood Rests., Inc., the parties disagreed over search terms for the following EEOC discovery request:

“[E]mail communications responsive to EEOC’s First Request for Production of Documents to Defendants, particularly those relating to applicants, hiring, complaints of racial discrimination, and server section assignments…”

EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2012 U.S. Dist. LEXIS 13134, 13-14 (D. Md. Feb. 3, 2012).

The Defendants claimed the EEOC did not provide any proposed search terms to limit the whale of a tale of email for the Defendants to search.  McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court explained the practice, and danger, of just the producing party searching oceans of email:

Common practice governing the discovery of electronically stored information requires the use of search terms to make an extraordinarily burdensome search comply with the tenets of Fed.R.Civ.Proc. 26(b)(2)(C). If the producing party generates the search terms on its own, the inevitable result will be complaints that the search terms were inadequate.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

Gamming Over Search Terms

In old nautical traditions, a gam is a rendezvous of ships at sea. In today’s legal world, it is similar to a meet and confer.

The Court, recognizing the need for the parties to discuss search terms to narrow the data to emails relevant in the lawsuit, ordered the following:

For that reason, this Court will require the parties to confer on the development of reasonable search terms to be used to obtain responsive email communications in this case.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court ordered the EEOC to provide a list of search terms within five days. The Defendants were ordered to respond with any possible within five days after receiving the proposed search terms. The parties were to have good faith negotiations over any disagreements.  McCormick & Schmick’s Seafood Rests., Inc., at *14-15.

…And like Melville’s great whale circling the ships, the Court stated that if the parties could not agree on reasonable search terms:

[The] Court will determine, after review of the parties’ proposed lists and particularized information regarding the burden to be imposed by the proposed search, which terms will be used to allow Defendants to provide responsive email communications.

McCormick & Schmick’s Seafood Rests., Inc., at *15.

Bow Tie Thoughts

Developing search terms with an opposing party can drive a lawyer to sound like Gregory Peck…and not as Atticus Finch from To Kill a Mockingbird. 

Search terms are not something a lawyer can take revenge on for producing large data sets. In fact, parties need to meet and confer in cases with large volumes of data, to avoid searching the oceans for relevant ESI.

Here are just a few strategies for determining search terms:

Select Team for Creating Search Terms:

Litigating attorney, client, expert in subject matter, expert in building keyword search strings

Determine data sources.

Brainstorm possible names, events, dates and phrases that may be connected to the case.

Compile a list of last names, first names, surnames, nicknames, positions and other titles connected to the case. 

Determine acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues. 

List date ranges that correspond with critical time period in case.

Determine key event terms (heart attack, cardiac, hospital).

Determine search phrases.

Use thesaurus to locate similar words.

See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f) (2011-2012 Ed.).

Document review should not be a Melvillean maelstrom of over expansive data. If the discovery is in the terabytes, search terms and a defensible methodology are a necessity in order to find the relevant ESI.  Moreover, cooperation between the parties is vital for success, to avoid one party selecting very narrow search terms and the other claiming the search was under-inclusive.

Mechanical Analytics, or predictive coding, is one of the “newer” technologies in being able to help determine relevant ESI.  Predictive coding is arguably necessary in cases with extremely large volumes of ESI, because of efficiency and cost-savings in being able to identify relevant ESI faster than traditional review.

In essence, the software learns from a reviewing attorney who is a subject matter expert in the case and identifies additional relevant ESI based off the work done by the attorney. That is a very simple description of the technology. For a more detailed discussion, see this article by Herb Roitblat from OrcaTec (Disclosure: I have friends at OrcaTec and I have referred business to them).

Finding relevant electronically stored information is not a mad hunt for a white whale. With the right technology and strategies, parties can narrow data sets to relevant information.

The Defendant described various ESI and other documents as part of their initial disclosures pursuant to Federal Rule of Civil Procedure Rule 26(a)(1).  Jo Ann Howard & Assocs., P.C. v. Cassity, 2012 U.S. Dist. LEXIS 17423 (E.D. Mo. Feb. 13, 2012).

The Plaintiffs argued in their motion to compel that the local Rules and the Case Management Order required the production of the Defendant’s initial disclosures, not merely their description. Jo Ann Howard & Assocs., P.C., at *8-9.

E.D. Mo. L.R. 26-3.01(A) states:

Disclosures shall be made in the manner set forth in Fed. R. Civ. P. 26(a)(1) and (2), except to the extent otherwise stipulated by the parties or directed by order of the Court. Disclosure of documents and electronically stored information pursuant to Rule 26(a)(1)(A)(ii) shall be made by providing a copy to all other parties, except as otherwise ordered by the Court. . . . .

Jo Ann Howard & Assocs., P.C., at *9.

The Court’s Case Management Order required initial disclosures and discovery to be produced by a specific date.

The Court found that taken together, the CMO and Local Rules required the Defendants to produce the information identified in their initial disclosures. Jo Ann Howard & Assocs., P.C., at *9-10.

The Court rejected the Defendant’s argument they did not need to produce anything, because the information was available from a Government production (The Plaintiffs claimed the Government production did not have the information identified in the Defendant’s initial disclosures).  The Court stated, “[A] party is not relieved of its obligation to produce discovery materials merely because those materials are available from other sources.” Jo Ann Howard & Assocs., P.C., at *10.

Bow Tie Thoughts

It is important to always know the local rules. While they cannot outright conflict with the Federal Rules of Civil Procedure, they may add additional requirements on a party.