Delaware eDiscovery Report

Predictive Coding Order Modified

Ian D. McCauley — Tue, 28 May 2013 08:46:05 -0500

A recent landmark decision in which the Court of Chancery ordered both sides to engage in predictive coding by using a mutually agreed upon vendor has been modified. The new order allows plaintiffs in the EORHB v. HOA matter to review their documents using traditional methods. They will also be allowed to choose a separate vendor than defendants.

The original order by Vice Chancellor Laster had ordered both parties to use predictive coding unless they could show good cause for why they would not benefit from using the technology. EORHB found that its document collection was relatively small. It is now generally accepted that the benefits of predictive coding are directly proportional to the size of the collection. In EORHB’s situation, the benefits of using predictive coding would have been outweighed by the costs due to its small collection. The Vice Chancellor thus approved the proposed order that was agreed to by both parties that the plaintiffs did not need to use predictive coding.

What does this new order mean? The idea that predictive coding is the panacea to all client costs associated with eDiscovery review has been overstated over the past few years. Predictive coding is a powerful tool, and one that should be employed in appropriate situations. Those include scenarios in which the document collection is quite large. It is not a one size fits all solution. It also demonstrates that more often than not, one party is faced with a much more significant eDiscovery burden than the other party.

A Glossary of eDiscovery Terms

Ian D. McCauley — Tue, 21 May 2013 15:03:48 -0500

We lawyers have a tendency to confuse our terminology when discussing technology. This is especially true when discussing the technical aspects of eDiscovery.

I was inspired by the excellent Grossman-Cormack Glossary of Technology-Assisted Review which attempted to define the terminology surrounding TAR. I prepared the following short glossary of commonly used eDiscovery terms to assist our group in understanding some of jargon used by eDiscovery professionals. The terms can be found after the break.

• Litigation Hold – The initial letter that is sent to a client to ensure that the duty to preserve is complied with.

• Preservation – The efforts that follow the litigation hold. Preservation involves turning off automatic deletion processess, the identification of key custodians and the interfacing with those custodians and the client’s IT manager.

• Collection – This involves the collection of any document (whether paper or ESI) from the client.

o Self Collection – A self collection occurs when the client chooses what documents will be collected for eventual review and production. The Court of Chancery has strongly advised against this See. Roffe v. Eagle Rock.

o Targeted Collection – A collection of client’s data using narrow parameters such as date restrictions and search terms. This is normally done in an attempt to cut down on costs. This type of collection has its own risks; if it occurs before a meet and confer all custodians and search terms may not be known and may be subject to change.

o Full Collection – A collection of a client’s entire mailbox and/or imaging of their hard drive. This ensures that all possible data is collected but could lead to greater cost down the road.

• Processing – This involves the deduplication of documents, making the documents searchable and ready for review and the extraction of metadata.

• OCR – Optical Character Recognition aka Searchable Text

• Deduplication – The process by which duplicate documents are eliminated, thus cutting down on the total number of documents to review.

o Global Deduplication – Deduplicating across an entire collection

o By Custodian – Deduplicating on a custodian-by-custodian basis.

• Search Terms – Terms that are developed for targeted collection or review of documents…or both. Search terms are used in order to cut down on costs associated with reviewing full collection of documents.

• Publishing/Migration/Loading – The process by which search terms are applied to a collection and the results are loaded to a review database.

• Review – The analysis performed on documents after publishing to a database. The review takes place in a review tool such as Concordance or Relativity. The analysis usually includes responsiveness to document requests, attorney-client privilege and key issues.

• Production – The method by which documents are selected for production to opposing or co-counsel. This involves the OCR’ing, bates stamping and delivery of TIFFs (Images), OCR (Text) and load files.

o TIFFs – The standard file format for the production of document images.

o Load Files – A file included with a production that allows it (including text, images and metadata) to be loaded into a review tool.

• Production Specifications – A set of options that typically appear in Requests for Production of Documents. Specifications cover the metadata fields to be produced, types of load files and whether documents will be produced in TIFF form.

Proposed FRCP Amendments

Ian D. McCauley — Tue, 30 Apr 2013 08:35:18 -0500

Henry Kelston of the Legal Intelligencer provides a useful summary of the amendments to the FRCP that were recently proposed by the United States Courts’ Advisory Committee on Civil Rules.

