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Technology, Techniques and Best Practices

In Praise of Proportionality: Judge OKs Predictive Coding After Keyword Search

by Bob Ambrogi | April 29, 2013

Predictive coding purists might argue that the process is tainted if it is preceded by the use of keyword searching to reduce the document set. As a matter of fact, that was exactly what the plaintiffs argued in the multi-district litigation against Biomet over its M2a Magnum hip implant. But in a ruling last week, U.S. District Judge Robert L. Miller Jr. said that proportionality trumped purity, and that even if predictive coding might unearth additional relevant documents, the cost would far outweigh the likely benefits.

Emblème de la JusticeThe ruling came in a highly contentious matter in which Biomet has already produced 2.5 million documents out of a universe of 19.5 million. The plaintiffs say Biomet has not produced enough and that the production should total closer to 10 million documents.

Biomet began the process of producing documents in the summer of 2012, before the multiple lawsuits over its hip implant were centralized under the Judicial Panel on Multidistrict Litigation. It started by using keyword culling, reducing the number of documents from 19.5 million to 3.9 million, or 1.5 terabytes of data. Deduplication further reduced the number of documents to 2.5 million.

Biomet then employed predictive coding to identity relevant and privileged documents from among the 2.5 million that remained after keyword searching and deduplication. It also invited the plaintiffs to suggest additional search terms and offered to produce the rest of the non-privileged documents so that plaintiffs could verify that it was producing the relevant documents.

This process has cost Biomet $1.07 million so far and will end up costing between $2 million and $3.25 million, according to Judge Miller’s ruling.

The plaintiffs objected that Biomet’s initial use of keyword searching tainted the predictive coding process. They argued that keyword searching is less accurate than predictive coding, citing a recent article that said that keyword searches generate only a 20 percent responsive rate, compared to at least a 75 percent responsive rate for predictive coding. Because Biomet started with the less-accurate keyword searches, the entire process is flawed. The only remedy, they asserted, is for Biomet to go back to where it started and employ predictive coding against the original set of 19.5 million documents, with plaintiffs and defendants sitting together and jointly going through the process.

Balancing Cost against Benefits

Against this backdrop, Judge Miller framed the issue this way:

The issue before me today isn’t whether predictive coding is a better way of doing things than keyword searching prior to predictive coding. I must decide whether Biomet’s procedure satisfies its discovery obligations and, if so, whether it must also do what the Steering Committee seeks.

Judge Miller easily decides that Biomet’s process complied with the Federal Rules of Civil Procedure and with the Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, as well as with principles set forth by The Sedona Conference.

By contrast, he says that plaintiffs’ request that Biomet go back to Square One “sits uneasily with the proportionality standard in Rule 26(b)(2)(C).” The cost of this, he notes, would run in the “low seven figures,” but Biomet’s testing suggests it would find only a “comparatively modest number of documents.”

It might well be that predictive coding, instead of a keyword search, at Stage Two of the process would unearth additional relevant documents. But it would cost Biomet a million, or millions, of dollars to test the Steering Committee’s theory that predictive coding would produce a significantly greater number of relevant documents. Even in light of the needs of the hundreds of plaintiffs in this case, the very large amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of this discovery in resolving the issues,I can’t find that the likely benefits of the discovery proposed by the Steering Committee equals or outweighs its additional burden on, and additional expense to, Biomet.

Judge Miller concludes by stating that he assumes Biomet will remain open to meeting and conferring on additional, reasonable search terms and to producing the non-privileged documents included in the statistical sample. “Beyond that,” he writes, “if the Steering Committee wishes production of documents that can be identified only through re-commenced processing, predictive coding, review, and production, the Steering Committee will have to bear the expense.”

The full text of Judge Miller’s order is below. (If you are not able to see the embedded document below, click here to see it.)


Filed Under: Case law, Predictive Ranking, Search Tagged With: , , , ,

Court Awards $2.8M to Cover Cost of Technology Assisted Review

by Bob Ambrogi | March 22, 2013

Among e-discovery practitioners, it was a major milestone last year when U.S. Magistrate Judge Andrew J. Peck issued Da Silva Moore v. Publicis Groupe, the first judicial opinion expressly approving the use of technology-assisted review. In the context of real-world litigation, however, using TAR may be only half the battle — there is also the issue of having to pay for it.

