According to Sweetland and McManus, litigation in [...]]]> Executive Corporate Magazine published an op-ed piece in this month’s edition which features attorneys Rodney R. Sweetland and Michael McManus of firm McKool Smith.  The two principals speak on the subject of the International Trade Commission (ITC)’s considerably faster discovery proceedings in comparison to timelines set by district courts.

According to Sweetland and McManus, litigation in district courts is a drawn out process, giving the parties plenty of time to correct mistakes and add new arguments.  On the contrary, the ITC allows for very little flexibility time-wise.  In fact, the Commission begins investigations to serve initial requests on the first day permissible.  The tight deadlines allow for a speedy start, not having to wait on scheduling orders or a conference of the parties.

The two attorneys go on to explain that the biggest difference between discovery at the ITC versus in district courts is how they handle third parties.  Compared to Section 337, district court proceedings in this context go through a much simpler discovery process.  Counsel is only required to submit a subpoena from the district where information is needed, but it is not necessary that they are admitted to practice in that particular location.  The only stipulation is that the attorney be admitted to practice in a trial court.  However, ITC and Section 337 proceedings require an application to be submitted to the Administrative Law Judge for a third party subpoena who will then grant requests based on a party’s time-considered need for relevant information.

The final point in the article states that relevance and necessity limitations are strictly enforced; making it of vital importance for the advising counsel of third party subpoena recipients to note that problems sometimes arise with the execution and enforcement of subpoenas.  The article’s takeaway message is that the ITC does not allow for flexibility as is possible with district courts; Immediacy is soon becoming the new buzz word, so to speak, on the topic of discovery procedures.

The full article of Discovery is Swift and Expansive at the ITC can be read in this month’s intellectual property section of Executive Counsel Magazine and the executive summary can be read here.

Honeywell has been [...]]]> WASHINGTON DC: Honeywell International continues in its legal battle against the US Justice Department for allegedly selling defective body armor to law enforcement and military agencies.  Honeywell is now pushing for sanctions against the DOJ on a case which began in 2008, accusing the Deptarment of failed litigation holds for their continued lawsuit.

Honeywell has been making a slew of e-discovery abuse allegations about the Justice Department which the DOJ blames on their e-discovery vendor and on a lack of communication among government agencies working on the case.  Honeywell explains that the Department used litigation holds on their company from separate, unrelated cases instead of information pertinent to the current case.  As a result, the company says that exculpatory documents were produced belatedly, or not at all, which has caused the case file to be irreparably distorted.

And so the mess begins to reveal itself.  With a production of over 2.9 million pages received from 77 custodians in over 40 agencies, government witnesses maintain that they were completely unaware of Honeywell’s pertinence in the data during preservation and collection.  Notices sent to witnesses supposedly never included the company’s name during this process.

Former government assistant attorney, Andrew Grosso, recently relayed to reporters that the government’s litigation processes are much more complex than those of companies in the private sector.  He adds that there have been several nightmarish cases in which government attorneys were unable to locate essential information.  (ACEDS) “I find it amusing when somebody says the government has unlimited resources.”  Grosso adds that he believes the government is currently becoming out-resourced with e-discovery technology in this case.  (ACEDS)

Unfeeling to the government’s claims of hardships during the discovery process, Honeywell continues its quest to push for sanctions saying that the DOJ’s suppressed records have distorted the truth.  The company adds that they will accept no less than an immediate production of all relevant information and a monetary compensation fee.  Agreeing with the government’s position would only allow the government to “abuse the discovery rules and impose costs on others without consequence,” says the company.

Robert Hilson of the Association of Certified E-Discovery Specialists writes that this case will put a “bright spotlight” on the government’s ability to handle electronically stored information (ESI) that may come into play during future civil and criminal cases.

The pressure is on for government agencies to work together between departments and with their e-discovery vendor.  Litigation is expected to increase over the next year, and some say that hiring more attorneys to work for the DOJ might avoid all of the current problems they are encountering. Seeing the country’s obvious need for a better, more efficient system in addition to a desperate need to create new jobs, could the e-discovery and legal industries end up becoming the answer to our prayers?

Sanctions on Ceglia’s attorneys for not complying with court discovery orders could very [...]]]> One year and four months after his case was filed Paul Ceglia lost his third legal team. The case revolves around Mark Zuckerberg and an alleged contract that would entitle Ceglia to at least half of the now multi-billion dollar company, Facebook, Inc.

