E-Discovery Bytes

Florida Supreme Court Juices Up E-Discovery Requirements

William Hamilton — Wed, 11 Jul 2012 11:14:14 -0600

On July 5, 2012, the Florida Supreme Court adopted seven amendments to the Florida Rules of Civil Procedure (“Fla. R. Civ. P. ___”). See In re Amendments to the Florida Rules of Civil Procedure -- Electronic Discovery, ____ So.3d ____, 2012 Fla. LEXIS 1318 (Fla. July 5, 2012). These amendments are largely modeled on the 2006 Amendments to the Federal Rules of Civil Procedure (namely, Rules 16, 26, 33, 34, 37 and 45), and are designed to encourage harmonization with federal decisions. Specifically, the seven amended rules consist of Fla. R. Civ. P. 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena).

However, while the amendments parallel the changes to Federal Rules, some contain subtle variances from their federal counterparts, that arguably operate to make the Florida rules broader and more malleable than their federal counterparts.

Some of the important provisions, and a comparison to their federal counterparts, can be summarized as follows:

1. No requirement to "meet and confer" in Florida. The “meet and confer” provisions of Fed.R.Civ.P. 26(f) are not adopted by the Florida rules. While this development might be seen as a surprising omission, Florida Rule 1.200, applicable to all Florida court divisions, provides for the a Case Management Conference to be convened by order of the Court or by a party merely serving a notice setting the conference. More importantly Rule 1.2000 specifically sets out electronic discovery matters to be discussed at the Case Management Conference, telling the parties to:

"consider the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, and stipulations regarding authenticity of documents and electronically stored information;"
"consider the need for advance rulings from the court on the admissibility of documents and electronically stored information;"
"discuss as to electronically stored information, the possibility of agreements from the parties regarding the extent to which such evidence should be preserved, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources;"

Additionally in cases deemed Complex Litigation, Florida Rule 1.201 has been amended to specifically require discussion during the Case Management Conference of "the possibility of obtaining agreements among the parties regarding the extent to which such electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources[.]"

Florida's approach thus provides flexibility to accommodate the wide variety of cases in Florida courts of general jurisdiction while providing greater guidance than found in Fed. R. Civ. P. 26(g) and Fed.R.Civ.P. 16.

2. Pre-litigation duty to preserve remains in question. Rule 1.380 adopts, verbatim, the well-known (though seldom used by courts) Fed.R.Civ.P. 37(e) safe harbor, under which sanctions cannot be awarded against a party who failed to produce ESI lost as a result of "good faith operation." The Florida Committee Note also obliquely references the duty to preserve . . . however, it does so without resolving whether there is actually a pre-litigation duty in Florida. Under federal law, a duty to preserve arises when there is "reasonable anticipation" of litigation, though the exact scope of this phrase remains to be tied down. The Florida Committee is silent as to whether any duty exists, and has left the issue to the courts to determine on a case by case basis rather than drawing any hard lines. Chances are, Florida courts will come down in line with the federal "reasonable anticipation" standard. But there is current Florida law that appears to hold that a duty to preserve arises only by statute, contract, or a request for production. Regardless of what happens on this front, however, the intentional destruction of evidence to thwart the administration of justice (either before or during litigation) does give rises to spoliation claims under Florida law.

3. ESI to be produced as "ordinarily maintained" or "reasonably usable form." Rule 1.280 further authorizes discovery of ESI, and Rule 1.350 treats ESI as a type of document whose production must be in the form ordinarily maintained, or else in a reasonable form. The important change in Rule 1.350 is that the producing party must specify before production and in the written response to the request for production what production format will be used. The requesting party can specify a format, and if the producing party objects or a format is not specified, the producing party must state the format of production it intends to use.

The great utility of this structure is that disputes as to format will surface early for judicial resolution. While the amendment does not define "reasonably usable," this will vary from case to case depending on cost and utility issues. The amended Rule 1.350 does, however, make clear that the producing party may produce as "ordinarily maintained" -- it need not take any extraordinary steps to enhance the utility of the production form by (for example) converting paper into searchable OCR text. But note that because the amended Rule does not require production in "native," only in a "reasonably usable," format, native production may or may not be the right format for the case.

4. Motions to compel inaccessible ESI permitted. Fed.R.Civ.P. 26(b)(2)(B) contains a presumptive exclusion of ESI production from inaccessible materials such as backup tapes. Amended Rule 1.280(d)(1) authorizes objections to the discovery of ESI from such inaccessible sources, requiring the objecting party to demonstrate "undue burden and cost." Even upon a showing of undue burden and cost, however, the Court may still order production on a showing of good cause, although it must consider appropriate conditions and limitations on such discovery including cost shifting.

The amended Rule 1.280(d)(2) also specifically makes proportional considerations applicable "in determining any motion involving discovery of electronically stored information." The proportionality factors courts should consider (such as the expense, the time commitment, and potential usefulness the material, and so on) are helpfully listed in Rule 1.280(d)(2) as well. These factors track Fed. R. Civ. P. 26(b)(2)(C).

5. ESI can be used to answer interrogatories. Rule 1.340 authorizes producing ESI in lieu of interrogatory answers. In doing so it spells out the form of production instead of leaving it open, as does Fed.R.Civ.P. 33.

6. Litigation holds are not mentioned. The Florida Committee Note does not mention litigation holds, but states that in determining “good faith” the court may consider any steps taken to comply with preservation obligations. Cf. W. Hamilton, Florida Moving to Adopt Federally-Inspired E-discovery Rules (Sept. 20, 2011) (arguing that “traditional Florida spoliation remedies are in play when a party intentionally destroys relevant information to thwart the judicial process – whether before or during litigation”); Michael D. Starks, Deconstructing Damages for Destruction of Evidence, 80-AUG Fla. B. J. 36 (July/August 2006) (noting that both sanctions and tort damages are available under Florida law, although "the first-party spoliation tort" has since been destroyed).

7. Inadvertent production. Effective January 2011, Florida adopted Rule 1.285 to govern the responsibilities of parties upon post-production claims of inadvertent production of privileged material. This rule is analogous to Fed.R.Civ.P. 26(b)(5)(B)'s "claw-back" provision, but broader and more comprehensive. Like the federal version, however, Florida leaves the issue of waiver to a separate proceeding.

In sum, Florida has enacted a nuanced and powerful set of e-discovery rules that provide excellent direction and authority for the management of e-discovery. The new Florida amendments are to take effect in September 2012.

"One Ring to Rule Them All?" E-Discovery Search Methodology in Patent Litigation in Light of Recent Model Orders and Case Law

Wendy Akbar — Mon, 02 Jul 2012 12:57:24 -0600

Two Model Rules from the E-discovery-Kings under the sky:
Five or eight custodians for Tech-Lords in their courts of stone;
The vast production of metadata, perhaps doomed to die;
Five or ten search terms for the Dark Lord's e-mail on his dark throne
In the Land of Litigants where the patent Trolls lie.
But is there One Ring to rule them all? One Ring to find them?
One Ring to search them all and then produce and bind them,
In the Land of Litigants where patent cases lie?

"It's a dangerous business, Frodo, going out of your door . . .You step into the Road, and if you don't keep your feet, there is no knowing where you might be swept off to.”
-- J.R.R. Tolkien, Lord of the Rings: The Fellowship of the Ring

Somewhere along the road of litigation and technology, e-discovery's All-Seeing Eye grew bigger than its stomach. Overall, only .0074% of documents requested and produced in litigation (less than 1 in 10,000) wind up on trial exhibit lists. Still less are actually used. For e-mail, hotly demanded due to the hopes of finding a smoking gun in informal and hastily-sent communications, the proportion is even lower. This trend is especially concerning in intellectual property litigation -- patent cases in particular.

To combat this trend, two sets of courts -- let's call them the Fellowship of the E-Discovery Kings -- recently set on journeys to narrow the range of the All-Seeing Eye in patent litigation, issuing similar and helpful Model Orders for e-discovery to curtail mass and unnecessary production. But whether there is really One Ring to Rule Them All when it comes to search methodologies -- one workable solution -- may not be as clear as the E-Discovery Kings propose.

"Advice is a dangerous gift, even from the wise to the wise, and all courses may run ill."
-- J.R.R. Tolkien, Lord of the Rings: The Fellowship of the Ring

First, in November 2011, the Advisory Council of the Federal Circuit promulgated a model rule for patent cases “to streamline e-discovery, particularly email production.” This Model Order's provisions (a) exclude e-mail from general production requests for ESI, requiring parties to serve requests seeking email production on specific issues; (b) limit to five, both the number of custodians whose email must be searched and the number of terms that can be used in Boolean searches of a party’s electronic correspondence; (c) preclude production of all but limited metadata absent good cause; and (d) require that if a party serves broader discovery, it would bear all reasonable costs. Courts have already adopted at least parts of the Model Order, applying it not just to "patent troll" cases but competitor-based patent litigation as well. See, e.g., DCG Sys., Inc. v. Checkpoint Techs., LLC, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011); Effectively Illuminated Pathways v. Aston Martin, No. 6:11-cv-00034 (E.D. Tex., Oct. 20, 2011).

Second, in February 2012 the Eastern District of Texas, one of the nation’s most popular patent litigation venues for plaintiffs (and the dwelling of trolls in particular), followed up its own Model Order for e-discovery in patent cases. The Texas version differs from the Federal Circuit version in that it (a) permits requesting e-mail from eight custodians; (b) doubles the permissible search terms to ten; and (c) does not contain the Federal Circuit's flexibility for additional discovery or its cost-shifting provisions for adding more custodians or search terms, but does allow parties to move to expand discovery for less than "good cause." Other provisions include requiring the parties to exchange the identities of the fifteen most significant email custodians, allowing for targeted early discovery, and providing guidance on the format of ESI production -- for example providing for production as TIFF images, governing when documents must be produced in searchable format, delineating the sources of data that must be preserved, and excusing parties from restoring back-ups and from preserving and collecting data from voicemails, PDAs and mobile phones, absent good cause.

"Short cuts make long delays."
-- J.R.R. Tolkien, Lord of the Rings: Fellowship of the Rings

Together, the two Model Orders promise to be valuable resources, brainchildren of jurists with among the most patent litigation experience in the judiciary. However, a major presumption underlying both Model Orders is that key-word search terms are the One Ring to Rule Them All: the optimal and only search methodology. Nor is there guidance on how the parties should forge those terms to make sure they return the bulk of relevant and responsive material. In truth, key-word searching may be well on the way to becoming the hard-copy paper document review in today's electronically-favored process -- outmoded and outdated. As such, propounding keyword searching as the gold standard threatens to elevate process over substance, expediency over efficacy.

For example, the results returned from a simple key-word search can be over-inclusive. The terms may be so broad that they return a googol of "hits" to wade through, many of which have nothing to do with the core issues. The collection of terms can likewise be under-inclusive, returning very few hits due to a party's internal use of code words (i.e., "Operation Rivendell" for references to a particular patent or invention). Or perhaps the propounding party simply failed to guess or the searching party's failed to volunteer, "precious" catchphrases that would uncover what a party conceals in its back e-pocket. Ralph Losey, in his popular e-Discovery Team blog, has even referred to keyword searching as similar to a child's game of Go Fish, in which both players try to guess the other side's cards while attempting to conceal their own. Finally, even obvious terms can be overlooked in simple keyword searches: in Wingnut Films v. Katja Motion Pictures Corp., No. 05-1516-RSWL, 2007 U.S. Dist. LEXIS 72953 (C.D. Cal. 2007), for example, a litigation surrounding the Lord of the Rings movies, the target of a discovery request was admonished for having failed to search its servers for the simple phrase ‘‘Lord of the Rings’,’ And this was without a single-digit limit on search terms.