Judge Battaglia

Thus, another judicial milestone may have been reached recently when a federal judge in San Diego awarded $2.8 million for costs associated with the use of TAR in a complex patent lawsuit that involved “voluminous” quantities of electronically stored information.

The fee award in Gabriel Technologies Corp. v. Qualcomm Inc. was part of a much-larger $12.4 million attorneys’ fees award in favor of Qualcomm. U.S. District Judge Anthony Battaglia entered the fee award after determining that the plaintiffs’ claims “were objectively baseless and brought in subjective bad faith.”

As part of its fee request, Qualcomm and its lead counsel, Cooley LLP, sought to recover $391,928.91 for use of an outside document-review vendor and $2,829,349.10 for fees associated with the outside vendor’s use of TAR.

Turning first to the fees for the review vendor, Judge Battaglia found that Cooley’s use of the vendor, Black Letter, was reasonable and that the fees charged by the vendor were reasonable.

The Black Letter attorneys billed a total of 6,949.5 hours of document review at rates of $55 to $67 per hour. As Defendants note in their motion, Plaintiffs’ claims involved 92 patents resulting in voluminous document production. For this reason, Cooley reasonably decided to have Black Letter perform document review in this matter. Had Cooley performed the document review themselves, the resulting attorneys’ fees would have undoubtedly been exponentially higher than those charged on behalf of Black Letter. In light of the circumstances and the amount of discovery required, the Court concludes that the rates charged and hours spent by Black Letter are reasonable and, thus, finds the resulting lodestar amount of $391,928.91 to be reasonable as well.

Turning next to the use of technology-assisted review supplied by a different vendor, H5, Judge Battaglia begins his analysis by quoting Qualcomm’s explanation for the use of TAR:

Over the course of this litigation, Defendants collected almost 12,000,000 records — mostly in the form of Electronically Stored Information (ESI). . . . Rather than manually reviewing the huge volume of resultant records, Defendants paid H5 to employ its proprietary technology to sort these records into responsive and non-responsive documents.

Here again, Judge Battaglia found both the use and the cost of TAR to be reasonable:

The review performed by H5 and Black Letter accomplished different objectives with the H5 electronic process minimizing the overall work for Black Letter. Again, the Court finds Cooley’s decision to undertake a more efficient and less time-consuming method of document review to be reasonable under the circumstances. In this case, the nature of Plaintiffs’ claims resulted in significant discovery and document production, and Cooley seemingly reduced the overall fees and attorney hours required by performing electronic document review at the outset. Thus, the Court finds the requested amount of $2,829,349.10 to be reasonable.

From what I have been able to find, this is the first published opinion in which a federal judge expressly awarded fees to cover the cost of technology-assisted review. Just as Da Silva Moore opened the door to other cases endorsing the use of TAR in e-discovery, perhaps so will this case open the door to other cases awarding fees for TAR.

 

Filed Under: Case law, Predictive Ranking, Sanctions Tagged With: ,

Report: Predictive Coding Replaces Sanctions as the Big News in E-Discovery

by Bob Ambrogi | March 11, 2013

For the last several years, year-end reports on e-discovery have highlighted sanctions as the lead headline. (For examples from this blog, see Report: Sanction Requests Rise But Awards Hold Steady for 2011 and E-Discovery Sanctions Reach an All-Time High, Survey Finds.) For 2012, however, a different story took the lead spot — the rise of predictive coding.

Such is the conclusion of the 2012 Year-End Electronic Discovery and Information Law Update published by the law firm Gibson Dunn.

In our prior electronic discovery mid-year and year-end reports, the lead story was sanctions, as numerous decisions imposing onerous penalties for real or perceived e-discovery failures caught the attention of the legal community. By contrast, 2012 was the year of predictive coding, and of meaningful rules reform becoming an important step closer.

What made predictive coding the story of 2012, says the report, were the several court decisions that discussed and even endorsed it.

In the absence of judicial approval, many litigants were unwilling to use this technology. That may well change now, following several decisions approving review methodologies involving predictive coding.

