Discovery Advocate | E-Discovery & Technology Attorneys

Judicial Conference Proposes Proportional Discovery Through Amendments to the FRCP

By Carey Busen on June 11, 2013 Posted in E-Discovery Rules

For the first time in over twenty years, the Judicial Conference’s Committee on Rules of Practice and Procedure have approved for publication proposals to amend the Federal Rules of Civil Procedure. If enacted, these proposals would significantly limit the scope of discovery – including ediscovery.

The proposals include imposing or reducing the number of depositions, interrogatories, and requests for admission under Rules 30, 33 and 36. But of particular interest to us is the proposed amendments to Rules 26 and 37, which support a proportional approach to discovery – an approach we previously advocated here, here, and here.

The proposed amendments to Rule 26(b)(1) significantly narrow the relevant scope of discovery from any matter that is “reasonably calculated to lead to the discovery of admissible evidence” to discovery that is “proportional to the reasonable needs of the case.” The Committee was concerned by the ever-broadening interpretations of “reasonably calculated” “to obliterate all limits on the scope of discovery [because] any information may lead to other evidence that is relevant and admissible,” particularly given the explosion of electronically stored information.

The Committee also proposed amending Rule 37(e), a safe-harbor provision intended to protect from sanctions parties whose data is deleted as a result of “routine, good-faith operation of an electronic information system,” but which is often ignored by courts. The new Rule 37(e) would apply to the preservation of all discovery, not just ediscovery, and would provide courts with other remedies before imposing sanctions. In addition, amended Rule 37(e) would protect parties that made reasonable efforts to preserve from sanctions, leaving sanctions only for those who engaged in willful or bad faith activity.

Should these amendments pass, the way we litigate cases will likely change dramatically. Parties will be forced to carefully craft focused discovery instead of taking a “kitchen sink” approach often employed today. That said, litigators will have plenty of time to consider the implications — public comments do not open until August 15, and the amended rules would not be enacted until December 2015. All developments will be covered here.

Highest Bidder Loses Spoliation Fight in Auction House Data Breach

By Karin Scholz Jenson on May 31, 2013 Posted in Proportionality

This blog post is a joint submission with BakerHostetler’s Data Privacy Monitor blog.

Co-authored by: Ganesh Krishna

A recent case out of the Northern District of Ohio is an unsung victory for proportionality in that the Court twice declined to sanction a plaintiff’s “failure” to forensically image computers where computer logs showing the relevant evidence were sufficient.

The case, Yoder & Frey Auctioneers, Inc. v. EquipmentFacts LLC, was brought by an online auctioneer of construction equipment against an ex-partner, EquipmentFacts, which was under contract to run Yoder’s bidding services. After Yoder ended the partnership, EquipmentFacts accessed Yoder’s website and posted negative comments about Yoder on a bulletin board and placed bids for more than $1 million for equipment, according to the lawsuit. EquipmentFacts won the bid but never paid for the equipment. Yoder sought damages for lost commissions from the auction.

How exactly EquipmentFacts gained access to the website seemed to be an open question – there was some evidence that EquipmentFacts used an old account, and some evidence that it used another bidder’s account. Yoder had produced software and server log files to show that the transactions were tied to EquipmentFacts’ unique IP address, but the server and software that Yoder was using at the time that EquipmentFacts accessed the system had been destroyed.

EquipmentFacts asked the Court to either dismiss the case or bar Yoder from introducing any evidence relating to the computer system on the grounds that the destruction of the system denied EquipmentFacts the chance to establish “whether the software and hardware worked correctly, produced reliable data, was inappropriately accessed by a third party, or simply analyzed incorrectly by Plaintiffs.”

On April 8, the Court denied the motion. In an opinion underscoring the importance of line drawing in discovery, the Court stated: “The plaintiffs having produced some documented evidence of a break in, the Court will not now sanction Yoder [. . . ] for not preserving the system so that EquipmentFacts might test whether the locks work.”

EquipmentFacts moved for reconsideration, which the Court promptly denied on May 16, 2013. In the opinion, that Court noted that conflicting, contradictory and rebuttable evidence does not equal spoliation.

“Simply saying that the other party’s evidence is weak does not lead to a finding that he spoliated the stronger evidence,” according to the Court. “The Court must find some specific piece of evidence that the plaintiffs should have preserved but actually destroyed.”

EquipmentFacts’ demand to have access to the system hardware and software is not entirely without merit, the Court said – if EquipmentFacts used that analysis to determine that the logs that Yoder produced were somehow defective. But the mere fact that the system may have contained relevant evidence was not enough.

“Preservation of an entire running system is a rare remedy and is often associated with suits premised on a defect in the system to be preserved,” the Court said.

Building on the analogy from the earlier decision, the Court found no basis for holding that “one accused of improper entry is entitled to dust the entire premises for fingerprints.”

The Court does not use the word “proportionality” in either opinion, but the message is there, loud and clear.

Nothing Goes Better with Race Tires than . . . Wine?! – Fourth Circuit Limits Taxable eDiscovery Costs

By Carey Busen on May 8, 2013 Posted in E-Discovery Rules, Taxable Costs

As we’ve discussed multiple times (see here, here, and here), the issue of what types of ediscovery costs are taxable under 28 U.S.C. § 1920 was first addressed by a federal appellate court last spring in Race Tires America, Inc. v. Hoosier Racing Tire Corp. The Third Circuit – in line with the Supreme Court’s interpretation of Section 1920 – declined to broadly apply the statute, concluding that only the costs of scanning paper documents and converting native files into TIFF images are recoverable. The Third Circuit’s analysis has gained traction with numerous district courts, but last week, gained its first appellate follower. Continue Reading

Proportionality and Predictive Coding: A Hip Combination

By Karin Scholz Jenson on April 26, 2013 Posted in Predictive Coding, Proportionality

Ok, excuse that bad joke. But the recent decision in In re: Biomet, the hip replacement multi-district litigation out of the Northern District of Indiana, is noteworthy because it discusses proportionality and predictive coding in the same space.