"Far below the deepest delving of the dwarves, the world is gnawed by nameless things."
- J.R.R. Tolkien, Lord of the Rings: The Two Towers

Another important fallacy of keyword searching is the fact that it is increasingly not the names and words (the sole focus of keyword searching) that dictate importance. The exact terminology used in an e-mail is becoming less meaningful, with the context -- the individual(s) who sent and received the message, the timing, and its location on the system -- mattering more and more. Keyword searches alone will fail as an All-Seeing Eye: it will miss many of these features.

What, then, is the One Ring to Rule Them All that should have been utilized? And is there even one? In parallel with our Fellowship's journey and the forging of their Model Orders in the hot fires of patent litigation, another power was on the rise: predictive coding. While such computer-assisted review tools (which allow for automation of a major proportion of document review, with less need for human management) have been around for several years, it was June 2011 when one of the larger e-discovery vendors was issued a patent on the process, thrusting it into even greater prominence. Unlike keyword search terms, predictive coding teaches computers to "predict" the relevant documents based not only on key terminology, but features like dates, names, broader phrases, and other items of context. Moreover, it is estimated that by automating a significant amount of e-discovery review, predictive coding can save up to 70% of review costs.

While courts and attorneys have been slow to adopt this new technology, in the same month the Fellowship of the Eastern District of Texas forged its Model Order, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York approved the use of predictive coding in Monique Da Silva Moore, et al. v. Publicis Group SA, et al, 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012), aff'd, 2012 U.S. Dist. LEXIS 58742 (S.D.N.Y. Apr. 26, 2012). While neither party in Da Silva Moore actually objected to the use of the technology -- the decision addressed implementation rather than use -- that same week a state court judge approved the use of predictive coding over one party's objection. Global Aerospace v. Landow Aviation , No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012). Between Da Silva Moore and Global Aerospace, it is thus becoming clear that the judiciary will not hesitate to incorporate predictive coding into e-discovery where appropriate. In fact, Judge Peck noted that computer-assisted review "should be seriously considered for use in large-data-volume cases," and Judge Andrew Carter, who affirmed Da Silva Moore, acknowledged that manual review, upon which keyword searching relies, "is prone to human error and marred with inconsistencies from the various attorneys determination of whether a document is responsive."

All that is gold does not glitter,
Not all those who wander are lost;
The old that is strong does not wither,
Deep roots are not reached by the frost.
-- J.R.R. Tolkien, Lord of the Rings: The Fellowship of the Ring

But despite the limits to keyword searches and the advantages of predictive coding, the latter may still not be an All-Seeing Eye, or the One Ring to Rule Them All. There are times in which the Old Ways of keyword searching may still be the best candidate. In patent troll cases, for example, where discovery tends to be disproportionately heavy on the accused infringer's side and lighter for the troll (who usually has no product or business other than patent licensing and enforcement to speak of), focused keyword searching may be sufficient. The same is true for other smaller patent and IP litigation disputes. Even then, however, the limitations of keyword searching make it prudent to use it only in conjunction with other search tools, and not as a stand-alone methodology. (Case in point: the arsenal of tools in predictive coding includes keyword searching). But for non-patent troll cases, and for more complex, competitor-based patent and other IP disputes (for example, trade secret misappropriation), predictive coding presents a new One Ring to Rule Them All, ensuring the capture of the greatest amount of relevant and responsive materials while still conserving costs. At the very least, it presents a viable alternative to the Model Orders' presumption of keyword searching.

Unfortunately, at the time the Fellowship's Model Orders were written a year ago, predictive coding, like Strider, the Ranger of the North, had still not quite revealed itself as an Aragorn, a potential heir to the throne. If the Orders had come out today, perhaps they would have accounted for alternate methodologies. Today's Seventh Circuit E-Discovery Pilot Program, for example, is seriously considering the merits and pitfalls of various search methodologies, including predictive coding. Unfortunately, for now there remains a disconnect between the Model Orders and the growing acknowledgment of predictive coding among attorneys, their clients and the courts. Moreover, the best practices remain to be written, both for utilizing predictive coding and for choosing the best keyword searches under the Model Orders and otherwise. Thus, even if we could choose and carry One Ring to Rule Them All through the rocky terrain of patent litigation, the path on which to carry it remains unclear, much as it was for Frodo Baggins:

At last with an effort he spoke, and wondered to hear his own words, as if some other will was using his small voice. "I will take the Ring," he said, "though I do not know the way.”

Be Careful What You Ask For: Two New Cases Seek to Limit Burdensome E-Discovery Requests

Steven Hunter — Tue, 26 Jun 2012 17:56:44 -0600

Most of you know the story: either the plaintiff wants everything under the sun from the defendant as part of discovery but has no documents of its own to produce, or two big companies hit each other with unreasonable discovery requests to make the other side settle an otherwise meritorious case.

To address both opportunities for abuse, two new cases put out the message, “If you make unreasonable demands, you are going to have to pay for it.”

In Lubber, Inc. v. Optari LLC, No. 3:11-0042, 2012 WL 899631, at *1 (M.D. TN March 15, 2012), the defendants filed a motion asking the judge to either limit the relevant timeframe for e-discovery or require the plaintiff to pay for all of the defendants’ costs in connection with such discovery. Magistrate Judge Joe B. Brown agreed with the defendants that when a party has to bear a part of the cost of producing what they request, the amount of material requested drops considerably:

When a party has to contemplate whether the last possible bit of information will cost them more than it is worth, they quit asking for items of marginal relevance. As long as requesting the last bit of information costs them nothing, they have little, if any, incentive not to request it. Even if they choose never to look at it, they have put the opposing party to the cost of production. In some cases discovery becomes a tool with which to bludgeon the other side into submission.

Id. at *2. Thus, using the authority granted to him by Federal Rule of Civil Procedure 26, the magistrate ordered each side to bear half the expenses of the materials not already produced. He also ordered the plaintiff to post a $10,000 bond, prior to the defendants producing the requested documents, to protect the defendants if they were ultimately successful on the merits and entitled to costs.

Similarly, in Cannata v. Wyndham Worldwide Corporation, 2:10-cv-00068-PMP-VCF, 2012 U.S. Dist. LEXIS 20625 (D. Nev. Feb. 17, 2012) Magistrate Judge Cam Ferenbach reined in e-discovery requests that were quickly spiraling out of control by ordering cost-shifting for unreasonable requests.

The court found that as long as the final combined set of search terms and custodians or data storage sites did not exceed 40, the plaintiffs would not be required to reimburse the defendants. If, however, the combined total exceeded 40, for each extra search term or site (up to 50) the plaintiffs would have to reimburse the defendants for 5 percent of their e-discovery costs, from the date of the order through the end of discovery, up to 50 percent.

While these cases provide ammunition to bring a motion for cost-shifting for parties who are on the receiving end of overbroad document requests, they also place responsibility on corporate counsel to ensure that it narrowly tailors the discovery being served on its behalf. Otherwise, it could be you on the other side of that cost-shifting motion.

This article was originally posted in Inside Counsel.

Four Lessons Counsel can learn about Da Silva Moore and Predictive Coding

Steven Hunter — Mon, 07 May 2012 14:35:08 -0600

There’s good news in the world of electronic discovery. This February in New York, Magistrate Judge Andrew Peck and counsel for the parties in Da Silva Moore v. Publicis Groupe gave us a magnificent e-discovery lesson and pushed open the door for the utilization of advanced search technologies -- namely predictive coding, an increasingly used methodology of computer-assisted review.

The Case

The plaintiff filed a Title VII class action gender discrimination claim against defendant Publicis Groupe, alleging she and other female employees at Publicis Groupe endured discriminatory terminations, demotions and job reassignments. The plaintiff (who had very little, if any, electronically stored information (ESI) of her own to produce) demanded that Publicis Groupe produce documents (including ESI) that related to whether Publicis Groupe:

Compensated female employees less than comparably situated males through salaries, bonuses or perks.
Precluded or delayed selection and promotion of females into higher-level jobs held by male employees.
Disproportionately terminated or reassigned female employees when the company was reorganized in 2008.

Based on the records requested and the number of custodians, the parties anticipated the document pool would be around three million documents, which would have likely cost in excess of $1 million with traditional keyword search methods. Instead of going this route, the parties agreed to something bold: review the documents using what has come to be called predictive coding, a methodology of computer-assisted review. By using these methods, the parties hoped to reduce the number of manually-reviewed documents from 3 million to 20,000.

The implementation of predictive coding is not simple. Fortunately, Da Silva Moore v. Publicis Groupe provides a lengthy guide on important topics such as methods to identify the initial seed set, iterative training rounds to refine the “predictive coding to assure reasonable recall” and methods of sampling to validate levels of confidence and confidence intervals.

What the Case Means for Your Business

Although discovery in Publicis Groupe is far from over, and the parties have each filed motions challenging portions of Judge Peck’s ruling, there are already lessons to be learned for how to effectively deploy computer-assisted review to reduce the cost of electronic discovery in your cases:

1. Have an expert, knowledgeable about the review tool you intend to use. Judge Peck turned to the parties’ technical experts to explain the effect of the review protocol on the validity of the ultimate production. Surely judges less familiar with the technology could benefit from hearing from an expert in the field. Since experts tend to disagree (as they did in Publicis Groupe), it’s an absolute requirement to provide testimony about the operation and testing of the search tool chosen for the case.

2. Be willing to accept that you will not receive every potentially relevant document. Judge Peck put it best when he reminded counsel, “By the time you go to trial, even with six plaintiffs, if you have more than 100 trial exhibits it will be a miracle.” He also explained that, “The idea is not to make this perfect, it’s not going to be perfect. The idea is to make it significantly better than the alternative (human review) without nearly as much cost.”

Consequently, you have to be willing to risk that a computer will miss more documents than the recent law grad you would normally pay to sift through each page. Keep in mind that human review and key word search strings are far from perfect. Predictive coding when properly applied will likely enhance both recall and precision.

3. Cooperate with the opposition. The utilization of this technology requires engaged cooperation between the parties. Counsel must review and share the initial seed set with the opposition, and agree on statistical sampling techniques. Notwithstanding subsequent disputes, Da Silva Moore v. Publicis Groupe illustrates competent counsel working closely on e-discovery to meet the interests of both the plaintiffs and the defendant. Keep in mind that both sides agreed to utilize this advanced technology in this case. Of course, the devil is in the details, where reasonable litigants can disagree.

4. Understand the technology. Even with technology experts at the ready, counsel were still necessary to advocate for their client’s interest in balancing the cost of discovery against the completeness of the final set of documents produced. Predictive coding is not right for all cases. It is not inexpensive—counsel must expend considerable up-front fees identifying the seed set and fine tuning the technology.

Touted as a practical, cost-saving and revolutionary solution, computer-assisted review is finally getting its chance to show what it’s worth. The private bar is watching anxiously to see whether it lives up to its billing.

This article was originally published in Inside Counsel.

E-Discovery: What Increased Data Protection Means for the Global Economy

Steven Hunter — Thu, 03 Nov 2011 11:13:14 -0600

As our economy and companies become more digital and global, digital information outside the U.S becomes increasingly relevant to resolving civil disputes within our nation.

Digital information will be governed by a set of laws and values many U.S. companies and their lawyers are not familiar with, because the U.S. trades more heavily with nations outside the EU. While most industrialized (e.g., Canada, the United Kingdom and Australia) and newly industrializing (e.g., Singapore and South Africa) nations have developed laws compelling the transfer of relevant electronically stored information (ESI) in civil disputes, none have laws as liberal and far reaching as U.S. civil discovery procedures.

Many nations also impose restrictions on when ESI can be gathered, processed, used and transmitted beyond borders. Indeed, "In many non-U.S. jurisdictions, including the European Union member states, some Asian nations and a few Latin American nations, data privacy is viewed as a fundamental right and ‘personal data’ is afforded greater protections than we are accustomed in the U.S." (Gibson Dunn, "E-Discovery Basics: Cross-Border E-Discovery,” Vol. 1, No. 11). In addition, certain countries have privacy laws designed to protect information about their state-run companies (e.g., China) or even the identity of their banking clients (e.g., Switzerland).