Of course, the increasing acceptance of predictive coding and other forms of technology-assisted review was not the only big e-discovery story last year. Among others cited by Gibson Dunn in its report were:

  • Proposed amendments to the Federal Rules of Civil Procedure that would limit the most serious sanctions for failures to preserve to cases where the court finds that the failure was willful or in bad faith, or that it “irreparably deprived a party of any meaningful opportunity to present a claim or defense.”
  • The rise of international e-discovery and the corollary need to deal with foreign data protection and privacy law.  ”Foreign data protection and privacy laws have become pervasive and foreign data protection authorities more active in their enforcement of such laws,” says the report.
  • The European Commission’s proposal to replace the 27 data protection laws of the EU member states with a single data privacy regulation — a proposal that has good news and bad news for companies, according to the report.

Sanctions awarded by type and percentage of cases where sanctions granted

Even though the sanctions story is no longer the lead in Gibson Dunn’s year-end report, it is by no means gone away. However, rather than focus on punitive sanctions, courts have shifted towards pragmatic solutions.

“Decisions have increasingly noted that remedial monetary sanctions, as well as other measures such as reopening discovery and hiring forensic analysts to search for spoliated data, are generally fairer and better at making the aggrieved party whole than punitive sanctions such as a default judgment,” the report says.

An area that gained increasing attention in 2012 among e-discovery professionals and courts is the discoverability of social networking information, the report finds.  Courts increasingly face difficult questions about the extent to which parties are required to preserve social media and about whether changes to social media sites constitute spoliation. “One court this year even required a defendant in a trademark infringement case to recreate a Facebook page as it had previously existed, so that the Facebook page showed plaintiff in a photo that displayed ‘infringing trade dress,’” the report explains.

Additional key issues from 2012 identified by the report are:

  • Parties’ preservation obligations in advance of and at the outset of litigation.
  • The scope and meaning of “cooperation” in e-discovery, consistent with the Cooperation Proclamation of The Sedona Conference.
  • The emergence of proportionality as an increasingly important concept in e-discovery.
  • The continued lack of clarity from the courts about what constitutes reasonable efforts to prevent the disclosure of privileged information.
  • Greater emphasis by courts on the government’s e-discovery obligations and a greater willingness to sanction the government for failure to live up to those obligations.

The full Gibson Dunn year-end report is available on the website and in PDF format.

Filed Under: Case law, Court rules, Predictive Ranking, Privilege, Sanctions Tagged With: , , , , , , ,

Article: Predictive Coding Helps Companies Reduce Discovery Costs

by Bob Ambrogi | February 26, 2013

Computer Technology Review has published an article by John Tredennick, Catalyst’s founder and CEO, “Predictive Coding Helps Companies Reduce Discovery Costs.” In it, John discusses how recent court decisions have opened the door to wider use of technology-assisted review to cut costs in document discovery.

In particular, he focuses on Magistrate Judge Andrew J. Peck’s 2012 decision, Da Silva Moore v. Publicis Groupe, writing:

Without doubt, Judge Peck ushered in the next generation of e-discovery search and review. In the months since his decision, the business world has shown a heightened interest in predictive coding. Other judges have picked up the mantle and considered its use in their cases. Industry vendors have scrambled to add predictive coding to their product rosters.

As important as was the ruling’s outcome, so too was its reasoning. For business leaders, IT professionals and in-house lawyers, the opinion provides a primer on the reasons for using predictive coding and the processes underlying it.

From there, John goes on to explain how predictive coding works and how it is used in e-discovery. In the end, he concludes:

For business leaders, the significance of Judge Peck’s ruling is its seal of approval for predictive coding technology. That should lead to its wider acceptance and use. With data volumes increasing dramatically, predictive coding is the best weapon businesses have to cut the cost and time of review. In their battle to conquer big data, that is a significant victory.

Read the full article at Computer Technology Review.

Filed Under: Case law, Predictive Ranking Tagged With: ,

Treading Past Angels: Finding the Right Search Expert for Your Case

by Ron Tienzo | January 15, 2013

Last February, Assured Guaranty Municipal Corp. sued UBS Real Estate Securities Inc. for breach of contract, accusing the company of failing to meet obligations related to the pooling of residential mortgage-backed securities. As the case moved along, disputes arose over discovery and both sides filed motions to compel.