The rules would seek to create uniformity on a variety of issues including scope and proportionality of discovery, sanctions for failure to preserve discoverable information and limits on written discovery and depositions.

Kelston states that the proposed amendment to Rule 37(e) has drawn the most attention. This proposed amendment seeks to impose a uniform ruling on sanctions for the failure to preserve data. The imposition of sanctions by Federal Court has varied, from the per se gross negligence standard articulated in the landmark case of Zubelake to the factors test recently adopted by the 2nd Circuit in Chin v. Port Authority.

One of the most discussed topics at this year’s LegalTech in New York was about information governance and how to balance it with the duty to preserve. Opinions vary on just what needs to be preserved, and there was a general sense that corporations may actually be preserving too much data. These proposed rules would provide much clarity to in-house and outside counsel when determining just what and how much data needs to be kept.

Greetings

Ian D. McCauley — Fri, 26 Apr 2013 15:15:43 -0500

Hello, and welcome back to the Delaware eDiscovery Report. There have been many developments recently in the world of eDiscovery, particularly in Delaware. Before providing a rundown of these new cases and guidelines, I would like to offer an introduction.

My name is Ian McCauley. I have focused my practice solely on eDiscovery for the past 5 years with an emphasis on effective project management, early data/case assessment and litigation support/legal synergies. I hope to have other voices join the conversation as we begin the blog anew.

Notes from Carmel (er, Monterey)

Chris Spizzirri — Wed, 08 Aug 2012 18:00:37 -0500

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.

Poor, Deactivated Stuxnet

Chris Spizzirri — Mon, 25 Jun 2012 15:44:21 -0500

The archetypal cyberweapon, the Stuxnet worm, quietly deactivated itself yesterday. What does this have to do with eDiscovery? Lots.

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.

Confirmed: US and Israel created Stuxnet, lost control of it

Iran: Stuxnet 'failed' to stop nuclear work, as virus reportedly stops operating

Quick Links

Chris Spizzirri — Fri, 22 Jun 2012 17:17:20 -0500

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.)

Lawyers Talking About e-Discovery? Not So Much. (Dennis Kiker laments the sad truth that most lawyers still don't know to discuss and plan for eDiscovery. Amen Brother!)

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.)

Happy Friday!

General Counsel Are Unhappy With Outside Counsel's eDiscovery Services

Chris Spizzirri — Wed, 20 Jun 2012 09:55:33 -0500

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.

Quick Links

Chris Spizzirri — Fri, 15 Jun 2012 11:22:37 -0500

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)

Where Angels Fear To Tread: Daubert, FRE 702, and eDiscovery (discusses expert testimony to assess the reliability of predictive coding and other eDiscovery technology; included despite the fact that the author commits one of my pet peeves using the phrase "beg the question" (a specific type of flaw in formal logic) instead of "raises the question")

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)

Enjoy!

Latest Issue of the EDDE Journal is Out!

Chris Spizzirri — Fri, 08 Jun 2012 13:25:46 -0500

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 lastest issue features the following:

A Critique of the Delaware District Court's Revised Default eDiscovery Standard

Chris Spizzirri — Mon, 07 May 2012 14:53:00 -0500

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.

Translucence Anyone?

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.

String Theory

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.

Going Native

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.

Drum Roll…

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.

DE District Court Test Drives Race Tires America, Curbs Taxation of eDiscovery Costs

Chris Spizzirri — Wed, 18 Apr 2012 15:51:51 -0500

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

Chris Spizzirri — Tue, 17 Apr 2012 12:28:38 -0500

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 sbrauerman@bayardlaw.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.

Friday Notes

Chris Spizzirri — Fri, 24 Feb 2012 15:57:29 -0500

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. Read more at Delaware Law Weekly.

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."

17 Morris James Attorneys Named In The Best Lawyers in America® 2012 in 20 Practice Areas

Morris James Delaware — Wed, 31 Aug 2011 14:18:07 -0500

Seventeen Morris James attorneys are listed as being among the most elite lawyers in their practices in The Best Lawyers in America® 2012.