Data protection hits the BRICS

Recently, the world's largest emerging economies, collectively known as "BRICS" (Brazil, Russia, India, China and South Africa), have become more protective of electronic data. Most U.S. litigators have some passing familiarity with the somewhat longstanding and oft-discussed EU Data Protection Directive 94/46/EC, which restricts the processing and transferring of "personal data" about EU member-state citizens. However, they are not generally familiar with the restrictions that emerging economies are placing on data transfer. As recently as July 2011, two BRICS members (Russia and China) passed laws strengthening data protection in their countries.

Every BRICS member nation has stricter data privacy laws than those of the U.S. and none officially authorizes the transfer of "private" data to the U.S. On July 25, 2011, Russia amended its data privacy laws to require written consent to transfer any "personal data" and to grant Russian officials the exclusive authority to determine which sovereignties may receive such data. China also strengthened its protection of "personal information" on July 27, 2011, when it amended the "Provisions on the Administration of Internet Information Services," preventing Internet service providers from collecting and using personal data without individual consent.

Far more important than the particular scope of any of the newly enacted privacy laws is what their enactments say about a growing international consensus on the cross-border transfer of electronic data. In addition to the BRICS and EU nations, Japan, Hong Kong, Argentina, Chile, South Korea, Columbia and Switzerland have data protection laws that are more restrictive than those in the U.S. Some countries have enacted blocking statutes that make it criminal to transfer protected information to the U.S. This, coupled with the fact that China, Russia and Mexico have strengthened their data privacy laws, suggests a trend toward more protection for ESI.

More international e-discovery disputes are likely

Global economic indicators predict that the U.S. will increase trade with emerging economies, including BRICS nations, in the next 10 years. As the U.S. relies more heavily on countries outside the EU to provide raw materials (e.g., Brazil and China), manufactured goods (e.g., China and Singapore), corporate call centers (e.g., India) and energy (e.g., Russia and Brazil), there is a greater potential that data critical to the resolution of a U.S. civil dispute will be housed in a country outside the EU. Because U.S. courts remain resolute in the conviction that they are authorized to compel production of foreign ESI, while much of the world seems to be bent on increased scrutiny of data requests, it's likely disputes over cross-border production of ESI will become more prevalent in the coming years.

As the U.S. increases trade with countries outside the EU and the United Kingdom, the variety and scope of data protection laws U.S. lawyers and their clients will have to contend to should increase substantially in the next decade. The EU Privacy Directive will not be the only data restriction companies will have to navigate and perhaps not even the most important. To best prepare for cross-border e-discovery disputes in EU and non-EU countries, companies should:

Determine whether their electronic data is stored in a jurisdiction that restricts their processing or transfer

Consult or retain counsel in the jurisdiction where their data or the data they would like to obtain is stored for advice on how the data should be handled

This article was originally published in Inside Counsel.

The Dangers of Trusting Technology to Keep Privileged Documents From Opposing Counsel

Sepideh Esmaili Smith — Fri, 21 Oct 2011 10:54:00 -0600

It's every litigator's fear - inadvertent disclosure of privileged documents leading to a court finding of waiver of privilege. A recent Illinois case shows just how easy it is to waive the privilege if you do not stay on top of the technological aspects of your production, even after conducting a complete review and indentifying privileged documents.

In Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011), the court was faced with a defense counsel who "thought" that merely marking documents as privileged in an electronic database would keep them safe from production. Unfortunately for counsel, every document that had been identified as privileged was produced to opposing counsel. To make matters worse, defense counsel did not learn of the accidental disclosure for nearly nine months of discovery. He then waited an additional four months to produce a privilege log to opposing counsel. Not surprisingly, the court held that while some of documents were privileged when originally created, defense counsel had waived privilege by his actions, or more precisely his inaction.

Here are some key points from the case all litigators should take to heart when engaging in document production:

1. Attorneys must take precautions to protect electronic disclosure of privileged documents. They should never presume that merely marking documents as privileged in an electronic database will prevent their production.

The court determined that the defendants' procedures for privilege review were "completely ineffective." Although counsel "thought" marking a document as privileged in the electronic database would automatically lead to it being withheld from opposing counsel, counsel never actually checked the production to assure that this was the case. The court also noted that counsel hardly could have taken adequate safeguards against production where every single privileged document, not merely one or two, had been produced.

2. Attorneys should produce privilege logs close to the time when a production is made. It will act as a check on whether documents have inadvertently been produced and alert opposing counsel to a document's privileged status.

The Thorncreek court weighed heavily the defendants' nearly nine-months' ignorance regarding the disclosure of privileged documents. Defense counsel failed to check in at all, on the electronic database of documents to see what documents were present and what documents opposing counsel was viewing from the production.

Defense counsel was also faulted for failing to timely produce a privilege log. Such a log would have alerted both sets of counsel to a privileged document being accidentally disclosed. Instead, defense counsel waited more than a year after production began, and a whole four months after learning of the accidental disclosure during a deposition, to provide such a log.

3. Where inadvertent production of privileged documents has occurred, counsel must immediately take steps to rectify the error in order to protect and maintain privilege.

The court came down on defense counsel for not knowing of the inadvertent production of privileged documents for months, and then failing to act with diligence after finding out.

It may be basic, but the lesson is that there must be additional checks and balances other than simply checking off documents as privileged in an electronic database, ten steps before they are actually produced. While this hardly means that an attorney must re-check every single document marked for production or privilege a second time, there could be, for example, a search of a sample of privileged documents to ensure they are privileged; and a sample of non-privileged documents to make sure nothing privileged has snuck into the pile. Another method is to run a search for a few attorney names, and verify that the resulting hits are marked privileged.

The bottom line is that counsel should always check a production for privileged documents, monitor documents in an electronic database, and act immediately to assert privilege when an accidental production is found.

Dr. Seuss, Cheese and Social Media, Part III: Ethical Issues Involving Attorneys and Their Judges

Wendy Akbar — Tue, 18 Oct 2011 11:19:50 -0600

"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers! Enough is enough!"

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court.

Since all good things come in threes, we now launch into our final Part Three: corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

1. Assisting in Violations of Judicial Rules of Conduct. Attorneys face ethical quagmires when corresponding with judges on social media, since their correspondences with the judge can be found to "assist" the judge in conduct that violates judicial rules:

ABA MPC 8.4(f): Attorneys cannot knowingly assist a judge in conduct that is a violation of applicable rules of judicial conduct or other law.

Does a judicial presence on Facebook, Twitter or other social media, violate rules of judicial conduct? Generally, the answer appears to be no:

"Providing that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network . . . [but] should exercise an appropriate degree of discretion in how he/she uses [the network, and must] stay abreast of the [privacy] features[.]"

NY Adv. Comm on Judicial Ethics, Op. 08-176. Even Supreme Court Justice Stephen Breyer has confessed to being an active user of Twitter and Facebook when he testified on Capitol Hill on April 14, 2011. But he turned down numerous requests from attorneys (and others) who wish to follow and friend him, preferring to stick with family and close friends.

The problem arises when considering who a judge can -- and cannot -- friend. Can a judge friend an attorney who might appear before him, and vice versa? It depends on who you ask. In Kentucky, New York, and South Carolina, the "designation of a 'friend' on a social networking site does not, in and of itself, indicate the degree of intensity of a judge's relationship with the 'friend,'" so the judge can friend who he or she wishes without any appearance of impropriety. On the other side of the coin is Florida, Fla. Sup. Ct. Judicial Ethics Adv, Comm. Op. 2009-20:

The issue . . . is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a 'friend' on the social networking site, conveys the impression that the lawyer is in a position to influence the judge . . . identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The risk of impropriety -- or even the appearance of it -- is very real. Ex parte communication between judges and attorneys can result in a mistrial. Even a simple Facebook 'Poke' could be problematic.

As one example, North Carolina Judge B. Carlton Terry, Jr. friended defense counsel in a case and discussed the case with him on Facebook, including the weight to be given testimony that one spouse had been unfaithful. "How do I prove a negative?" the defense attorney asked. The judge provided advice and the attorney called him a "wise judge". The plaintiff's lawyer found out and moved both for a new trial and the judge's disqualification. The judge removed himself from the case and the plaintiff got a new trial. The judge also earned a reprimand from the state Judicial Standards Commission. The attorney, who assisted the judge in the reprimanded conduct, could probably have been sanctioned for violation of Rule 8.4(f) as well.

As a result of this incident and others, judges have begun to use caution when engaged in social media. Most (a) tend to friend everyone who asks, in order to avoid the appearance of impropriety, (b) not friend attorneys who may appear before them; or (c) only friend family or close friends.

2. Questionable Professional Conduct (and Insulting Judges). Even when judges themselves are not online, comments about them in cyberspace can lead to ethical violations. Much like the "catch-all" Federal Rule of Evidence 807 residual exception to hearsay, the ABA rules also capture questionable conduct that, while not fitting neatly into a specific rule, still "smells funny":

ABA Model Rule 8.4(d): Attorney cannot engage in professional conduct prejudicial to the administration of justice.

This rule can be used by itself, or in conjunction with pretty much any other rule for some added bite. Say, for example, that as the lawyer for Cheese, Inc., who is suing a bunch of cheese manufacturers, pizza parlors and restaurants for making and using cheese that infringes a particularly cheesy patent of yours, you have become frustrated with the judge's attitude. He is constantly overruling your objections and sustaining the other side's. Clearly, the judge is lactose intolerant and has never partaken in the deliciousness that is fine cheese. Needing an outlet, you tweet to your 343 followers that the judge is "an incompetent cheese-a-phobe whose rulings stink more than a Roquefort left to rot in the sun." Hey, the First Amendment, right? Wrong:

ABA Model Rule 8.2: Attorney cannot make false or reckless statements regarding the qualifications or integrity of a judge.

Attorneys in Broward County Court, Florida learned that just this type of conduct can be a violation of both ABA MPC rules. Specifically, local attorneys there frequent JAABlog, a local but private forum. One attorney, Sean Con~~nery~~way, logged onto the site and questioned the procedure of a certain judge, calling her by name, and referring to her as an "evil, unfair witch" and "seemingly mentally ill." Conway also declared her "clearly unfit for her position and knows not what it means to be a neutral arbiter." While most of this could easily be classified as hyperbole, the Florida bar found him guilty of FIVE ethics violations, including the Florida version of these two Rules. While Double-O Conway argued that he was simply exercising his First Amendment right, this argument netted him a public reprimand and $1,250 fine. See Florida Bar SC08-326 (Fla Jan 22, 2009).

By contrast, another example took place during a fee dispute following a routine employment lawsuit against UPS. UPS and its attorneys at Paul Hastings, submitted as evidence several of the plaintiff-attorney's posts on the private California Employment Lawyers' Association (CELA) listserv concerning the trial of his client, a UPS employee. These included a post in which the attorney criticized the district court judge in the trial as "defense-biased from the [MSJ] hearing forward," and another in which he stated that:

Amazingly, my colleague and I caught her [the judge] signaling to defense counsel to try to elicit objections during our examinations. Perhaps the judge did not like me or my personality, but I have never had an experience like this in 40 years of lawyering.

CELA requested that Paul Hastings be referred to the state bar ethical committee for submitting stolen evidence, since the listserv was a closed forum and the firm knew that CELA was asserting privilege. The court found it "inappropriate" for Paul Hastings to publicly disclose the material and held that doing so could pose a "security risk" to the judge at issue. While silent on potential rule-based violations, under these facts ethical violations of Rules 8.2 and 8.4(d) could be possible for the plaintiff-attorney, and perhaps a Rule 8.4(d) violation for the law firm.

* * * *

In sum, as noted in Parts I, II and III of this article, the potential ethical violations faced by attorneys (and judges!) as a result of improper use of social media, are many. As social media grows increasingly common and complex, the issues will only increase.

