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Doug Austin

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Case Law

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

If Production is Small, Does that Mean ESI is Being Withheld? – eDiscovery Case Law

In American Home Assurance Co. v. Greater Omaha Packing Co., No. 8:11CV270 (D. Neb. Sept. 11, 2013), Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

The case arose from the sale of some raw beef trim by defendant (GOPAC) to the plaintiffs (Cargill), which the plaintiffs claimed was contaminated with the bacterium known as “E. coli 0157:H7.”  The defendants filed a counterclaim related to a New York Times article that allegedly contained false information supplied by the plaintiffs that caused the defendants to lose existing and potential customers.

Among the issues addressed in this ruling was a motion to compel from the plaintiffs for “the production of e-mails and other electronically stored information that have allegedly been withheld”.  Regarding the motion, Judge Strom noted that the plaintiff “has failed to identify a specific e-mail or electronic record that GOPAC is refusing to produce. Rather, Cargill argues that the small number of e-mails produced (25) evidences a lack of diligence in production.”  With regard to the size of the production, Judge Strom stated that “the Court cannot compel the production of information that does not exist.”

The defendant provided assurances that it had turned over all ESI that its searches produced and continues to supplement as it finds additional information, offering to search available sources using search terms provided by the plaintiff, but the plaintiff “has refused to supply any additional terms”.

So, Judge Strom gave the defendant a chance to show the extent of its discovery efforts, as follows:

“It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.”

Judge Strom gave the defendant until September 30 to disclose its sources and search terms.  Perhaps more to come…

So, what do you think?  Should the judge have done more or was this an appropriate first step?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet – eDiscovery Case Law

In Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR) (N.D. Cal. July 31, 2013), California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct.  The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Case Background

The plaintiff, a shareholder in pharmaceutical company IKOR, Inc. (“IKOR”), a filed suit against the defendant and two of its officers, Dr. James Canton and Dr. Ross W. Tye, accusing the defendant of misrepresentations to induce the plaintiff to invest, breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing. The defendant brought counterclaims for breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage.

In the motion to compel, the plaintiff sought to compel the defendants’ compliance with a prior court order to compel the production of all responsive documents as well as to compel production from Dr. Canton, who objected to several of Plaintiff’s discovery requests.  The plaintiff contended that Defendants’ document productions were incomplete and that they “failed to adequately search for all responsive electronic documents”, asserting that all three defendants had produced a total of only 121 emails, 109 of which were communications with the plaintiff (including only three pages in response to a request seeking all documents relating to the defendant’s communications with a company run by three of IKOR’s principals. The “dearth of responsive documents, as well as the lack of emails from at least one key individual”, caused the plaintiff to “raise concerns about the quality of Defendants’ document preservation and collection efforts” and express concerns about possible “evidence spoliation through the deletion of emails”. The plaintiff also contended that Dr. Canton waived his objections by failing to serve a timely response.

Judge’s Ruling

Judge Nyu agreed with the plaintiff’s, noting that “Given the paucity of documents produced by Defendants to date, as well as counsel’s own acknowledgment that Defendants’ productions have been incomplete, the court shares Plaintiff’s concerns about the inadequacy of Defendants’ search for responsive documents. Defense counsel has not been sufficiently proactive in ensuring that his clients are conducting thorough and appropriate document searches, especially in light of obvious gaps and underproduction. Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete.”  She also agreed with the plaintiff regarding Dr. Canton’s objections, since he “offered no reason for his late responses”.

Judge Nyu ordered the defendants to “produce all remaining responsive documents by no later than August 26, 2013”, noting that “if there are continuing problems with their document productions, the court will order them to retain the services of an e-discovery vendor”.  Judge Nyu also granted attorney’s fees for the plaintiff’s activities “as a result of Defendants’ conduct”, albeit at a reduced amount of $5,200.

So, what do you think?  Was the sanction warranted?   Should the judge have ordered the defendants to retain an eDiscovery vendor?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Need to Make Key Discovery Decisions? Build a Tree – eDiscovery Best Practices

There are several decisions that the lead attorney has to make when a new case is filed.  Decisions made early in the life cycle of a case can significantly affect how discovery is managed and how costly the discovery process can be for that case.  Decision trees are a mechanism that can help attorneys plan for discovery by enabling them to make decisions up front that can lead to more efficient management of the discovery process.