One of the discovery issues in dispute was the adequacy of the search terms that Assured proposed to apply to electronic documents. Ruling on this issue in a Nov. 21, 2012, memorandum, U.S. Magistrate Judge James C. Francis IV began by quoting the oft-cited words of another U.S. magistrate judge, John M. Facciola, in U.S. v. O’Keefe:

Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

Because neither party provided the expert affidavits that would have enabled him to decide on the most efficient search protocol, Judge Francis laid out three options for counsel:

  1. They can cooperate (along with their technical consultants) and attempt to agree on an appropriate set of search criteria.
  2. They can refile a motion to compel, supported by expert testimony.
  3. Or, they can request the appointment of a neutral consultant who will design a search strategy.

Note that in each of the three options, Judge Francis requires that an expert be involved in any determination, even when both counsel come to an agreement out of court.

So, if counsel are required to consult an expert and if search creation and testing is truly an area where “angels fear to tread,” how do you make sure to select the right search expert for your case? Below are some tips you may find helpful in finding the right consultant.

E-Discovery Expert  ≠ Search Expert

Electronic discovery is an extremely broad field of knowledge covering the entire gambit of the EDRM [link: http://www.edrm.net/resources/edrm-stages-explained]. While there may be a few e-discovery experts out there qualified to serve as search experts, Judge Franklin makes clear that the expert should have a solid understanding of the interplay between “the sciences of computer technology, statistics and linguistics.”  In the world of academia, this field of study is referred to as “Information Retrieval” (IR). [link: http://en.wikipedia.org/wiki/Information_retrieval] Those specializing in IR seek to use searches to identify the relevant information from a larger sea of data. When selecting your expert, be sure she has expert knowledge in at least one of the areas of expertise listed by Franklin and foundational knowledge of the others. She should be able to understand how each science plays into the ultimate goal of creating defensible searches.

One Size Does Not Fit All

Like electronic discovery, IR is an extremely broad area of study. In 1992, the Text Retrieval Conference (TREC) [link: http://trec.nist.gov/ ] was created to support the IR community by providing the infrastructure to test and evaluate different text retrieval methodologies.  Since its inception, there have been 21 different research areas, or tracks. These tracks range from web search to spam filtering to gene sequencing. While the Legal Track has been a mainstay for TREC since 2006, it is far from the only IR area of study.

Much of IR focuses on returning the best results from an extremely large dataset. A good example of this would be web search. In web search, the user enters a query and the IR system compiles a list of matching results in a ranked order by likelihood or responsiveness. Users typically find what they are looking for within the first few pages of results and have no need to proceed further.

In contrast, an ideal e-discovery search methodology would need to make an accurate relevance assessment on each and every document in the collection. Instead of finding just the best documents, we need to identify those with even the slightest traces of relevant content. This task poses a unique and what I believe to be a significantly harder task than the majority of IR research.

When selecting a search expert, be sure to find one who is familiar with the intricacies of legal search. While the ideal candidate does not need to have a JD, the expert should be familiar with what is required under the Federal Rules of Evidence and be able to conform her processes to that standard.

Those Who Can, Do; Those Who Can’t, Teach; Those Wanting to Be My Expert, Do and Teach!

It’s obvious that you want to find an expert who has done similar work before and has the references to confirm it. Supporting documentation can be in the form of scholarly articles, prepared client reports, and documents submitted to the court. You want to read through these documents to make sure the information is presented clearly, that a structured workflow was followed, and the results are supported by iterative testing. You also want to make sure that throughout the expert’s career, she has been consistent in her work. Prior publications represent a minefield for prior inconsistent opinions and will likely be used by opposing counsel to discredit your expert

You also want to find an expert who can clearly explain the craft. Most experts are used to operating in a highly specialized academic community with shared foundational knowledge and common vocabulary. A good expert needs to be a teacher at heart. She should enjoy educating others by explaining complex principles in simplified terms.

Have the expert walk you through one of her reports. Make sure she can detail in basic vocabulary each step that was taken, why choices were made, and how the outcome was determined. For any part of the process that requires foundational knowledge, such as statistical sampling, she should be able to break down the process enough that the user can follow along and then return to the bigger picture. Be sure to ask questions, keeping a close eye to make sure she does not appear frustrated or inconvenienced.

Our Catalyst Consulting team of linguists, statisticians, attorneys, and technical experts has been helping clients construct repeatable and defensible search methodologies since 2008. For assistance with your case, or to find out more on selecting the perfect expert, be sure to contact them at consulting@catalystsecure.com.