Nor are attorneys, their clients, and judges the only ones in the legal system affected. Even jurors face sanctions over improper use of social media. For example, juror Hadley Jons was recently punished for posting a "Guilty" verdict on Facebook before the verdict was even announced in court. The posting came to light only because the defense attorney’s son, who was working in his mother’s law office, checked the jurors against Facebook. The judge removed the juror the following day, and judge ordered her to write a five-page essay about the constitutional right to a fair trial.

E-Discovery: Cutting Costs with Predictive Coding

Steven Hunter — Wed, 12 Oct 2011 09:47:23 -0600

The cost of e-discovery is forcing good companies to settle bad cases—but not for long. If your litigation budget had ears, “predictive coding” would be music to them.

How it works

Predictive coding is a “technology-assisted classifying process” in which “a human reviewer codes documents the computer identifies (as responsive)—a tiny fraction of the entire collection. Then, using the results of the human review, the computer codes the remaining documents in the collection for responsiveness.” There are four phases to the predictive-coding process:

Phase 1: A senior lawyer chooses the responsive electronic documents based on his or her review of a sample of the electronic documents

Phase 2: Phase 1 is repeated with senior lawyers until the computer is sufficiently “trained” to apply their conclusions across a wide set of documents (or the whole document set)

Phase 3: The predictive coding software is deployed against the entire document set and will distinguish between relevant and non-relevant documents, or prioritize the documents on a scale of one to 100 (depending on the software you select)

Phase 4: The documents that are machine-coded as responsive are subjected to a final human quality review and produced to the opponent

How it saves your company money

Using predictive coding software replaces the once overcrowded rooms of contract attorneys who pored over millions of records and billed by the hour. Rather than hiring 15 $80-per-hour reviewers working 40 hours per week for three weeks for a total review cost of $144,000, your company could conduct the same review with three senior lawyers at $600 per hour for eight hours at a total labor cost of $9,600, saving $134,400 without the cost of using the software. Furthermore, the empirical data on predictive coding confirms “the levels of performance achieved by ... technology-assisted processes exceed those that would have been achieved by ... the law students and lawyers employed by professional document-review companies — had they conducted a manual review of the entire document collection.”

So, why isn’t anyone using predictive coding yet?

No one wants to be the guinea pig. To date, no court has evaluated (or endorsed) the use of predictive coding.

However, a forceful judicial “endorsement” has been asserted by Andrew Peck, U.S. Magistrate Judge for the Southern District of New York:

I know what you’re waiting for: You think one day a judge will deliver an opinion or a judgment which says in terms that a particular kind of technology is approved by the court. ... Perhaps you have a mental picture of the occasion: “It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure. ...” Perhaps the judge will go on to praise the car which he or she drove to work, offer an endorsement of the floor polish used in the court, and give a quick puff, as it were, for his own favorite brand of cigarette. IT’S NOT GOING TO HAPPEN!

Take advantage of predictive coding now

Given that both counsel and clients risk hefty sanctions (including default or dismissal) if the predictive coding software fails to “predict” the relevance of an important document, it is wise to be cautious. Litigators, however, can and should take advantage of the cost-saving benefits of predictive coding now by involving the court and the opponent in the predictive-coding process.

1. Learn about predictive coding technology and select a vendor;

2. Seek the opponent’s agreement to use the technology after fully disclosing the risks (in writing);

3. If the opponent agrees, identify to the opponent the documents you have identified as relevant that will guide the software;

4. If the opposition does not agree, run a demonstration on a sample set to prove to the opposition the validity of the software and method;

5. If the opposition still does not agree, move the court to compel your opponent to pay for the cost of a manual review.

Predictive coding is far too enticing a cost-saving mechanism to remain in the shadows for very long. Use the above approach to introduce predictive coding into your cases, and your outside counsel will be able to get back to spending your litigation budget to win bad cases instead of settling them.

This article was originally published in Inside Counsel.

Florida Moving to Adopt Federally-Inspired E-Discovery Rules

William Hamilton — Tue, 20 Sep 2011 11:33:57 -0600

Florida is hurdling toward the adoption of new civil procedure rules that address the discovery of electronically stored information (ESI) in the Florida state courts.

The Florida Civil Rules Electronic Discovery Sub-Committee, initially under the leadership of Lawrence Kolin and now Kevin Johnson, recommended rule changes addressing e-discovery after years of study. The full Rules Committee voted at The Bar’s Annual Meeting in June to accept the Sub-Committee's proposed rules with minor editorial changes sent the e-discovery rules to the Supreme Court on an expedited “out-of-cycle” track, which would avoid an additional two-year wait for the 2013 regular cycle rules changes. On July 29, 2011, The Bar’s Board of Governor’s accepted the recommendations, including expedited review and voted to have The Bar’s legal counsel submit the proposed rules to the Supreme Court. After publication in The Bar News and the opportunity for comment, the Supreme Court will be able to consider the rules as early as this fall.

For the most part, the recommended rule changes track the federal 2006 rule changes with a few exceptions. The Sub-Committee’s wisdom in tracking the federal rules is important for a number of reasons.

First, the adoption of parallel e-discovery rules will provide Florida state courts with the abundant guidance found in federal case law. While the decisions of the federal courts interpreting the federal rules are not binding on Florida judges, federal decisions will have a dramatic persuasive impact on Florida cases. Practitioners will be able to refer to federal court case and cases in states where rules patterned on federal law have been enacted, which avoids re-inventing a substantial body of important case law.

Second, national corporations and businesses litigating disputes in Florida will now find consistency between federal and state court decision.

Third, the adoption of Florida e-discovery rules that closely track the federal rules will minimize forum shopping between federal and state courts, at least with respect to handling ESI. Soon Florida and federal courts will be aligned regarding, among other things, the principle of proportionality that has become critically important in managing electronic discovery. Litigants will no longer need to be concerned that the Florida concept of “undue burden” under Fla. R. Civ. P. 1.280(c) is less encompassing than the proportionality requirements of Fed. R. Civ. P. 26(b)(2)(B) and (C). The new Florida e-discovery rules will give Florida judges a clear directive to effectively manage the discovery of voluminous ESI that threatens to eclipse the value of any case whether or not the digital data is "reasonably accessible." Florida judges have principally resolved discovery objections on the basis of relevance: with few exceptions, if the information is “relevant” it must be produced if requested. Now, however, under the soon to be adopted Florida e- discovery rules, the sheer volume of relevant digital data relative to the “value” of a case may be a sufficient foundation to invoke e-discovery management tools such as staging, sampling and other methods that control the volume of digital data subject to preservation, search and review.

The proposed Florida e-discovery rules differ from the Federal rules in one important respect. The new proposed Florida rules will not require an early Federal Rule 26(f) type “meet and confer” conference regarding electronic discovery. Florida courts of general jurisdiction handle all sorts of matters –family, probate, landlord tenant, foreclosure—and the Sub-Committee reasoned that a mandatory Rule 26(f) conference may not be productive in all cases and could create a burden in low value cases or where routine procedures are already in place. However, what burden is it to place a call to the opposition and ask if electronic discovery will be part of the case? Digital data will play some role in almost all cases—even the smallest—and a preliminary dialogue is the best method to avoid disputes, if not disasters, down the road. Fortunately, this “omission” is not as serious as it may seem. Circuit courts in three of Florida’s major urban areas have established “business courts” for more significant commercial cases. These courts in Miami, Orlando and Tampa have local rules already requiring early judicial conferences and meetings with counsel, and often clients, that can address e-discovery issues. See e.g. http://www.fljud13.org/JudicialDirectory/RichardANielsen/ProceduresPreferences.aspx.

Additionally, in cases deemed "complex", Florida has a special rule that mandates Rule 26(f) type conferences. Fla. R.Civ. P. 1.201. And finally the Sub-Committee noted that any party in any case can make a motion and request a preliminary e-discovery conference with the Court and the opposition. In sum, the Sub-Committee wisely decided to recommend the important rule changes where agreement could be reached rather than derailing the entire process due a lack support from all Bar segments. The new Florida e-discovery rules are a significant advance that will catapult Florida in to the ranks of those states with progressive e-discovery rules.

Beyond “meet and confer” differences, litigators should also be forewarned of claims of significant differences regarding preservation in Florida and Federal courts. The idea that preservation is not mandated in Florida when litigation is reasonably anticipated derives from some Florida decisions that broadly recite, mostly in dicta, that preservation is only required when mandated by contract, statute, or a request for production. In this regard, Florida e-discovery preservation jurisprudence appears to lag behind Federal courts and other state courts. See e.g. Gayer v. Rind Line Construction & Electric, Inc., 970 So.2d, 424,426 (Fla. 4th DCA 2007); Royal Sunalliance v. Lauderdale Marine Center, 877 So.2nd 843 (Fla. 4th DCA 2004). However, reliance on this general and fact specific precedent to conclude that a duty to preserve only arises in Florida from a contract, statute (e.g. medical records), or a request for production is ill-advised. In our recently published LexisNexis® Practice Guide Florida Electronic Discovery and Evidence, my co-author, former Florida state court judge Ralph Artigliere, and I argue this view is both mistaken and dangerous. Although Florida law has been slow to address the pre-litigation triggers requiring the preservation of electronically stored information, common law preservation duties are not absent in Florida. Traditional Florida spoliation remedies are in play when a party intentionally destroys relevant information to thwart the judicial process--whether before or during litigation. Further, we believe that as Florida case law slowly develops it will adopt what the Federal case law has established: the fragile and ephemeral name of digital data and the auto-deletion features of computer devices and computer networks require affirmative efforts to halt such deletion when litigation is reasonable anticipated. Just as Florida has come into alignment with Federal rules relating to proportionality, Florida courts will also align themselves with federal precedent on preservation.

In short: any litigator in the Sunshine State advising clients that the deletion of relevant electronically stored need not be suspended when litigation is reasonably anticipated, is inviting the proverbial e-discovery train wreck.

Nine Points Impacting E-Discovery Costs

Steven Hunter — Thu, 08 Sep 2011 17:42:27 -0600

There was a time when state court civil disputes did not involve the risk of astronomical e-discovery costs. That time has passed. Just as e-discovery in federal courts reaches some semblance of uniformity, the fifty (very independent) states have begun to realize that discovery in the Digital Age will necessarily involve "staggering" amounts of electronically stored information (ESI).

Since 2003, 30 states have adopted rules or enacted statutes that specifically address ESI management, preservation and production in civil disputes. New York and seven other states have developed their own methods for managing e-discovery, while California (and 21 states like it) generally follows the Federal Rules of Civil Procedure. The remaining 20 states (e.g., Illinois) have yet to adopt any e-discovery rules, but most recognize "the increasing reliance on computer technology," and some explicitly (by judicial interpretation of existing discovery rules) obligate civil litigants to produce ESI as part of their state's existing discovery obligations.

Although all 50 states have somewhat different approaches to managing e-discovery, there are a few trends in how states treat e-discovery that impact costs.

Some of the important trends include:

1. Discretionary Cost-Shifting. While the federal rules are silent on who should bear the cost of retrieving "inaccessible data," certain states (e.g., Texas) require that a judge order a party requesting inaccessible data to incur the cost of producing it. Other states (like California and Mississippi) give the judge the option to shift the cost of producing "inaccessible" ESI. Given that the retrieval and production of "inaccessible data" can easily cost hundreds of thousands of dollars, the discretion (or obligation) to shift those costs can have a significant impact on the litigation budget.

2. The Meet and Confer. Some states (like New York and Delaware) have made the "meet and confer" the cornerstone of their methodology for managing e-discovery, while other states have abandoned the requirement altogether. Do not miss this opportunity to seize control of the e-discovery process. Skipping an early “meet and confer” may appear to save money and avoid the aggravation of dealing with the "unreasonable" opposition; however, more progressive literature on e-discovery suggests that the "meet and confer" actually saves costs in the long-run and helps insulate the parties against the risk of e-discovery "do-overs" and even more severe sanctions.