The Best Lawyers in America® has become universally regarded as the definitive guide to legal excellence. Their rigorous research is based on an exhaustive peer-review where leading attorneys cast votes on the legal abilities of other lawyers in their practice areas.

The Morris James attorneys listed in the 18th edition of the guide and the areas of law in which they are recognized include:

Richard P. Beck
Litigation – Real Estate (1983)
Real Estate Law (1983)

John M. Bloxom IV
Real Estate Law (2010)

P. Clarkson Collins, Jr.
Corporate Law (2005)
Litigation – Mergers and Acquisitions (2005)

Mary M. Culley
Elder Law (2008)

Keith E. Donovan
Personal Injury Litigation (2009)

Dennis D. Ferri
Medical Malpractice Law (2007)
Personal Injury Litigation – Defendants (2007)

Richard Galperin
Personal Injury Litigation – Defendants (2005)

Richard K. Herrmann
Information Technology Law (2003)
Technology Law (2003)

Francis J. Jones, Jr.
Personal Injury Litigation – Defendants (2008)
Personal Injury Litigation – Plaintiffs (2008)

Gretchen S. Knight
Family Law (2007)

Lewis H. Lazarus
Commercial Litigation (2006)
Corporate Law (2006)
Litigation – Mergers and Acquisitions (2006)

Mary B. Matterer
Litigation – Intellectual Property (2009)

Edward M. McNally
Corporate Law (2005)
Litigation – Mergers and Acquisitions (2005)

Mark D. Olson
Tax Law (2011)

James W. Semple
Commercial Litigation (2009)

Bruce W. Tigani
Tax Law (2011)

David H. Williams
Education Law (2007)
Employment Law – Management (2007)
Labor Law – Management (2007)
Litigation – Labor and Employment (2007)

(Year indicates first year listed in practice area)

[UPDATE] In Defense of Genger, Part II

Chris Spizzirri — Tue, 19 Jul 2011 14:20:45 -0500

Follow @cspizzirri

UPDATE:

I hate to say I told you so, but...wait, no I don't.

Yesterday, the Delaware Supreme Court issued its opinion in this matter affirming the Court of Chancery's spoliation finding. The Court held the spoliation finding proper, because Genger took affirmative steps to overwrite unallocated space, saying:

We do not read the Court of Chancery’s Spoliation Opinion to hold that as a matter of routine document-retention procedures, a computer hard drive’s unallocated free space must always be preserved. The trial court rested its spoliation and contempt findings on more specific and narrow factual grounds—that Genger, despite knowing he had a duty to preserve documents, intentionally took affirmative actions to destroy several relevant documents on his work computer. These actions prevented the Trump Group from recovering those deleted documents for use in the Section 225…

Compare with my statements below that

The [Court of Chancery] opinion in this case does not require preservation of all unallocated space in every case. Genger was sanctioned because he took affirmative steps to overwrite unallocated space, in violation of the Court's order... [T]here is nothing in this opinion that creates any requirement to preserve unallocated space. Rather, the opinion only says you shouldn't go out of your way to destroy it.

I feel quite vindicated in my defense, considering there were some persons and organizations of import in the eDiscovery community lined up on the other side. Obviously, reasonable minds can disagree, especially in interpreting court decisions. Ultimately, I am thankful that the Supreme Court's decision should allay any fears created by certain interpretations of the Court of Chancery's spoliation decision.

ORIGINAL POST (2011-03-11 13:20:45):

I had almost given up on writing this post considering how long it has been since I posted In Defense of Genger, Part I and (more importantly) how long it has been since the publication of the posts I am taking issue with. However, the ongoing confusion about this case has prompted me to action.

If you have read Part I, you are familiar with the Court of Chancery's decision in TR Investors LLC v. Genger, C.A. 3994-VCS (December 9, 2009) and with the allegations made by Leonard Deutchman, General Counsel at LDiscovery LLC, in a two-part post hosted by Law.com.  For those who are not familiar, Mr. Deutchman asserts that the Court got the decision wrong because it (1) does not understand the technology involved (Part 1) and (2) does not understand the law of eDiscovery (Part 2).