Filed Under: Case law, Search, Uncategorized Tagged With: ,

After Plaintiff Takes Sledgehammer to Computer, Case Dismissed for Spoliation

by Jim Eidelman | December 6, 2012

Could you hear me laughing from down the hall?

The plaintiff in an employment case, when ordered to turn over his computers for inspection, destroyed all evidence.

He protested that the evidence was “irrelevant,” but the judge wouldn’t buy that.

Among the more interesting aspects:

  1. The plaintiff first wiped the hard drive of his failing desktop, took a sledgehammer to the hard drive and to the computer, and then threw them both in the landfill.
  2. The plaintiff also installed the programs Evidence Eliminator and CCleaner and removed all evidence from his laptop.
  3. All of this happened after he retained counsel, who told him he must preserve all emails and other documents.
  4. The plaintiff’s wiping of data from the laptop occurred a few days after the magistrate ordered him to submit it for inspection within seven days.
  5. In an email, the plaintiff told counsel that if the court ordered him to turn over the laptop, he would copy the data to a CD and wipe the hard drive.  According to the findings of fact, “At the conclusion of the e-mail he jokes that ‘an electrical surge just fried my computer and a 50 pound anvil fell over and landed on it’ and asks ‘what penalties [he would] suffer from a contempt of court citation.’ “

I was laughing out loud as I read this, but neither the magistrate nor the district judge was amused.  The plaintiff’s case was thrown out, and he was ordered to pay the defendant’s costs and attorneys’ fees.

The case is Taylor v. The Mitre Corp., No. 1:11-cv-1247, 2012 WL 5473573 (E.D. Va. Nov. 8, 2012) adopting recommendations of Taylor v. Mitre Corp., No. 1:11-cv-01247 (LO/IDD), 2012 WL 5473715 (E.D. Va. Sept. 10, 2012)

Thanks to K&L Gates for calling attention to this case on its Electronic Discovery Law blog.

Filed Under: Case law, Sanctions Tagged With: , ,

Discoverability of Social Media: Two Similar Cases Reach Opposite Results

by Bob Ambrogi | September 20, 2012

Given the popularity of Facebook, Twitter, blogs and the like, it is not surprising that social media are a frequent target of discovery requests. Neither is there any real dispute that, in the proper circumstances, one’s social media activity is discoverable. But what are the circumstances that justify production of social media communications and what limits, if any, apply?

Two recent and strikingly similar cases illustrate that courts are not in accord on the scope of social media discovery. On very similar facts–both involving claims of employment discrimination and emotional distress–the two courts reached very different outcomes on the extent to which they would require discovery of the plaintiff’s social media activity.

A Unique Challenge

The first of the two cases, Robinson v. Jones Lang LaSalle Americas, involved a claim of race discrimination. Jones Lang sought to compel discovery of several items, including all of Robinson’s email and text messages with current and former Jones Lang employees and all social media content involving Robinson since July 1, 2008, including photographs, videos and blogs, as well as Facebook, LinkedIn and MySpace content that revealed or related to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint.

In an opinion issued Aug. 29, U.S. Magistrate Judge Paul Papak in Oregon allowed the motion to compel. He began his opinion by noting that, although Jones Lang had categorized its request for social media content as distinct from its request for email and text message, “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”

He then went on to discuss the case of  E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010), which he described as “the most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress.” He quoted this passage from Simply Storage:

It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.

That case recognized, Judge Papak wrote, “that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff s allegations of the severity of that distress.”

For that reason, Judge Papak entered an order compelling plaintiff Robinson to produce:

  • Any email or text messages that she sent to, received from, or exchanged with any current and former employee of Jones Lang, as well as messages forwarding such messages.
  • Any online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context.

Although he phrased this first part of his order broadly, he did include additional language to limit the scope of production. He required plaintiff to produce these communications only insofar as they reveal, refer or relate to:

  • Any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or
  • Events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Discovery of social media communications presents a unique challenge, Judge Papak suggested in concluding his order. “It is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production,” he wrote. “Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court.”