3. Safe Harbor. Federal Rule of Civil Procedure 37(e) forbids a court from ordering sanctions against a party who has destroyed potentially relevant ESI "as a result of the routine, good-faith operation of an electronic information system." Although practitioners debate how "safe" the harbor really is in federal courts, several states have eliminated the "safe harbor" altogether. This means that litigation holds in state courts should be implemented as soon as litigation is reasonably anticipated.

4. Sanctions. It also is important to know what activities (or failure to act) will prompt the court in your jurisdiction to levy sanctions. Counsel should not assume (especially in states that don't follow the federal rules) that state courts will levy sanctions in the same manner and for the same conduct as federal courts. This analysis will inform your discovery strategy and help insulate against the risk of state court sanctions.

Although there is no substitute for becoming familiar with each state's e-discovery rules before formulating an e-discovery plan, there are a few fundamental practices that will help manage e-discovery costs (and help avoid sanctions) regardless of your jurisdiction. Savvy litigants should:

1. Budget for e-discovery costs in every case (based on the rules of the jurisdiction where the dispute is venued) so that you (and your outside counsel) are forced to address how the state's approach to e-discovery might affect your case.

2. Discuss e-discovery issues and attempt reach agreement about the parameters of ESI preservation and production as early in the case as practical regardless of whether your jurisdiction requires a “meet and confer.” If the state court rules do not require a “meet and confer” and the opposition refuses, ask the court to order the parties to meet and discuss e-discovery.

3. Know the most likely circumstances where the jurisdiction has awarded sanctions in e-discovery cases.

4. Oversee the data collection process in your cases, but try to avoid having your internal IT department collect the data.

5. Document the steps taken to prevent the destruction of potentially relevant ESI
In additional to local counsel, good resources to check on current state court discovery rules and decisions are maintained by Kroll Ontrack.

This article was originally published by Steven Hunter, a Quarles & Brady partner, in Inside Counsel

Dr. Seuss, Cheese and Social Media, Part II: Ethical Pitfalls, Pretexting and Duties of Candor

Wendy Akbar — Mon, 25 Jul 2011 14:37:18 -0600

Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media. These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.

1. False and Misleading Behavior (Pretexting): The ABA Model Rules of Professional Conduct ("ABA MPC") for lawyers are full of prohibitions against attorneys engaging in various types of false and misleading statements. For example:

ABA MPC Rule 4.1: Attorneys cannot make false, material statements to a third party.
ABA MPC Rule 4.2 -- Attorneys cannot communicate with a represented person.
ABA MPC Rule 4.3: Attorneys cannot misrepresent their role or disinterestedness to an unrepresented party, and must correct any misunderstanding as to these issues.
ABA MPC Rule 5.3: Attorneys are responsible for the conduct of a non-lawyer assistant and must make reasonable efforts to ensure the person's conduct is compatible with the lawyer's professional obligations.
ABA MPC Rule 8.4(c): Attorneys cannot engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or encouragement of such.

In today's cyberworld, every single one of these rules can be evoked when an attorney engages in pretexting, which raises ethical concerns relating to contacting opposing parties and gathering information without full disclosure or consent.

What is pretexting? The long, boring answer: obtaining personal information under false pretenses, usually by concealing one's identity or intent. The short, more interesting answer: the Hewlett-Packard (HP) scandal of 2006. HP spied on its own directors' personal phone records to determine who was leaking company information, by having private investigators call up phone companies, pretending to be the directors who were seeking their "own" records. Criminal charges were brought against the HP Chairman of the Board, Patricia Dunn, the alleged brains behind the investigation. The charges were eventually dropped "in the interests of justice," but not before Dunn was pressured to step down as Chairman.

While the HP scandal did not concern social media, it brought the growing practice of pretexting to the forefront -- a problem that has been magnified in the online context. People, after all, are easier to deceive in a virtual world. It would be simple for Attorney Sam to create a false Facebook page in order to get our Witness to accept his friend invitation. The end result: the incriminating impeachment photo.

Did Attorney Sam act improperly? Most likely. Bar associations and courts are bearing down heavily on pretexting lawyers. While it is fine if the social media page is public, like a blog or an open Facebook page, see, e.g., NY State Bar Ass'n Comm. on Prof. Ethics, Op. 943 (Sep. 10, 2010), if the attorney must interact with the person to gain access (i.e., "friending"), the pretexting would likely violate one or more ABA rules.

"But wait," Attorney Sam might say. "I may not have told him who I was, but Witness accepts friend invitations from everyone, even people he doesn't know!" Too bad. The pretexting still involved "dishonesty, fraud, deceit or misrepresentation." See, e.g., Philadelphia Bar Ass'n Prof. Guidance Comm. Op. 2009-02. Whether Witness might still have accepted Attorney Sam's invitation if he knew of his identity, is irrelevant. Id. Similarly, at least in Philadelphia, even where the attorney is honest about who he is when making a friend request, an attorney must make full disclosure of his motive, otherwise the request is deceitful since the attorney is concealing a highly material fact -- that he is trying to obtain impeaching testimony. Id. Luckily for Attorney Sam, New York has come out a different way. There, if an attorney uses his real name and profile without disclosing the reason, no ethical violation may be found if the person being friended is an unrepresented party. See NYC Comm. On Prof. and Jud. Ethics 2010-2 (Sep. 2010).

"Wait!" Attorney Sam says again, eager to remove all doubt. "Maybe it wasn't me who made the friend request. It was my private investigator, who also doubles as my paralegal!" But if the paralegal or investigator engages in this conduct at the attorney's request, and possibly even without his express knowledge, the attorney is still on the hook -- for example, under Rules 5.3 and 8.4(c). There are, however, limited exceptions. Remember, as set forth in Part I, that this case by Cheese, Inc. is a patent infringement case, and might have overtones of trade secret issues. Some bar association ethics committees allow for pretexting when investigating violations of civil or intellectual property rights. New York is one example. See, e.g., NY Cty Lawyers Ass'n Comm. on Prof. Ethics No. 737. Similarly, in Alabama, "[d]uring pre-litigation investigation of suspected infringers of intellectual property rights, a lawyer may employ private investigators to pose as customers under the pretext of seeking services of the suspected infringers on the same basis or in the same manner as a member of the general public." Alabama State Bar Office of the Gen. Counsel Op. 2007-05. This ruling has been found applicable to social media.

In short, friending witnesses or anyone else involved in the case is risky. The law is still not quite settled. Until it is, better safe than sorry.

2. Duty of Candor. In addition to a duty not to make false statements to third parties, a lawyer also has a duty of candor to the court:

ABA MPC Rule 3.3(a): A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . .

While social media does not necessarily cause an attorney to violate this duty, it does make it easier to be caught with one hand in the cheese cabinet. A prime example is an attorney who asked Judge Susan Criss of Galveston, Texas state court, for a continuance because of the death of her father. Judge Criss peeked at the lawyer's public Facebook page during the week of the alleged funeral, and found that she had posted a string of status updates detailing her week of drinking and partying.

Attorneys might rail against the unfairness of judicial intrusions upon their Facebook pages. But at least one court has held that attorneys likely have no "reasonable expectation of privacy" on social media despite whatever privacy settings they employ, since Facebook and MySpace do not guarantee "complete privacy." Romano v. Steelcase, 907 N.Y.S.2d 650, 655 (2010). This was proven again just this past week on July 20, 2011, when police found an escaped drug offender lunching with his Oklahoma lawyer a day after he escaped from jail -- in part because they discovered that the lawyer had posted a Facebook photo of the two of them together.

In short, lawyers who use social media -- whether personally or for investigative purposes -- should therefore be careful: sometimes it is not possible to both have your green eggs and ham, and eat them too.

* * *

Coming soon, the final installment of our "Dr. Seuss, Cheese, and Social Media" trilogy, on what happens when attorneys discuss or contact judges on social media.

Ascending to the Cloud Creates Negligible E-discovery Risk

Steven Hunter — Thu, 14 Jul 2011 11:28:01 -0600

Cloud computing platforms (a set of pooled computing resources that are powered by software and delivered over the Web) have been generating quite a bit of press in the last year. Indeed, just recently computing giant Microsoft launched its Microsoft 365 cloud computing platform, designed to rival Google’s "mega-cloud" platform, which launched in May 2010. Since the release of the first commercial cloud computing platform by Amazon in 2006, cost-conscious companies have been racing to evaluate the pros and cons of moving their computing operations to “the cloud.” According to the Booz, Allen, Hamilton technology consulting firm, “Cloud computing may yield:

Life cycle costs that are 65 percent lower than current architectures

Benefit-cost ratios ranging from 5.7 to nearly 25

Payback on investments in three to four years."

Notably absent from that cost-benefit analysis, however, is the effect cloud computing may have on the costs and risks associated with conducting electronic discovery. Those engaged in such activities may well ask the question, “Will the savings companies expect from moving their data to the cloud be absorbed by the additional costs/risks created by conducting e-discovery in the cloud?”

The short answer is no. Although there are risks associated with conducting e-discovery from the cloud, they are remote, manageable and eclipsed by the savings companies should expect from cloud computing. Some of the riskiest aspects of conducting e-discovery in the cloud are:

The loss/alteration of data and associated metadata

The potential violation of international data privacy laws by illegally disclosing data in the jurisdiction in which the cloud is located

The unintentional waiver of the attorney-client privilege by co-mingling data or disclosing attorney client communications to third parties

The failure to properly and timely implement and monitor litigation holds

Fortunately, companies can easily manage the risk of altering metadata and the risk of violating international data privacy laws by insisting the service agreement with their cloud provider:

State that none of the company’s data may be stored outside the United States

Provide a detailed mechanism for how the cloud will implement litigation holds

Address how metadata will be created and stored in the cloud environment

Similarly, companies can minimize the risk of waiving the attorney-client privilege by including “no waiver” language in their cloud computing service agreements and establishing security protocols to prevent the inadvertent disclosure of communications to the administrators of the cloud or any other third party.

When the technology has improved and cloud computing administrators have developed expertise at responding to e-discovery requests, companies might even enjoy e-discovery cost savings by moving their data to the cloud. “If the cloud fulfills its promise and supplants the hodgepodge of local hard drives, LAN servers, and removable storage that now house our data, the cloud will emerge as the simpler, ‘one-stop shop’ for preservation and search in electronic discovery,” Craig Ball, an expert on trends in e-discovery, predicts.

In fact, that technology already has been developed and is in use for other applications. In late 2010, Facebook (currently the largest functioning equivalent to a cloud computing environment) added to its regular user interface a one-button preservation tool for capturing user content. Now, by simply clicking the “Download Your Information” button (and providing the appropriate password), Facebook users can request a neatly packaged zip file containing all of their videos, messages, wall posts, friend lists and other profile content — it doesn’t require a professional background in information systems to comprehend how similar technology can be applied to collect corporate data stored in the cloud.

Furthermore, cloud administrators saddled with the responsibility of responding to many subpoenas or production requests on behalf of myriad clients will, in time, develop an expertise in culling, processing and producing data. In turn, cloud users will undoubtedly benefit from advances in technology as well as the experience that cloud administrators have gained in responding to e-discovery requests.

The hope is that these efficiencies will translate directly to the end-user. At the end of the day, in-house counsel should be confident that (if managed properly) the benefit of moving a company’s data to the cloud outweighs the risks and costs associated with producing data from the cloud as part of a lawsuit.

* * *

This article was originally published by Steven Hunter, a Quarles & Brady partner, in Inside Counsel.

Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients

Wendy Akbar — Thu, 30 Jun 2011 12:36:46 -0600

Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client. Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

1. Breaches of Confidentiality. ABA MPC 1.6(a) has two prongs:

Lawyers cannot reveal information "relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted" under several narrow exceptions.