Sanctions on Ceglia’s attorneys for not complying with court discovery orders could very well be the main cause of this third rupture. Jeffrey Lake, one of Ceglia’s former attorneys, swore under oath that Mr. Ceglia explicitly told him not to comply with discovery requests on more than one occasion. Ceglia counters that his privacy had been breached and moved on to a new team at DLA Piper. The latest firm has asked for a three week break in order to get the new legal team in shape.

Just as we saw in our post on the fight over the Steve Jobs icon, it is no secret that when an idea gains in popularity everyone wants a piece of the pie. In this case, Ceglia wants at least half.  If the court rules that this contract did exist, Facebook will soon have to cough up what could be billions of dollars.  If not, Ceglia will be spending a long time in jail for creating fraudulent documents and emails.

Some of the more interesting limits the model order [...]]]> The Federal Court of Appeals just released a model order for patent litigation e-discovery reform. On Tuesday the Federal Circuit Advisory Council unanimously voted for the model in hopes that eventually many federal courts will come to use it and more efficient e-discovery standards will take hold.

Some of the more interesting limits the model order sets are:

-          E-mail productions can only be requested for specific reasons, “not general discovery of a product or business”

-          E-mail requests are limited to 5 search terms per custodian and 5 custodians per producing party

-          Permission is not waived if privileged documents are inadvertently produced

Chief Judge Randall Rader of the Federal Court of Appeals led the way on the order stating that the U.S. Court System cannot continue to let e-discovery astronomically increase expenses. Advisory Council Chairman Edward Reines believes that although not perfect, this order will help shift habits towards more reasonable discovery practices.

Keep checking back next week, the BLLAWG will keep you posted on how the legal community responds to these guidelines.

Grossman was at the Federal Civil Rules Committee meeting [...]]]> Yesterday we attended a webinar called The Future of E-Discovery: Top Ten Trends and Predictions. Maura Grossman, Counsel at Wachtell, Lipton, Rosen & Katz, and Ron Hedges, former US Magistrate Judge, spoke on varying topics that have been foremost in the minds of the e-discovery world lately.

Grossman was at the Federal Civil Rules Committee meeting in Dallas, so it was interesting to get her take on the events. She mentioned the three proposals for reform, which we discussed, but also said that the DOJ voiced strong opposition to new rules at this point in time. I would have liked to hear more on this, but there will be another meeting in November, so we’ll keep you posted on the BLLAWG.

Ron Hedges made the point that while discovery reform remains at an impasse we need to deal with what exists now, and not what may exist in the future. With this in mind, the panelists jumped right in to talk about current interpretations and best practice of preservation and discovery. Here are some of the highlights:

The first question that was brought up was: At what point do you start collection, and to what extent do you collect?

Grossman says that as for now most companies are taking a conservative approach by playing it safe. To paraphrase, it is costly to do it right, but even more so to do it wrong. Since you can never really know what is relevant before a claim is filed, both Grossman and Hedges agreed that it would be best practice for a business to evaluate its needs, make a corresponding policy, and then implement it.

However as discovery becomes more complicated, the scope of preservation becomes less black & white. What counts as data that needs to be stored? Ephemeral data such as IP addresses? If your company has an in-office instant messaging system should you be saving those logs? You would not record all your phone calls, and if you don’t already log something for business purposes should you have to preserve it for a litigation hold? Then again, custodians might be sharing important information via IM.

In regards to litigation holds, you are only obligated to preserve data for a reasonable amount of time. But what is considered a reasonable amount of time? No one wants to remind the other party that they are still preserving data for a certain matter – it might remind them to take action.

The second part of the webinar was more ethics-based. Hedges brought up a question about new control and responsibility issues regarding your employees. For example, when do your employees’ Twitter updates reflect the company and when are they clearly acting from a personal realm? He predicts that as the new wave of social media continues to grow, we will have to look back to the law of agency, or apparent authority versus actual authority, and reanalyze how it applies to the modern day.

In that vein, can an attorney “friend” an adverse partner or a witness on Facebook? You would think the obvious answer is NO, but in New York you can look at any public information as long as you are honest about your identity. Nevertheless, the panelists recommend you follow traditional discovery methods to obtain that information.

On the whole, the webinar did not concretely go over the “top ten trends and predictions” as the title stated, but it did raise timely questions on data preservation and made interesting observations on the ethical gray-area we are entering as the professional melds with the personal. So what’s the takeaway message from “The Future of E-Discovery”? No one is sure where we’re going, but in the meantime make sure to think things through and be sensible.