It's sufficient to say that I respectfully disagree with Mr. Deutchman on both charges. Rebutting his posts was a fun, interesting exercise for me, but it didn't seem terribly important. I saw it as an esoteric debate between eDiscovery geeks. That has changed, because, today, a prominent media outlet has published a post that elevates the confusion about this opinion and will cause unnecessary fear among corporate counsel.

The latest case of hand-wringing and confusion over this decision comes to us from none other than Forbes by way of Daniel Fisher's post "Delaware Ruling Would Require Massive Data Backups." Mr. Fisher opens his post stating that:

A little-noticed decision by a Delaware court has the potential to impose huge costs on companies unless it is reversed, computer-security experts say...[e]xperts say retaining such data would be prohibitively expensive since the unallocated space is essentially a trash bin that is altered each time a key is tapped.

Despite the fact that Mr. Fisher twice refers to "experts" (plural) as the source for these hyper-ventilations, his lone identified source for the post is Daniel Garrie, a lawyer and managing director at Focused Solution Recourse Delivery Group LLC , a computer consulting firm in Seattle.  Mr. Fisher's post continues:

“It’s almost impossible for large companies with massive amounts of equipment to comply,” said Garrie... “I don’t even know if it’s possible,” said Garrie. “I mean, anything’s possible with enough money,” but companies would have to take bit-level images of their hard drives on a regular basis and store them somewhere, to be retrieved each time they are sued. That means all the time for most large companies. The costs would be “exponentially larger,” than current electronic discovery measures. “Several large global companies,” clients he declined to name, “have expressed concern.”

Let me clear up the confusion: The opinion in this case does not require preservation of all unallocated space in every case. Genger was sanctioned because he took affirmative steps to overwrite unallocated space, in violation of the Court's order and without first telling anyone. The routine, passive overwriting of unallocated space was NOT the cause for any sanctions here, so there is nothing in this opinion that creates any requirement to preserve unallocated space. Rather, the opinion only says you shouldn't go out of your way to destroy it. Big, BIG difference.

To Mr. Garrie's credit, he is consistent—he is co-author of an article in the Northwestern Journal of Technology and Intellectual Property that makes the same mistaken arguments, and he filed a brief with the Delaware Supreme Court arguing for reversal of the Genger opinion. I obviously disagree with Mr. Garrie's opinions on this matter, but I am here to help, so I say:

Mr. Garrie, for the “[s]everal large global companies [that] have expressed concern,” please send them a link to this post and tell them not to worry.

I don't actually expect Mr. Garrie will do that, but perhaps some of his clients will stumble upon this post, in which case here is my advice to them:

If you act cooperatively and transparently, you will be fine. If you find yourself in a similar position to Mr. Genger's, share your concerns with opposing counsel and the court before you do anything. Don't take matters into your own hands and violate a court order by wiping a hard drive in the middle of the night—it's bad form and will only get you in trouble.

Stayed tuned for the decision of the Delaware Supreme Court—~~I may have a lot of words to eat~~...

The Tenth Circuit Speaks!

Chris Spizzirri — Thu, 05 May 2011 19:22:08 -0500

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No doubt jealous of all the attention our beloved Judge Shira Scheindlin receives, two days ago U.S. Court of Appeals for the Tenth Circuit Judge Neil M. Gorsuch issued an order in Lee v. Max International, LLC affirming a terminating sanction in discovery. Woo hoo!

In one fell swoop, Judge Gorsuch does the following:

1) Establishes a "3 Strikes and You're Out!" rule:

How many times can a litigant ignore his discovery obligations before his misconduct catches up with him? The plaintiffs in this case failed to produce documents in response to a discovery request. Then they proceeded to violate not one but two judicial orders compelling production of the requested materials.

After patiently affording the plaintiffs chance after chance, the district court eventually found the intransigence intolerable and dismissed the case as sanction. We affirm. Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one... should count on more than three chances to make good a discovery obligation. (emphasis added)

2) Enlightens us on the karma of discovery:

[T]here is such thing as discovery karma. Discovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations.

3) Establishes the "gimlet eye" standard of review:

We view challenges to a district court’s discovery sanctions order with a gimlet eye.

The lesson: Don't mess with District Judges and Magistrates in discovery.

Read the coverage at Above the Law where ALL YOUR DOCS ARE BELONG TO US.