Lawyers must competently safeguard their client's information against unauthorized or inadvertent disclosure by the lawyer.

Let’s pretend you are the CEO of Cheese, Inc. and your company was just yesterday granted a patent on a method of creating cheese wheels that are fat-free and even tastier than "the real thing." You have hired a young, up-and-coming patent litigation partner at Dewey, Cheatham & Howe LLC to help you amass a case against a number of pizza companies, cheese manufacturers, and restaurants who make or use cheese wheels that infringe your patent. You’ve friended your DC&H attorney on Facebook and LinkedIn because . . . well, because the more connections, the better, right? To your horror, you see your attorney’s status update gleefully stating that he is "About to take on the cheese industry -- stay tuned!"

If that’s not enough, one of your attorney’s 700 “friends” on Facebook happens to be married to in-house counsel for a major cheese manufacturer. That savvy attorney takes a look at your friendly DC&H partner's page to see where he's "checked in" over the last week or so, and sees that he went to dinner a few blocks away from Cheese, Inc. He also sees that you, the CEO of Cheese, Inc., are on this attorney's "friend" list. He puts two and two together. The next day, his company files a declaratory judgment lawsuit against Cheese, Inc., way out in the inconvenient Western District of Kalamazoo where he is based, asking for a declaration of noninfringement. You have now lost the home court advantage, among other things.

There are many other ways an attorney can breach confidentiality on social media, even if it doesn’t result in a situation as extreme as this:

Even innocuous status updates like, "I'm working on a motion to dismiss in ABC case, arguing XYZ" are risky, since someone might be able to tell from context what case it is.

If an attorney posts a status update or tweet from a smartphone, i.e., “just met a brand new client with a lucrative lawsuit”, geo-tagging can show where he was and allows one to guess the client's identity from the location.

An attorney may inadvertently reveal confidential information, such as a confidential relationship, by allowing a site like LinkedIn to import Outlook contacts, or allowing others to view his "friend" list, which could include clients.

Linking to other websites on Facebook (such as a client’s) could disclose a confidential relationship.

Some sites require granting the site developer access to all information placed on it, which could destroy claims of privilege/confidentiality regarding social networking communications.

As one real life example, in Illinois Supreme Court M.R. 23974 (Ill. May 18, 2010), an Illinois attorney received a 60-day suspension and was fired from his public defender job of 19 years, for making veiled references on a Facebook page to his client's identification and confidential case details. His posts included: "This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he's no snitch." While vague, the post was still enough to reveal client confidences. However, the attorney admittedly referred to the judge in the case as "Judge Clueless" and "a . . . hole,” which certainly did not help his situation.

2. Conflicts of Interest and Unintended Relationships. Nor is breach of confidentiality the only potential difficulty. ABA MPC 1.7 precludes a lawyer from representing a client where such representation is "materially limited" by a "personal interest of the lawyer." And ABA MPC 1.8 states that even where no attorney-client relationship is created, “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation" or "represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter" if it could be harmful to that prospective client.

What does this mean for social media? As a client, your attorney could violate either rule as to your interests simply through routine internet communiqués. Let’s say you, our CEO of Cheese, Inc., have that DC&H attorney with a Facebook page that you are privy to. His News Feed contains a post from a friend who is a taste tester for Food & Wine magazine, expressing fear that she may be embroiled in a lawsuit involving a company she consults with. You see that your attorney has provided a few tips on staying out of trouble. You also recognize the friend as a well-known cheese expert who works closely with one of the competitors you are about to sue! You Google your attorney’s name and find that soon after this communication, your attorney wrote a blog post about how the food industry is becoming increasingly litigious and what can be done by "the little guy" to protect oneself against such lawsuits by the Big Cheese.

Unlike other methods of communication, social networking often consists of casual interactions that cannot be distinguished from more formal relationships. Simply by helping out a friend or expressing a public opinion on a public issue, your attorney may very well have created at least one conflict of interest implicating ABA MPC 1.7 and 1.8. And how?

Providing casual advice can create an attorney-client relationship or even "prospective" relationship that does not rise to that level, which conflicts with an existing client. Attorneys are constantly faced with friends who post about their legal troubles, so there is a temptation to give quick advice without thinking about it first -- and certainly without running conflict checks.

Soliciting confidential information on social media can easily create such a relationship as well. Acquiring confidential information from the prospective client -- even via a casual "tell me more and I'll give you a little advice off-the-record" -- could then lead to a conflict of interest with a current client.

Expressing definitive legal opinions on social media may conflict an attorney out of a big case with a current client. In fact, the entire firm could be conflicted out due to one attorney's comments.

However, note that a legal blog does not pose these ethical dilemmas if there is no communication of individual advice. As stated in State Bar of Ariz., Formal Ethics Op. 97-04 (1997):

Lawyers should not answer specific legal questions from lay people through the Internet unless the question presented is of a general nature and the advice given is not fact specific.

Thus, if your attorney possesses a “Dear Abby, J.D.” type of website or blog that offers specific advice on problems within your industry, it might be a good idea to think twice before signing the engagement letter.

3. LinkedIn and Client Contacts. ABA MPC 7.4 states that an attorney cannot claim a specialty unless it is in admiralty or patent law, or unless the lawyer has obtained a certification. Similarly, ABA MPC 7.2(b) states that an attorney cannot give something in value in exchange for a recommendation from a client. But social media, particularly LinkedIn, makes it easy for attorneys, both in-house and outside counsel, to fall into this trap.

For example, your DC&H attorneys have successfully resolved Cheese, Inc.'s patent infringement lawsuit, obtaining an infringement finding and leading to damages in the hundreds of millions. You, as CEO of Cheese, Inc., are thrilled! You've been playing with LinkedIn, and tell your contacts at DC&H that you'll recommend them if they recommend you. You both write and post blurbs about each other. This complements all of your LinkedIn profiles, which now lists all of the attorneys involved as specialists in patent litigation. How does this and other usage of LinkedIn violate the rules?

The "Recommendations" feature allows your client to recommend you, and vice versa. Clients and attorneys should not quid-pro-quo recommend each other on LinkedIn, so as not to violate ABC MPC 7.2(b).

The "Recommendations" feature allows clients to say whatever they want. Ethical standards prevent some types of statements, such as comparisons to other attorney services absent objective data -- i.e., "Best lawyer in town." Pre-screen the recommendations before they are posted.

LinkedIn allows listing "specialties" on the user profile, as well as areas of practice. The smart thing to do is leave these vague or blank so as not to violate ABA MPC 7.4.

The "Answers" feature allows attorneys to respond to questions that are posted generally. If voters constantly give the attorney's response a "best response" vote, LinkedIn designates the attorney as an "Expert," which may violate this rule.

The overall lesson? As a potential client, when shopping for an attorney or law firm, conduct a Google search and see what kind of social media footprint your prospective counsel has left. And on the flip side, monitor your own footprint closely. You and your attorneys don't need to stay away from social media, merely be careful not to bare your "soles" too heavily.

Wear shoes.

* * *

Coming Soon, Part Two on the Ethical Pitfalls of Social Media: Even more ethical rules implicated by social media, and examples of attorneys -- and judges -- who have stepped into the muddy situations they create.

The Search for Search Standards: The Hunt at DESI IV

William Hamilton — Tue, 28 Jun 2011 13:14:05 -0600

What makes an e-discovery search legitimate and defensible?

While virtually every case involves a search for relevant electronically stored information ("ESI"), there is no industry-based definition or measure of a “legally defensible” search. Reminiscent of Supreme Court Justice Potter Stewart's famous quip, some think we know a good search “when we see it,” but the simple and embarrassing truth is that we do not have an operative definition of search acceptability. The lack of any such industry standard for searching and finding ESI in a case wreaks havoc in the field and leaves it to courts to determine, on a case by case basis, whether a particular search passes muster. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.d. 251 (D. Md. 2008).

But while judicial officers are many things, they are not search experts. United States v. O’Keefe, 537 F. Supp. 2d. 14 (D.D.C. 2008); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331(D.D.C. 2008). In fact, many judges were elevated to judgeship years or even decades before ESI became prevalent, and thus lack any practical experience in searching for, processing, or producing ESI. Putting the question to the courts will therefore result (and has resulted) in disparate answers that vary from jurisdiction to jurisdiction depending both on how the search issues are presented, and on the quality and quantity of resources each side brings to the court. Do we want an approach that may lead to different search standards, say, in a federal court in Chicago versus a state court in Los Angeles?

The risk is simply too great and the issues too pressing, to allow a generation or two of common law decisions across multiple jurisdictions to be cobbled together to shape an overarching definition of a "good" search that counsel and clients can rely upon -- one that will stand up to judicial scrutiny. That's where "ICAIL," the International Conference of Artificial Intelligence and Law, and its Discovery of Electronically Stored Information (DESI) Workshop, comes in.

Actual search practice in litigation is a chaotic cacophony of divergent practices applied with more or less vigor and attentiveness. What is the best approach for any particular case? Much litigation is still stuck on the case-specific level of discussing and testing the application of Boolean search terms. As a result, the more general and overarching issues of search tools and other technologies involved --which form a large part of whether a search methodology passes muster as a whole -- often take a back seat.

The current lack of legally defensible search standards is especially paradoxical given the tremendous strides that we are making in searching as a general rule. The public release of the Enron (and other voluminous) digital data collections has allowed for search algorithm testing and development on genuine ESI collections, and unleashed exciting new search technologies and methodologies. See.e.g. http://www.edrm.net/resources/data-sets/enron-data-set-files We now have our terra firma of a sufficient expanse, to conduct trial and error testing to find sustainable methods of searching. Moreover, an increasingly scientific approach to legal search is dispelling intuitive “the world is flat” biases -- such as the belief that the most reliable search (the so-called “gold standard”) is human, linear review of documents. See http://jolt.richmond.edu/v17i3/article11.pdf and http://trec.nist.gov/pubs/trec18/papers/LEGAL09.OVERVIEW.pdf. A purely linear approach is an invitation to cost and quality disasters, as the court implied in Multiven, Inc. v. Cisco Systems, 2010 WL 2813618 (N.D. Cal. July 9, 2010), and harkens back to Ken Withers' admonishment to move beyond the dark ages of "proto-digital" e-discovery. See also Kenneth J. Withers, "E-Discovery in the Next Decade: Finding a Way out of Purgatory," Keynote Address at Fifth Annual Advanced E-Discovery Institute (Nov. 20, 2009) and http://ediscovery.quarles.com/2010/08/articles/case-law/because-something-must-be-done-the-dangers-of-trying-to-save-ediscovery-costs-by-treating-data-like-paper/

As our search technologies and research advances, these capabilities will need to be incorporated into the definition of a “legally defensible search” that will give comfort to counsel and client, and that will not be second-guessed in the trenches of our adversarial litigation process. Because, ironically, while we struggle for precision in our searches, today we cannot precisely define a defensible search.

This is not to say there is no guidance at all. Federal magistrate judges have provided some invaluable guidance, and The Sedona Conference® as always has provided important thought leadership on general search technologies and approaches. See generally www.thesedonaconference.org and The Sedona Conference®, Commentary on Achieving Quality in E-Discovery. EDRM has produced excellent search commentaries. http://www.edrm.net/projects/search. And e-discovery blogs such as Ralph Losey’s “E-Discovery Team,” http://e-discoveryteam.com/2011/05/30/the-information-explosion-and-a-great-article-by-grossman-and-cormack-on-legal-search and John Tredennick's "E-Discovery Search Blog," http://www.catalystsecure.com/blog, have also advanced the dialogue. However, we are far from a definition of “legally defensible search” that judges can use to assess search efforts.

Into this vast and uncharted territory, rides the Discovery of Electronically Stored Information (DESI) Workshop of ICAIL, which held its fourth meeting this month at the University of Pittsburgh. http://www.umiacs.umd.edu/~oard/desi4/. The questions posed to the Workshop by Jason Baron and the DESI organizing steering committee composed of Jason Baron, Laura Ellsworth, Dave Lewis, Debra Logan, and Doug Oard to the 150 participants (vendor representatives, academicians, and lawyers) were:

(a) whether e-discovery search is capable of standardization, and

(b) if so what models might be suitable for the standard setting task.