Vague and Overbroad

Just a week after Judge Papak issued his order in Jones Lang, U.S. Magistrate Judge Suzanne H. Segal, sitting in U.S. District Court in Los Angeles, addressed a similar motion to compel in Mailhoit v. Home Depot USA, Inc., another employment discrimination case in which the plaintiff alleged mental and emotional distress. Here, Home Depot sought to compel plaintiff to produce:

  1. Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the date the discrimination was alleged to have started) through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of plaintiff, as well as communications by or from plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.
  2. Third-party communications to plaintiff that place her own communications in context.
  3. All social networking communications between plaintiff and any current or former Home Depot employees, or which in any way refer or pertain to her employment at Home Depot or her lawsuit.
  4. Any pictures of plaintiff taken during the relevant time period and posted on plaintiff’s profile or tagged or otherwise linked to her profile.

In responding to the motion, the plaintiff acknowledged that social media communications are discoverable when relevant, but she objected to these requests as overbroad. Defendant seeks “to rummage through the entirety of [plaintiff's] social media profiles and communications in the hope of concocting some inference about her state of mind,” she argued.

Consistent with other courts, Judge Segal began her analysis by recognizing that social networking site content (“SNS content,” as she referred to it) is subject to discovery. However, to be in accord with the Federal Rules of Civil Procedure, discovery requests for social networking communications must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with reasonable particularity, she said.

Turning to Home Depot’s requests for production, Judge Segal concluded that all but one of them failed to satisfy the reasonable particularity requirement. With regard to the first request for all social networking “profiles, postings or message,” Judge Segal explained:

Plaintiff has placed her emotional state at issue in this action and it is conceivable that some SNS communications may support or undermine her claims of emotional distress. Nonetheless, the extremely broad description of the material sought by this category fails to put a “reasonable person of ordinary intelligence” on notice of which specific documents or information would be responsive to the request, and therefore fails to satisfy Rule 34(b)(1)(A)’s requirement that production requests be stated with reasonable particularity.

She goes on to note that the request, insofar as it broadly covers communications relating to plaintiff’s emotions, could require plaintiff to produce messages of doubtful relevance, such as a posting stating, “I hate it when my cable goes out,” or something she posted while watching a football game.

As to Home Depot’s second request for “third-party communications,” this also fails for vagueness, Judge Segal concluded. “Category 2 is entirely predicated on Category 1 and fails for the same vagueness concerns discussed above,” she explained.

Last, Judge Segal denied Home Depot’s request for any pictures of plaintiff posted to social media on the grounds that it was overbroad. “Defendant fails to make the threshold showing that every picture of Plaintiff taken over a seven-year period and posted on her profile by her or tagged to her profile by other people would be considered relevant under Rule 26(b)(1) or would lead to admissible evidence,” she reasoned.

The one request Judge Segal enforced was for plaintiff’s social networking communications with current or former Home Depot employees. This request “adequately places Plaintiff on notice of the materials to be produced and is reasonably calculated to lead to the discovery of admissible evidence,” she said.

Contrasting Outcomes

The contrast in outcomes between these two cases is perhaps best illustrated by a footnote in the Home Depot case. In footnote 3 of her opinion, Judge Segal states:

The Court acknowledges that Categories 1, 2 and 4 [of defendant's production requests] are closely modeled after three categories of SNS communications that the court in Simply Storage Mgmt. ordered produced.

Simply Storage, you will recall, is the opinion on which Judge Papak relied in the Jones Lang case. In fact, Judge Papak’s order to compel closely tracks the Simply Storage order to compel. As Judge Segal acknowledges, Home Depot’s requests for production likewise closely tracked this very same language. But what was considered appropriate in Simply Storage and Jones Lang was deemed vague and overbroad in Home Depot.

So we circle back to where we began. Here we have two strikingly similar cases, decided within a week of each other, involving nearly identical requests for production of social media communications. In one, the motion to compel was allowed. In the other, it was denied.

Despite their different outcomes, the two cases teach a common lesson, I think. Even in allowing the motion in the first case, Judge Papak noted that discovery of social media communications presents a unique challenge and he urged counsel on both sides to use good faith in interpreting the limits of his order. In this sense, he further paralleled the Simply Storage ruling, where the court recognized that the categories of production it was enforcing were not drawn “with the precision litigants and their counsel typically seek” and urged counsel to carry out its order in good faith.

The lesson, then, is to tailor requests for production of social media communications as precisely as possible. In each of these recent cases, the courts were concerned with finding the balance between identifying discoverable evidence and avoiding undue burdens. To the extent counsel can formulate requests that enable the court to realize that balance, the more likely their requests are to be enforced.