[Update] Pulte Gets Pinched for Spoliation

Chris Spizzirri — Mon, 04 Apr 2011 16:01:39 -0500

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UPDATE:

I have amended my post based on some very thoughtful clarification from Dennis Kiker in the comments. Added text is underlined, and deleted text is ~~struckthrough~~.

ORIGINAL POST (February 28, 2011):

LTN reports that national home builder Pulte Homes was caught deleting emails and wiping hard drives in direct violation of a court order:

Forsyth County Superior Court Chief Judge Jeffrey S. Bagley has ordered sanctions against Pulte Home Corp. for destroying e-mails and other electronic evidence in an environmental lawsuit.

The sanctions... include paying attorney fees for plaintiffs...

"We expect that attorney fees and costs will be in the range of $400,000 -- making it the largest award of sanctions for willful spoliation of electronically stored information in Georgia history," said Michael P. Carvalho, attorney for Adele and Tim Simerly, who are suing Pulte over stormwater runoff...

In September 2009, Bagley ordered an investigation by a special master into allegations that Pulte's vice president of land development, George "Ted" Turner, had deleted e-mails related to the case. The order followed a deposition in which Turner said he had deleted e-mails and intended to continue doing so, according to Carvalho...

The Special Master's report concluded that Pulte employees violated Bagley's order on spoliation of evidence, specifically deleting e-mails as well as replacing and reformatting hard drives in some computers...

"Pulte argued that despite the fact that significant efforts had been undertaken by the court-appointed forensic expert, 'only 160 documents' had been produced as potentially deleted emails," wrote Bagley. "And of these 160 documents, none of the emails was ultimately determined to be a 'smoking gun,' which would have otherwise caused this court to conclude that Turner's deletion was intended to hide, cover up or obfuscate the truth.

"Despite this court's prior order prohibiting the continued deletion of emails, Pulte continued to engage in a pattern of … spoliation," the judge added.

Read the full post...

Generally, the destruction of information only rises to the level of sanctionable spoliation when (1) the duty to preserve information has attached to a party, (2) the party commits a culpable breach of that duty, and (3) the resulting destruction causes prejudice to the other party. The post above does not mention any direct evidence of prejudice caused by the information destruction, yet the Court—rightfully—still found spoliation. Good.

Why do I say the Court was right in finding spoliation even though one of the elements of spoliation seems missing? Because the requirement that culpably destroyed evidence be shown to have caused prejudice—i.e. to show that what was destroyed was in fact relevant—unfairly shifts the burden to the non-culpable party to prove it was harmed by another's bad act. To address that inequity, "prejudice may be presumed when the spoliating party acted in bad faith or in a grossly negligent manner..." Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order).

The Delaware Court of Chancery employed this logic in TR Investors LLC v. Genger, C.A. 3994-VCS in which the defendant, Genger, ~~culpably~~ knowingly, willfully, and in bad faith destroyed evidence then argued he should not be ~~found to have spoliated evidence~~ sanctioned absent proof from plaintiffs that the documents he destroyed were relevant. The Court had this to say about Genger's specious argument:

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.

Judge Bagley should say the same thing to Pulte.

[UPDATE] Using search as a shield?

Chris Spizzirri — Mon, 21 Feb 2011 12:37:00 -0500

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UPDATE:

Sorry for the quasi-necropost, but I just stumbled upon relevant case law. In reading Cecil Lynn's excellent recent article on Law.com, Drama & Destruction, that provides a great rundown of 2010 case law, I came across this case summary:

In Ross v. Abercrombie & Fitch, defense counsel argued unpersuasively that the defense had no obligation to search for or locate known documents that did not turn up using the parties' agreed-upon search terms. 2010 U.S. Dist. Lexis 47620, at *11-14 (S.D. Ohio May 14, 2010).

I haven't read the case, but this seems to support the proposition that a producing party's obligation to produce relevant materials is not limited by the application of search terms. In other words, search terms are not a shield to producing known, relevant documents. Thank you very much.

ORIGINAL POST (2009-09-18 12:22:33):

This isn't exactly timely, but it's been on my mind for months, and I wanted to share and get your feedback.