On February 4, 2010, plaintiff Sarah Schreiber requested that a hard drive of [...]]]> The New York Supreme Court considered aspects of discovery of a hard drive for a recent marital dispute. In this opinion, the Court surpassed mere decision and instead, also outlined strict guidelines to be followed in connection to discovery of the hard drive.

On February 4, 2010, plaintiff Sarah Schreiber requested that a hard drive of defendant Marc Schreiber be given to the court for forensic examination. Schreiber claimed that the defendant “concealed his income and assets in an attempt to avoid paying her a fair share of marital income and assets earned or acquired during [their] thirty-year marriage.” Investigation of the hard drive would allow the plaintiff to discover information relating to the defendant’s “’bizarre’ financial activities” which, she claimed, were not procured during discovery. As an alternative to the defendant producing the hard drive to the court, the plaintiff offered that her expert be allowed permission to copy the hard drive at the office, and provide the copy to the court.

The defendant opposed the motion on the grounds that the plaintiff’s “request [was] unnecessary and burdensome,” as he had already produced the entirety of documents to her. The court considered CPLR 3101(a), which states that if information is ‘material and relevant,’ it can be compelled through motions. However, the court must ‘oversee the discovery process…to insure that undue prejudice and delay do not occur as the results of additional and/or potentially open-ended discovery, including unwarranted fishing expeditions.’ The court also had to consider that hard drives “are qualitatively different from other objects because of the difficulty in apprehending all that they contain.” To determine a ruling, the court looked to previous matrimonial cases where electronic information was involved.

In Etzion v. Etzion, the plaintiff-wife sought production of her husband’s computers and other digital information. The court decided that the plaintiff’s “allegation of defendant’s past fraudulent conduct did not justify plaintiff’s ‘all-encompassing’ demand for full system access.” In R.C. v. B.W., the plaintiff-husband sought the investigation of his wife’s computer. Justice Adams denied the plaintiff’s request, calling the discovery ‘a fishing expedition.’

Thus, in Schreiber v. Schreiber, the court denied plaintiff access to the hard drive, calling her request “overboard” and citing the “general” and “unlimited” nature of the discovery request. The court allowed “leave to renew by notice of motion within forty-five days after the date of service of the instant decision and order with notice of entry.” Upon renewal, the plaintiff is only allowed a clone of the hard drive. The court also outlined strict guidelines for renewal, as follows:

a)      Discovery Referee: The parties will have until the renewal deadline to agree   on an attorney referee…to supervise discovery…

b)      Forensic Computer Expert: The parties will have until the renewal deadline to agree on a forensic computer expert who will inspect and analyze the clone….

c)       File Analysis: The expert will analyze the clone for evidence of any download, installation, and/or utilization of any software program, application, or utility which has the capability of deleting or altering files so that they are not recoverable…

d)      Scope of Discovery: Plaintiff will list the key-word and other searches she proposes to have the expert run…Plaintiff is cautioned that she should narrowly tailor her search queries so as to expedite discovery and reduce the costs of litigation to the parties….

e)      First-Level Review: …After performing searches, the expert will export to CDs or DVDs a copy of the native files and file fragments which were hit by such searches, and will deliver such media to defendant’s counsel to conduct a privilege review….

f)       Second-Level Review: Within twenty days after delivery of the media containing the extracted files and file fragments, defendant’s counsel will deliver to plaintiff’s counsel in electronic format…all non privileged documents and information included in the extracted files…

g)      Discovery Disputes: The referee will resolve any disputes concerning relevancy and privilege….

h)      Cost Sharing: All costs for the expert will be borne by plaintiff…

i)        Discovery Deadline: The parties should agree to a fast-track discovery schedule, subject to an outside ninety-day deadline within which discovery should be completed.

j)        Retention of Clone: The discovery referee will keep the clone until the action is concluded, at which time the clone will be returned to defendant’s counsel for disposal.

For more information about this case, refer to the case site Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010).

We asked several judges to review [...]]]> Anne Kershaw and Joe Howie write on the Law Technology News website about the results of their survey among eDiscovery providers.  The gist of their article – and it’s a good one – is that failure to deduplicate e-mails across custodians may be at best sloppy, and at worst unethical:

We asked several judges to review this article and all quickly grasped the benefits of deduping across custodians. When asked if deduping practices should be considered when deciding attorneys fees, most indicated it would be appropriate.