Filed Under: Case law, Court rules Tagged With: ,

The Next Big Predictive Coding Case that Wasn’t

by Bob Ambrogi | August 30, 2012

The case that many believed might be the next big bang in predictive coding jurisprudence instead has ended with barely a whimper.

As I noted here last month, in the wake of Magistrate Judge Andrew J. Peck’s ruling in Da Silva Moore v. Publicis Groupe affirming the use of predictive coding, many in the e-discovery field turned their attention to Kleen Products LLC v. Packaging Corporation of America, believing that it might be the Next Big Case on predictive coding.

The plaintiffs in Kleen Products had asked U.S. Magistrate Judge Nan Nolan to require the defendants to use predictive coding and Judge Nolan had conducted two days of evidentiary hearings on the request as well as several status conferences.

Although the case continues on, predictive coding is off the table, at least for the time being. Last week, Judge Nolan approved a stipulation submitted by the parties in which plaintiffs withdrew their demand to apply predictive coding to any documents relating to any request for production filed prior to Oct. 1, 2013.

As to any requests for production filed after that date, the parties stipulated that they will meet and confer regarding the appropriate search methodology. “If the parties fail to agree on a search methodology,” the stipulation says, “either party may file a motion with the Court seeking resolution.”

That suggests that we may not have heard the last of Kleen Products in the context of computer-assisted search. But with any further possible rulings on the issue well over a year away, we can safely write it off as the next big case.

Filed Under: Case law, Predictive Ranking, Search, Uncategorized Tagged With: , ,

Court Orders Counsel to Disclose E-Discovery Search Strategy

by Bob Ambrogi | August 28, 2012

Out of concern that counsel may not have sufficiently supervised their client’s production of electronic documents, a federal judge in New Mexico has ordered the attorneys to disclose the search strategy their client used to identify responsive documents. In so ruling, the judge relied on the federal rule that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Addressing motions to compel discovery in the case of S2 Automation LLC v. Micron Technology, U.S. District Judge James O. Browning ruled that S2 Automation would have to provide to Micron “its search strategy for identifying pertinent documents, including the procedures it used and how it interacted with its counsel to facilitate the production process.”

The judge based his ruling on Federal Rule of Civil Procedure 26(g), which requires that discovery responses must be signed by attorneys who must certify that the response “is complete and correct as of the time it is made.” Judge Browning concluded that this certification obligation is analogous to the certification required under Fed.R.Civ.P. 11 and that case law interpreting Rule 11 applies to Rule 26(g).

Applying that case law to the discovery context, Judge Browning said that Rule 26(g) imposes an obligation on the attorney who signs the discovery response to conduct “a reasonable inquiry into the facts and law supporting the pleading.” He went on to explain:

Accordingly, it can become necessary to evaluate whether an attorney complied with his rule 26(g) obligations and to evaluate the strategy an attorney used to provide responsive discovery, with relevant circumstances including: (i) “[t]he number and complexity of the issues”; (ii) “[t]he location, nature, number and availability of potentially relevant witnesses or documents”; (iii) “[t]he extent of past working relationships between the attorney and the client, particularly in related or similar litigation”; and (iv) “[t]he time available to conduct an investigation.” 6 J. Moore, Moore’s Federal Practice, § 26.154[2][a], at 26-615 (3d ed. 2012). Consequently, the analysis in which courts must engage to evaluate whether a party’s discovery responses were adequate is often a fact-intensive inquiry that requires evaluation of the procedures the producing party adopted during discovery.

‘Not Proper for Counsel to Sit Back’

The issue came before the judge after Micron’s attorneys became aware that S2′s counsel may not have worked with their client sufficiently during the discovery process and may have failed to provide a number of responsive documents. They became aware of that during a discovery conference between the parties, which followed a deficiency letter Micron sent S2 detailing shortcomings in S2′s production. A sworn declaration from one of Micron’s attorneys detailed what allegedly happened during that conference:

During that call, we discussed the April 25 deficiency letter and Micron’s request that S2 supplement its production. Counsel for S2 stated that he had not yet reviewed the letter in detail. We then discussed the format for production of S2′s documents. Counsel stated that he was not aware that S2 had separated attachments from e-mails, that he had delegated the process of gathering documents to S2, and that he was generally unaware of the manner in which S2 had provided the documents. Counsel also stated that he was unsure what protocol S2 followed to locate responsive documents.