I had the pleasure of attending The Sedona Conference® Institute this past March in Philadelphia. During the last day lunch, a particularly interesting conversation started up at my table. I was sitting with people I had never met before and probably wouldn't be able to pick out of a crowd now, but we managed to have a brief and interesting discussion about keyword searching and the obligation to produce. I don't remember how it started, but the terms of the debate were this: Is there an obligation to produce responsive data that was not hit by negotiated keyword terms? That is, you have positive knowledge that responsive documents have been excluded by keyword searching. Are you obligated to produce them?

I thought, and still do, that there is absolutely an obligation to turn the documents over. Keyword searching is a method for finding responsive documents that are mixed in with a morass of non-responsive documents. But, if you have a collected group of documents that are responsive, there's no need to dump them in the unsorted pile in the first place. They should be set aside for production without having to be keyword searched at all.

I casually shared my opinion with the table and saw several nodding heads, but I was surprised to find that two gentlemen did not agreed at all. Their view was that, if the keywords were negotiated, then the results are the results and there's no obligation to turn over anything not hit by them. One gentleman (a litigator, if I recall correctly) flatly said he would not turn over the responsive documents. The other gentleman (a vendor, I think) rather snidely remarked something to the effect that 'You wouldn't tell the other side what to ask during depositions, would you?' I agreed with that but thought it was a specious analogy. Not wanting to ruin a pleasant lunch with a heated debate, I let the discussion go, but it's been eating at me ever since.

Compare the view of these two gentlemen to the view of those of us who use sampling techniques to test the accuracy of keyword searches. When testing for false negatives (exclusion of responsive documents), many people are of the opinion that even one false negative requires that the whole pile of excluded documents be manually reviewed. On the other hand, for the gentlemen at my table, it would make no sense to ever test keyword search results, because they wouldn't produce any false negatives they found. To me, not producing documents you know are responsive just because they weren't hit by negotiated keyword searches is like using keyword searching as a shield. That not only violates the principles of cooperation but amounts to bad faith.

So which is right? Am I being naive and Pollyanna-ish, or do these two guys not get it? Or maybe it's a little of both?

[UPDATE] eDiscovery is Optional in Delaware Court of Chancery

Chris Spizzirri — Fri, 18 Feb 2011 12:33:07 -0500

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UPDATE:

Apparently I am the only one who seems to be concerned with the Court of Chancery's unqualified allowance for parties to agree to forgo discovery of ESI. Here are the other blog posts I found that have reported on the new guidelines, not a single one raises any concern:

Delaware Court of Chancery Provides Good Advice on Preservation (Losey)

Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information (Brady)

Delaware’s influential Chancery Court issues preservation guidelines likely to have wide impact

Delaware Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information

Delaware Court of Chancery Recently Established Guidelines for Preservation of ESI

ORIGINAL POST:

Last week, the Delaware Court of Chancery—one of the nation's premier business Courts—unexpectedly issued a one and a half page "Guidelines for Preservation of Electronically Stored Information." Surprisingly, the Guidelines seem to allow parties to opt-out of document discovery entirely (see the last item below). In summary, the Guidelines are as follows:

There is a common law duty to preserve potentially relevant electronically stored information (ESI) within a party's possession, custody, or control once litigation is commenced or when litigation is "reasonably anticipated."
Parties must take reasonable steps in good faith to meet their duty to preserve ESI.
Parties and their counsel should confer early in the litigation regarding the preservation of ESI.
Parties and their counsel must develop, oversee, and document a preservation process in collaboration with the appropriate client information technology personnel.
Parties and their counsel should discuss the need to identify how custodians store their information, including document retention policies and procedures as well as the processes used to create, edit, send, receive, store, and destroy information for the custodians.
Counsel should take reasonable steps to verify information they receive about how ESI is created, modified, stored, or destroyed.
The preservation process should include a written litigation hold notice to individual custodians instructing them to take reasonable steps, act in good faith, and with a sense of urgency in preserving potentially relevant information.
Parties and their counsel may face "serious consequences" for failing to take reasonable steps to preserve ESI.
The reasonableness of a party's preservation process is judged on a case-by-case basis.
Counsel for all parties should confer about the scope and timing of discovery of ESI and may agree to limit or forgo the discovery of ESI.

I am very interested to hear comments on this development.