Said U.S. Magistrate Judge John Facciola [author of U.S. v. O'Keefe, asserting that most lawyers are not qualified to write effective keyword searches], “Certainly. I already look for … over-lawyering, having too many people doing the same thing, or having overqualified people do what the more junior people should do. … Failing to dedupe is the electronic version of the same problem.”

I’ve stayed out of the dedupe-yay-or-nay argument until now, since LLM’s mission as a service provider is to do what our clients ask of us, not to promote ESI processing options that (let’s be honest) make us money.  However, while I agree that more lawyers should de-dupe across custodians wherever possible (if for no other reason than to cut down their own review costs), I have to disagree with the necessary implication that there’s something inherently unethical about the failure to do so.

What Anne and Joe fail to note is that deduplication is itself a primitive process, especially where e-mail is concerned.  All deduplication is performed by comparing “hash values” - numerical “fingerprints” calculated by examining the file and its wrapper on the storage medium.  The computer calculates the hash value by factoring in every character and pixel in the file (visible and invisible), all of the metadata, the file size, and in some cases even the location of the file on the storage medium.  Like human fingerprints, it’s rare (though not impossible) to find different files with the same hash; for nearly all purposes, therefore, each hash value is unique unless the files are exact copies.  The processing software then compares hash values and, where it finds a match, flags or discards the duplicate.

This process works fine for files.  It doesn’t work so well for e-mails.  Because there are so many different formats in which e-mails can be stored, exported, attached, nested, etc., e-mail hash values are calculated based on content properties such as the subject, body text, attachment count and attachment names, and the e-mail date.  The e-mail hash can also be calculated by including addressee information: sender, recipients, CC and BCC.  The problem is that, depending upon which properties are used to calculate the hash, the same e-mail on two different platforms (say, Microsoft Outlook and Lotus Notes) may end up with very different hash values.

Outlook and Lotus Notes, the two most popular desktop e-mail systems, have different ways of storing addressee information.  As a result, it has been our experience that, if addressee properties are included in calculating the hash values, the exact same e-mail will usually have a different hash value for each platform.  Different hash values mean duplicates go unrecognized.

There are many, many companies that use some flavor of both Outlook and Lotus Notes for some, if not all, of their custodians.  The upshot is that it’s quite easy to attempt and fail to deduplicate e-mails across custodians under such circumstances.  I’m therefore leery of buying into the blanket statement that overproduction of e-mails, by producing too many copies of the same e-mail, is necessarily an ethical violation.

If the parties do not focus [...]]]> From the National Law Journal, Sheri Qualters reports on the Delaware Court of Chancery’s recent spate of decisions regarding several aspects of e-discovery practice.  Most significant to me is Beard Research Inc. v. Kates, in which plaintiffs were granted an adverse inference instruction for missing computer evidence.  The key language:

If the parties do not focus on the handling of e-discovery in the early stages of a case, the Court is not likely to be sympathetic when, for example, one party later complains that stringent measures were not instituted voluntarily by her adversary to ensure that no potentially relevant information was lost.

In other words: Hashing e-discovery issues out early-on are critical to the success of a complaint later that the opposing party failed to avoid spoliation of data.  Another worthwhile quote from the same article:

“If you’re counsel for any party, you have to get right on the horn when litigation starts or litigation is contemplated and instruct your client in no uncertain terms that everything needs to be preserved,” [Jim S.] Green [Sr., counsel for plaintiff in Triton Construction Co. Inc. v. Eastern Shore Electrical Services Inc.] said. “I would go so far as if to say, if you have a document retention policy that involves deleting e-mails, prudence would dictate that litigation override that policy.”

Zubulake’s bright-line test [...]]]> There has been a bit of debate (okay, a LOT of debate) over what makes backup tapes truly “inaccessible”.  The California Assembly is on the verge of making that discussion moot.  From Law.com, this article agrees with their proposed new rule of evidence that it’s no longer necessary to consider backup data is presumptively inaccessible:

Zubulake’s bright-line test designating all disaster recovery systems as inaccessible simply does not apply in today’s world. It is likely only a matter of time before federal law reflects these advancements, rendering Zubulake inapplicable. Companies should therefore be wary of assuming that their disaster recovery systems do not have to be preserved and will not need to be produced.