In short, what would a defensible search standard look like? The day was divided between excellent presentations/discussions and small break-out groups working on discrete topics. We were honored and energized by an extended videoconference visit by Federal magistrate judge Paul Grimm http://www.mdd.uscourts.gov/publications/JudgesBio/grimm.htm, who is well-known for issuing thoughtful opinions on the issue of e-discovery, who enthusiastically endorsed the committee's work and provided a penetrating critique of the impact of the lack of search standards from the perspective of the bench.

I am not the official reporter of the DESI IV meeting and the opinions here are my own, but I think it safe to say that a consensus emerged on a number of points, two in particular:

The time for search standards has arrived. The industry is sufficiently mature and the need is palpable. The right standards model may be ISO 9001 certifications coupled with an addendum specifically addressed to electronic discovery industry. See e.g. http://www.umiacs.umd.edu/~oard/desi4/papers/knox.pdf; http://en.wikipedia.org/wiki/ISO_9000.

A cross-vendor search standard will not be a particular tool or methodology, but an institutionalized quality assurance process that is required in many industries but that that has not penetrated the legal industry generally, much less e-discovery in particular. For example, manufacturers and retailers refuse to accept supplier products and services that are not “produced” subject to ISO standards. Legal processes should not be an exception. The ISO 9001 certification standard will require quality controls, precision and recall metrics, a proper mix of automated process and human direction and iteration, sampling parameters, exception reporting, refinement, auditing, and a senior management, institutional process commitment to on-going, enhanced measureable and verifiable quality. Clients, lawyers, and courts may ultimately, and perhaps soon, require ISO certifications before accepting search results.

ICAIL’s DESI IV Workshop has launched a long overdue undertaking. There will be little justice without e-discovery and little meaningful ESI without good, defensible search in our exploding digital data ecosphere. See Baron and Losey,"E-Discovery: Did You Know? http://www.youtube.com/watch?v=bWbJWcsPp1M.

At stake is the legitimacy and integrity of our judicial processes. In trying to pave roads through a near-barren landscape, DESI deserves our unwavering support.

The Litigator's Guide to E-Discovery Sanctions: Who Pays the Piper When ESI "Disappears"?

Kevin Burns — Fri, 01 Apr 2011 11:50:22 -0600

As interest in e-Discovery continues to grow, there's no question what's the driving force that grabs the headlines. Sanctions, of course. It is the water cooler of the ESI world. Sanctions capture clients' interest, and motivates unwitting attorneys to pay attention to the growing field that is e-discovery. And while it may be known that significant sanctions have recently been imposed for e-discovery violations, what is missing is perspective. How often are sanctions requested? When will they be imposed? How severe will the punishment be? What did the client and/or attorney do wrong?

A recent study by three King & Spalding attorneys that was published in the Duke Law Journal, attempts to provide some of this perspective. A full copy of the article can be found here. They identified 401 e-discovery cases where sanctions were sought dating back to the early 1980's and through January 1, 2010. Of those cases, sanctions were awarded in 230 cases.

How many cases are there today? Likely many more. It should be no surprise that the number of e-discovery sanction cases has been growing in recent years -- and exponentially. As recently as 2003, there were only seven e-discovery sanction cases. In 2009? That number spiked to 111. To put this in perspective, these 111 cases outnumber the total for all of the years prior to 2005 combined, and accounted for over 25% of the all cases ever reported.

So sanctions are being sought and awarded on average in over fifty percent of the cases (401/230). But how severe are the penalties? Courts awarded in excess of $5 million in five of the cases identified, and in excess of $1 million in four of the cases. Courts also terminated the action, either by dismissal or default judgment, in thirty-six of the identified cases.

Note, however, that the above cases involved extreme misconduct. Of the thirty-six cases that courts terminated, thirty-four involved willful misconduct or bad faith behavior. Only two involved gross negligence, and none involved negligence. Moreover, these extreme examples are the minority. They only account for ten percent of the e-discovery sanction cases, and twenty percent of the cases where sanctions were awarded.

The study also revealed that defendants were sanctioned three times more often than plaintiffs. This makes sense because for defendants are more likely to hold ESI relevant to the lawsuit and to face broad discovery demands from plaintiffs. The most common misconduct was failure to preserve ESI followed by failure to produce and failure to produce in a timely fashion.

Judicial sanctions of counse -- whether through money or orders to attend certain legal education classes -- are also increasing, though this is still considered a drastic remedy. The study identified thirty cases where counsel was sanctioned, including seven instances in 2009 alone. The vast majority of these cases involved a pattern of misconduct as opposed to isolated incidents. The predominant sanction was an award of attorneys' fees and costs, which ranged from $500 to $500,000.

The bottom line: sanctions for e-discovery are on the rise and they can be exorbitant. Clients and practitioners can take some solace, however, in two facts: (a) the most severe sanctions only result from the most egregious misconduct; and (b) while sanctions may be growing, they still remain relatively small in number and infrequent.

For additional thoughts on this topic and the Duke Law Journal article, please visit the excellent article in the ABA Journal by Debra Cassens Weiss or the report from the Catalyst E-Discovery Blog.

Tools for Evaluating and Selecting E-Discovery Vendors

Anthony P. Chan — Fri, 25 Mar 2011 09:17:14 -0600

Helpful, effective guidance on evaluating and selecting e-discovery vendors is rare. For one, the constant development of technology makes it difficult to keep up with the latest vendor offerings. Not to mention that more vendors pop up on almost a daily basis. Court rulings also play a role in changing the e-discovery landscape and therefore the tools needed to keep up with it.

On the scholarly end, The Sedona Conference® published a white paper on e-discovery vendor selection (June 2007), and Gartner, Inc. offered a similar guide for attorneys and litigation support professionals (Dec. 2009). Gartner's guide also provided a market rating on 18 of the biggest players in the e-discovery industry. Some of the important evaluation criteria considered in both reports include:

Project identification (scope of work)
Vendor's viability (business organization, office locations, sub-contracting, staffing, technical expertise, conflicts, financials)
Vendor's market understanding and sales strategies
Vendor's experience or work quality
Customer feedbacks or client references
Products and services
Products support and maintenance (document repositories, media type, project/data security, recovery, forensics, project/records management, internal/external IT infrastructure integration)
Pricing
Delivery (deadlines, project scope changes)

The The Sedona Conference® 2007 includes a sample decision matrix to weigh various factors that are critical to project success. The 2009 Gartner report provides a rating summary for reviewed vendors.

But despite these available, helpful guides and road maps, it is still a time-consuming process to conduct internal audits, compile RFI (Request for Information) and RFPs (Request for Proposals), evaluate responses, and utlimately select the appropriate vendor(s) to handle the project.

One possible solution? Enter Apersee.

Of late, Socha Consulting LLC and Gelbmann & Associates have jointly developed an automated vendor evaluation tool, which they call Apersee.

Still in "beta" mode, Apersee is a ranking tool meant to assist practitioners in selecting e-discovery providers as well as associated products and services. After the user defines and weighs the priorities for an e-discovery company, product or service (a weight is defined on a scale of from 1 (appreciated but unimportant) to 5 (critical & required)), the Apersee Selection Engine sets out to analyze how important a given element is to the decision process by applying a proprietary algorithm to score every product in its database.

If a product or service met all of the requirements, it would receive a score of 100 percent. This scoring method gives preference to criteria the user has designated as most important, and returns the list of matching products or services in ranked order. Essentially, Apersee follows the Electronic Discovery Reference Model (EDRM) in its evaluative process. It includes the following matrix:

EDRM stages (information management, identification, preservation, collection, and processing with review and production)
Functions (tools, project management, media types, security, capacity, training, support, fee structures and provider integration)
Geography and vendor office locations
ESI types and languages covered
Qualifications (experience, staffing, certifications, cases handled, affiliations and awards)
Product type (applications, cloud, SaaS, service)

In most scenarios, parties to litigation have limited time to prepare for e-discovery and vendor selection. Any tools and strategies that can help shorten the decision-making process would prove beneficial. At first glance, Apersee seems to incorporate all the important elements in evaluating e-discovery vendors. Its success will be contingent on the size and quality of its vendor database and the services the vendors offer. It could prove to be a welcoming tool to streamline the arduous process of e-discovery vendor selection. Only time will tell.

Man vs. Machine: Will E-Technology Render Associates Obsolete?

Chad Wiener — Mon, 21 Mar 2011 12:51:16 -0600

In a highly-anticipated showdown, the IBM-created computer “Watson” prevailed against two human champions on the television game show "Jeopardy!". In a world where machines have already replaced humans in manufacturing and human labor tasks, this sneak peak into a future where humans might also be replaced by machines in intellectual pursuits, was somewhat daunting.

However, in the world of legal technology, that future might already be here. New technology in searchable electronic formats has already eliminated innumerable hours spent by associates and paralegals pouring over hundreds of thousands of documents. Is this only the beginning . . . and is it desirable? In the battle of Man v. Machine, will e-discovery software "free lawyers to be lawyers" or will they simply "reduce the number of jobs for associates"?

In a column by the staff of The Legal Intelligencer published on the Pittsburgh Post-Gazette.com site, it was reported that “the growing use of software programs that can sift through mountains of electronically stored information turned over as a part of pretrial litigation…could put out of work a veritable army of young associates.” The column referred to an article published in the New York Times that said, in part:

After all, software doesn't bill at rates in excess of $100 per hour, and, moreover, as one lawyer told the Times, computers don't get bored or get headaches -- two very common occurrences when poring over thousands of e-mails, most of which will prove irrelevant to the crux of the case.

The column went on to note that “Paul Krugman, the newspaper's economic columnist, cited the story in arguing that even high-status professions like the law can be vulnerable to redundancy as a result of technology.”

The new technology of producing documents in searchable electronic formats has already eliminated innumerable attorney hours. Where once every document produced had to be read and considered for its possible value to the case, now the use of keyword searches and other new technology allows the machine, not the human, to identify documents that need further review. But currently, every document identified by the program still has to be vetted by a human for its possible relevance to the case. For law firms and their clients, the dollars saved by having software programs review electronic documents can be much better allocated to the actual preparation of the case; or, as the column noted, “If anything, e-discovery software is as likely to free lawyers to be lawyers as it is to reduce the number of jobs for associates. In any event, many of those jobs have already been outsourced or given largely to support staff.”

So, for the moment, humans appear to still have functional value over their machine counterparts. And don’t forget, Watson may have won the Man vs. Machine tournament, but he incorrectly answered Final Jeopardy while both the humans got it right, proving we’re not obsolete…quite yet.

"Friends" in High Places: Social Networks, Lawsuits and Friending Judges

Chad Wiener — Wed, 09 Mar 2011 11:55:59 -0600

Wanna be friends with a judge? Well, he might end up “friending” you on Facebook as part of an in-camera review of your page, if something you post may be relevant to a lawsuit.

Imagine that you are a middle management corporate employee who has finally (urged on by your kids) joined the 21st century and launched a personal Facebook page. And then you friended a bunch of people, including some neighbors, family, and some of your fellow employees and supervisors. Why not? After all, you have a pretty good relationship with them.

Over the next few months, the following occurs:

You post that your supervisor is an idiot who doesn’t pay any attention to what’s going on in the office. The next day some receivables go missing, and now the boss suspects you. How did he find out? Perhaps you friended him and simply forgot; perhaps you friended another employee who is friends with your boss. Or perhaps you simply forgot to change your privacy settings.
You are sued by an employee who you friended a while back. Why? You fired him two weeks ago because the employee’s Facebook page showed him skiing on the day he called in sick.
You posted derogatory comments about your horrible neighbors. A week later someone vandalized their house, and now they are blaming you.