The mere fact that predictive coding is an available tool doesn’t mean that it should be applied to every document in a client’s possession, custody or control. Rather, it can be ok – defensible, even – to use it only on a subset of what is identified as potentially relevant. The open question is how and when to create the universe of documents subject to machine learning.

In Biomet, the defendant identified nearly 20 million documents for possible review, and then reduced that universe by using keyword searches. After deduping, that left 2.5 million documents and attachments. Continue Reading

Video Interview: Providing a Practicing Litigator’s Perspective on LegalTech New York 2013

By BakerHostetler on February 7, 2013 Posted in LegalTech

After attending LegalTech New York last week, Gil Keteltas, e-Discovery litigator and editor of BakerHostetler’s Discovery Advocate blog, had the opportunity to speak with Colin O’Keefe of LXBN to share his perspective. In the brief interview, he offers his overall impressions of the conference, shares his thoughts on a few noteworthy speakers and also follows up on some of the questions he posed in a blog post prior to the event.

What You Don’t Know About Your Discovery Vendor Can Get You Sanctioned

By Carey Busen on January 30, 2013 Posted in E-Discovery Rules, E-Discovery Vendor

A recent decision out of the Northern District of Illinois serves as an important reminder to all counsel relying on e-discovery vendors. In Peerless Industries, Inc. v. Crimson AV, LLC, the defendant was found to have control over its China-based supplier and, in particular, over the supplier’s documents.

After the defendant’s 30(b)(6) witness was unable to describe the Chinese entities’ computer and back-up systems, what searches were performed, or the Chinese entity’s document retention policy, the plaintiff sought sanctions.

Magistrate Judge Cox’s decision covers a lot of territory, including where the corporate representative could be deposed. But the most interesting part of this concise ruling concerns sanctions and her straightforward conclusion that a corporate representative can’t dodge questions concerning the preservation and collection of corporate records by saying pointing to the discovery vendor. Judge Cox held:

Such a hands-off approach is insufficient. Because of the control or “close coordination” between the two companies, defendants were required to produce the requested information. Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process.

As litigants become increasingly dependent on vendors to assist with the discovery process, they must still understand, direct and approvethe vendors’ activities.

Courts will have limited patience for attorney claims that they simply don’t understand technology. The recently revised comments to ABA Model Rule 1.1 state, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

In fact, this is not the first time a court has rejected attempts to blame vendors for issues arising in a document production. See Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 3489828 (N.D. Ill. Aug. 9, 2011) (party waived privilege claim where it blindly relied on vendor to withhold documents tagged “privileged”); Rosenthal Collins Group, LLC v. Trading Techs. Int’l, Inc., 2011 WL 722467 (N.D. Ill. Feb. 23, 2011) (sanctioning a party for its vendor’s misconduct).

Bottom line - Peerless reminds attorneys, both in house and outside, of the importance of working closely with your vendor. Because at the end of the day, if your client’s discovery obligations have not been satisfied, we suspect that judges will carefully evaluate the involvement of counsel before shifting the blame to vendors.

Letterman: Take the “e” out of eDiscovery!

By Gil Keteltas on January 29, 2013 Posted in E-Discovery Advocacy and Management, LegalTech

Co-authored by: Karin Jenson

Those of a certain age may recall the television show The Electric Company’s leading superhero, Letterman. He could resolve nearly any crisis by deleting, adding, or changing a letter, all while grooving to funky 70s’ music. Maybe that’s how we ended up with “eDiscovery.” Troubled by the legal profession’s lack of attention to electronically stored information, Letterman took the “e” from his chest and, well, you know the rest.

Initially, Letterman’s action had a positive effect. Lawyers began to focus on ESI. The Federal Rules Committee made clear that discovery included the “e.”

But, like most superhero interventions, there were some unintended consequences.

A plea to LegalTech vendors and panelists talking technology-assisted review!

By Gil Keteltas on January 24, 2013 Posted in E-Discovery Advocacy and Management, TAR

LegalTech New York is right around the corner. And, much like the recent Georgetown Advanced Ediscovery Institute, there will be no shortage of discussion about predictive coding/technology-assisted review (“TAR”). The agenda includes fourteen program descriptions that directly reference TAR and another eight that clearly suggest TAR will be a major topic.

As a user, student and proponent of TAR in the right cases, I hope we can sharpen the discussion at LegalTech TAR 2013. Along those lines, permit me a few (hopefully) constructive suggestions: Continue Reading

Marital Communications are “Essential to the Preservation of Marriage” – Unless Made from a Workplace Computer

By Gil Keteltas on December 14, 2012 Posted in Privacy, Privilege

Editor’s Note: This post is a joint submission to BakerHostetler’s Data Privacy Monitor blog.

Communications between spouses are typically accorded a “marital communications privilege” because they are “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” But marital communications to or from a workplace computer just became less privileged – at least in the Fourth Circuit.

In United States v. Hamilton, the Fourth Circuit considered Phillip Hamilton’s challenge to his conviction for bribery and extortion under color of official right. A jury concluded that, “while a state legislator, Hamilton secured state funding for a public university in exchange for employment by the university.”

Email that Hamilton sent to his wife from his part-time consulting job at the Newport News public school system was key evidence in his conviction. On appeal, Hamiltonargued that his email exchanges with his wife were subject to the marital communication privilege and were improperly admitted into evidence. Why did a three-judge panel of the Fourth Circuit disagree? Continue Reading