In its motion to compel, Micron argued that “it is not proper for counsel to sit back and allow the client to search for documents without active direction and participation by counsel; to the contrary, counsel must be actively involved in the search to ensure that all responsive documents have been located, preserved, and produced.” The approach taken by S2′s counsel violated their obligations under Rule 26(g), Micron asserted.

S2′s attorneys denied that they had failed to supervise the discovery process, asserting that “nothing could be further from the truth” and that they had “met with the client on multiple occasions during the discovery process in order to organize and respond to discovery.”

Despite S2′s protestations, Judge Browning wrote that Micron’s sworn declaration caused him to be concerned about the adequacy of S2′s strategy for responding to discovery requests. “The … Declaration suggests that S2 Automation’s counsel were not working closely with their client during the document-production process,” he said. “Without some information about the search strategy S2 Automation used to provide responsive documents to requests for production, neither the Court nor Micron Technology can have a full understanding of the adequacy of S2 Automation’s search strategy.”

For this reason, Judge Browning concluded that it was appropriate for him to order S2 to provide to Micron its search strategy for identifying pertinent documents. His order directed S2 to include explanations of the procedures it used and how it interacted with its counsel to facilitate the production process.

What Can We Learn from this Case?

This case serves as a reminder that the lawyer who signs a discovery response has a direct obligation under Rule 26(g) to ensure that the response is complete and correct. As Judge Browning indicated, the key inquiry is whether the lawyer who signed the response “conducted a reasonable inquiry into the facts and law supporting the pleading.”

In this case, the judge’s uncertainty about whether the lawyers lived up to that obligation resulted in his order that their client explain its search strategy. In appropriate cases, however, Rule 26(g) also authorizes courts to impose sanctions on the lawyer and the client. “The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation,” the rule says.

Filed Under: Case law, Sanctions, Search Tagged With: , , ,

Federal Court Affirms Judge Peck’s Predictive Coding Order

by Bob Ambrogi | April 26, 2012

Judge Carter

When last we left the case of Da Silva Moore v. Publicis Groupe–the groundbreaking case in which U.S. Magistrate Judge Andrew J. Peck issued the first judicial opinion to endorse the use of computer-assisted review and predictive coding–it was headed for review by U.S. District Judge Andrew L. Carter Jr. Now, thanks to a heads-up from Evan Koblentz at Law Technology News, we learn that Judge Carter has issued his ruling and has adopted Judge Peck’s opinion.

“The Court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software,” Judge Carter wrote in an opinion filed today.

In challenging Judge Peck’s order, the plaintiffs had argued that he had mischaracterized and confused the issue of whether they had consented to the use of predictive coding. Judge Carter concluded that any such confusion was immaterial.

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

Plaintiffs also challenged Judge Peck’s order on the ground that predictive coding is not a reliable method. Judge Carter ruled that this issue is also premature. As the litigation continues, if the parties believe the predictive coding software is flawed or that the process produces incomplete results, they can raise their concerns with Judge Peck and ask him to reconsider, Judge Carter noted. “To call the method unreliable at this stage is speculative.”

There simply is no review tool that guarantees perfection. The parties and Judge Peck have acknowledged that there are risks inherent in any method of reviewing electronic documents. Manual review with keyword searches is costly, though appropriate in certain situations. However, even if all parties here were willing to entertain the notion of manually reviewing the documents, such review is prone to human error and marred with inconsistencies from the various attorneys’ determination of whether a document is responsive. Judge Peck concluded that under the circumstances ofthis particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The Court does not find a basis to hold that his conclusion is clearly erroneous or  contrary to law.

As to that secondary issue I mentioned in an earlier blog post–whether Rule 702 and Daubert apply to a court’s acceptance of a predictive-coding protocol–Judge Carter made short work of that. In a footnote, he wrote: “The Court adopts Judge Peck’s analysis of Rule 26(g) and Fed. R. Evidence 702 for similar reasons provided in his written opinion.”

Thus, Judge Peck’s predictive coding order has stood its ground and, with Judge Carter’s adoption of his reasoning, the use of predictive coding has taken another giant step towards the mainstream.

Filed Under: Case law, Predictive Ranking, Uncategorized Tagged With: , ,
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