According to an article in the DRI Defense Bar by Michael Goodfried and Martha Dawson, Electronically Stored Information (“ESI”) contained on a party's social networking site can be subject to discovery if it relates to the issues in the litigation. In EEOC v. Simply Storage Mgmt., No. 1:09-cv-1223-WTL-DM, 2010 WL 3446105, at *3, (S.D. Ind. May 11, 2010), the court stated that discovery of social networking sites "requires the application of basic discovery principles in a novel context", and that the challenge is to "define appropriately broad limits . . . on the discoverability of social communications."

Once it’s been determined that the content on the social networking site is subject to discovery, the next element is to determine which particular content is discoverable, based on the court’s consideration of the relevance of the requests within the scope of Rule 26 - or whether the requesting party is on a fishing expedition. “The court may choose to order the user to provide access to their entire profile, or it may order access to a limited portion of the content, such as wall postings available to all of the user's contacts, or messaging with particular individuals. In at least one instance, the court has offered to provide an in camera review by becoming "friends" with the user in order to review the private content for relevancy, before making a decision as to whether the other side could see it. Barnes v. CUS Nashville, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010).”

Shazzam! Instant friendship with a judge!

Courts may also examine the privacy policies of the social networking sites themselves. Many of these sites explicitly state that they do not guarantee the privacy of user content. For example, Facebook's privacy policy, as of October 5, 2010, states that "some of the content you share and the actions you take will show up on your friends' home pages and other pages they visit" and that Facebook may "disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law." See Facebook's Privacy Policy. In Romano v. Steelcase, 907 N.Y.S. 2d 650, 655 (2010), the court went so far as to state that the plaintiff has no reasonable expectation of privacy "notwithstanding her privacy settings" because Facebook and MySpace did not guarantee "complete privacy."

So before you post that your assistant is a moron and get sued for defamation, consider whether you really want to friend a judge.

The Social Network…coming soon to an in-camera review in a courtroom near you.

Bill Hamilton's Seven Deadly Sins of the Rule 26(f) 'Meet-and-Confer' Conference

Wendy Akbar — Wed, 02 Mar 2011 11:59:37 -0600

**This article was published by Bill Hamilton, a partner at Quarles & Brady and Chairman of the Association of Certified E-Discovery Specialists (ACEDS), www.aceds.org, the member organization for professionals in the private and public sectors who work in the field of e-discovery.**

Federal Rule of Civil Procedure 26(f) requires parties in litigation to "…confer as soon as practicable … [and to]…state the parties’ views and proposals on …any issues about disclosure or discovery of electronically stored information….." Proper handling of these "meet and confer" sessions about electronically stored information (ESI) and e-discovery is crucial to a winning litigation strategy. Don't think of the session as a procedural formality and just go through the motions. STOP!! Take a deep breath and think. The Rule 26(f) conference is where you begin the management of the opposition, and sets the structure of a case's e-discovery process. Your goal is to minimize your e-discovery costs and risks and to make sure you will be able to get the data you need from the opposition.

Avoid the Seven Deadly Sins of the Rule 26(f) conference and you’ll be well on your way to making e-discovery work for your case.

Deadly Sin #1: Failure to Set the Agenda. Come prepared to the Rule 26(f) conference . . . and make sure your opponent is prepared. Write a letter to the opposing counsel saying what you expect to accomplish at the conference, what information you will bring to the conference, and what information you expect from the opposition. Allowing the opponent to come to the conference unprepared wastes time and money, and impedes achieving your conference goals. If the opposition shows up at the conference “empty handed,” let the opposition know that you will advise the court of any further failures. Additionally, re-schedule the conference immediately. You need to insist on a genuine, meaningful Rule 26(f) conference for the very reasons the opposition is intent on avoiding it. Don’t let them escape this opportunity for you to structure electronic discovery in a way that works best for you.

Deadly Sin # 2: Failure to Manage Preservation. While your instincts at the beginning of litigation may be to keep information close to the vest, disclose your preservation decisions at the Rule 26(f) conference. Be prepared to explain them. You cannot preserve all client data. Unnecessary preservation takes time and money and is wasteful. For example, it is probably not necessary to preserve forensic images of laptops and desktops or Internet browsing histories. It is also unlikely that back-up media containing unimportant and cumulative data will be needed. Disclosure allows you to sleep at night. If unpreserved data suddenly becomes relevant, your initial disclosure will help you avoid or minimize judicial sanctions. Demand the same from your opponent. Their data is part of your case. Make sure it is secured.

Deadly Sin # 3: Failure to Corral E-Discovery Limit and phase e-discovery. E-discovery is typically not an "all at once" game. Most cases can only afford so much e-discovery. E-discovery is bounded by the dollar value and importance of the case. ESI volume is often staggering. Present a sensible plan to corral the important data. Only a handful of documents are likely to be used at trial. Why process and review the data of 20 company employees who might have some marginally relevant ESI when a few key players can be identified quickly? Suggest starting with these two or three key employees and building from there. Reach agreement on a flexible, rolling e-discovery plan. Include this phased plan in the scheduling order that is entered pursuant to Federal Rule of Civil Procedure 16. Be sure to disclose the locations of electronically stored information that you consider not reasonably accessible under Federal Rule of Civil Procedure 26(b) (2) (B). Be prepared to defend your claims. When the opposition declares ESI locations not reasonably accessible, put them to the test. Don’t accept generalized representations of counsel. Technology moves on. Much of what was once thought not reasonable accessible is today readily available. Demand the details, and consult an expert on ESI accessibility.

Deadly Sin #4: Failure to Set Search Expectations. Make sure your opponent knows you will insist on search quality and demonstrable, statistically valid recall. High recall means the search is pulling most, if not all, the responsive documents. The opposition will normally be attentive to search precision and not pulling false positives, i.e. unresponsive documents. Don’t let the opposition test for precision and not test for recall. Find out how the opposition will search the data and whether the opposition will employ manual searching or automated search tools using key words and concept filters. Make sure your opponent knows that search quality is your focus. It is your job to deter sloppy, casual searching for the data you may need to win your case. Your client deserves the best possible data, not just what the other side happens to find. Be sure to meet your own search standards or you will not be able to effectively call the opposition to task. Don't settle for a "don't ask, don't tell" strategy and blind reliance on what the opposition produces.

Deadly Sin #5: Failure to Specify the Production Format. Establish the production format. You usually get only one bite at the production apple. Make sure you get the data in a format and with a load file that works for the technology you will be using. The opposition will not know how you need the data delivered unless you tell them. Don’t wait for delivery and then complain. You should reach agreement on how you want the electronically stored information from your opponent produced and how you will produce your own. Do you intend to produce data in "native" (meaning a copy of the original electronic file) or in TIFF or PDF formats with load files containing extracted searchable text? What metadata will be produced? Discuss how each side's data will be organized and delivered and what metadata will be produced. If you are using a vendor, get the vendor’s delivery specifications and provide it early to the opposition. Don’t let the opposition decide what format is reasonably useable for the case.

Deadly Sin # 6: Failure to Protect Against Privilege Waiver from Inadvertent Production. Make sure to get the entry of a court order, under Federal Rules of Evidence 502, protecting you against inadvertent disclosure of privileged documents and providing that any determination of non-waiver arising from an inadvertent production is also binding on state court proceedings. Negotiate a written protocol with the opposition as to the procedures to be followed if a privileged document is discovered to have been inadvertently produced. Mistakes happen even after rigorous - and expensive - review and double checking. Don’t think your production will always be flawless. The greater the volume of ESI, the greater the chance of mistake and error. Neither automated searches nor human reviewers are 100% perfect.

Deadly Sin # 7: Failure to Document. Don't let what you won at the Rule 26(f) conference get lost in the fog of competing - and faulty - memories. Confirm in writing all the agreements and understandings. No one will recall a year later what transpired unless you confirm it in writing. Memorialize the conference as you would a settlement agreement or a contract. This documentation is your roadmap to a successful case.

Avoiding these Seven Deadly Sins will help you take control of your case and manage e-discovery. Taking control means taking control of the Rule 26(f) conference and achieving your e-discovery goals, a crucial component of any winning strategy.

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**Bill Hamilton will be a featured speaker at the ACEDS 2011 Annual E-Discovery Conference on March 23-25, 2011 at the Westin Diplomat in Hollywood, Florida. For more information and to sign up for the Conference -- a chance to learn the ins and outs of e-discovery through hands-on experience, practical guidance and interactive learning from 28 experts in the field -- visit /conferencewww.aceds.org**

Court Refuses to Read Silence as Agreement to Pay Opposition's ESI Costs

Anthony P. Chan — Wed, 23 Feb 2011 11:59:36 -0600

Never assume that the other side will be paying for your e-discovery costs. A New York state court recently rejected a party's crafty strategy of (a) telling its opposition in writing that it expected them to pay for the costs of production; and (b) taking the opposition's failure to respond as acquiescence to a $67,000 bill.

Plaintiffs filed suit for breach of contract in a construction case, Silverman v. LeMadre Development, LLC et al., No. 08-603231 (N.Y. Sup. Ct. 2008). Plaintiffs requested that the defendants produce electronically-stored information (ESI) as part of the discovery process. In response, defendants sent a letter in July 2010 reminding plaintiffs' of a so-called obligation to pay for costs incurred in producing ESI. Defendants' letter asked the plaintiffs to respond within two business days "so that [the defendants] can proceed as promptly as possible with [plaintiffs'] demand."

Plaintiffs did not reply to the letter. Nonetheless, defendants went ahead and produced more than 7,000 pages of ESI at the cost of $67,000. Two months later, they filed a motion to compel the plaintiffs to pay for the costs on the grounds that the plaintiffs' silence constituted an agreement to do so.

Not so. In a Nov. 2010 order, New York Supreme Court Justice Eileen J. Bransten ruled that the defendants could not shift the cost of e-discovery to plaintiffs under a "silence is acquiescence" rationale. Citing Russell v. Raynes Associates Ltd. Partnership, 166 AD2d 6 [1st Dept 1991], the court held that plaintiffs had no legal duty to respond to the letter, so their lack of response could not be deemed acquiescence.

Defendants' choice of case citations did not help their case. Relying heavily on T.A. Ahern Contractors Corp. v. Dormitory Authority, 24 Misc 3d 416 (Sup Ct, NY County 2009), defendants asserted that "the party seeking discovery bears the cost incurred in its production. But the Ahern court itself had earlier declined to compel production of each party's requests for electronic discovery until each party agreed to cover the costs of producing the data that party requested. Here, there was no such explicit agreement, whether voluntary or court-ordered.

Defendants then cited Waltzer v. Tradescape & Co., LLC, 31 AD3d 302 [1st Dept 2006], which concerned retrieval of deleted ESI. But in this case, the data was readily available. Finally, defendants cited Lipco Elec. Corp. v. ASG Consulting Corp., 4 Misc 3d 1019(A)(Sup Ct, Nassau County 2004) in which a separate program was needed to search and extract data, as well as a relational database to store the data and another program to read and collate it. Here, defendants' ESI retrieval process was much less complex.

This decision suggests several factors for determining when and whether e-discovery production costs can be allocated between the parties:

The presence (or lack thereof) of a clear agreement between the parties to allocate production costs.
Whether the data is readily accessible or difficult to retrieve.
Whether special tools/programs are required to organize and review the retrieved ESI.

But could this dispute have been avoided altogether? According to a 2010 New York State Unified Court System report, the New York state court system has adopted Commercial Division Uniform Rule 8(b) and Uniform Trial Court Rule 202.12(c)(3), requiring parties to meet-and-confer on ESI-related issues before the preliminary conference in court. It is just one example of how state courts are trying to catch up to the avalanche of cases that involve e-discovery issues. In this case, perhaps if the parties had communicated more efficiently about their expectations for ESI production, they would have been spared the expense of litigating who would bear the expense.