What is a Decision Tree?

A decision tree is a decision support tool that uses a tree-like graph or model of decisions and their possible consequences.  It is essentially a flowchart in which each internal node represents a test on an attribute, each branch represents outcome of that test and each leaf node represents the decision taken after computing all attributes.

Have you ever prepared an analysis at the outset of a case to estimate the probability of winning the case and determining whether to litigate or attempt to settle?  Then, you’ve probably prepared some sort of decision tree to make those decisions.  You probably looked at the probability of winning, probabilities of different award amounts, extrapolated the costs for litigating against the potential award amounts and used that to decide how to proceed.  Today’s graphic provides an example of what a decision tree, drawn as a flowchart, might look like to represent that process.

Uses of Decision Trees in Discovery

Decision trees identify the available alternatives to tackle a particular business problem and can help identify the conditions conducive to each alternative.  Issues in discovery for which a decision tree might be warranted could include:

  • Decide whether to outsource litigation support and discovery activities or keep them in-house;
  • Select an appropriate discovery solution to meet your organization’s needs within its budget;
  • Decide when to implement a litigation hold and determine how to comply with your organization’s ongoing duty to preserve data;
  • Determine how to manage collection procedures in discovery that identify the appropriate custodians for each type of case;
  • Decide whether to perform responsiveness and privilege review of native files or convert to an image format such as TIFF or PDF to support those review processes,
  • Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel.

In addition to promoting efficiency in the discovery process by planning up front, decision trees can also promote consistency in handling cases.  Decision trees are a great tool for walking through the logic of the decision making process, which reduces mistakes in the process by making the process more predictable and repeatable.

So, what do you think?  Does your organization use decision trees in your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

August Pop Quiz Answers! – eDiscovery Trends

Yesterday, we gave you a pop quiz for the topics we’ve covered in the past month.  If you’re reading the blog each day, these questions should be easy!  Let’s see how you did.  Here are the answers.

 

1.  Which of the following is NOT an eDiscovery Trailblazing Judge?:

 

A. Judy Sheindlin

B. Lee Rosenthal

C. Andrew Peck

D. Paul Grimm

While Shira Scheindlin is the eDiscovery trailblazing judge responsible for the Zubulake and Pension Committee decisions, Judy Sheindlin is the famous judge on the Judge Judy TV program.

 

2.  In which case, was a request to produce social media data denied “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”?:

 

A. Stooksbury v. Ross

B. Mali v. Federal Insurance Co.

C. Salvato v. Miley

D. Kwasniewski v. Sanofi-Aventis U.S. LLC

 

3.  For any malware found in files that you’re processing for eDiscovery, you can agree in the Rule 26(f) conference to:

 

A. Attempt to remove the malware with virus protection software

B. Isolate and log the infected files as exceptions

C. Either A or B

D. Neither A nor B

 

4.  What does a MinHash algorithm count?:

 

A. Shingles

B. Tiles

C. Logs

D. Bricks

 

5.  Which state recently issued a Rule 1 Task Force Update to create newly released guidelines for electronic data discovery?

 

A. Nebraska

B. Missouri

C. Arkansas

D. Kansas

 

6.  In which case was the defendant sanctioned with a default judgment for failing to comply with discovery obligations?

 

A. Stooksbury v. Ross

B. Mali v. Federal Insurance Co.

C. Salvato v. Miley

D. Kwasniewski v. Sanofi-Aventis U.S. LLC

 

7.  Where was the ILTA conference held this year?  Hint: it’s not pager friendly.

 

A. Bellagio

B. Aria

C. Caesars Palace

D. Mandalay Bay

If you saw The Hangover, you should know that Caesars Palace is not pager friendly…

 

8.  In which case was the plaintiff given a permissive adverse inference instruction which was upheld on appeal?

 

A. Stooksbury v. Ross

B. Mali v. Federal Insurance Co.

C. Salvato v. Miley

D. Kwasniewski v. Sanofi-Aventis U.S. LLC

 

9.  Which of the following is NOT a compressed format that can double in size (and cost) when expanded?

 

A. TXT

B. PST

C. ZIP

D. RAR

 

10. In Kwasniewski v. Sanofi-Aventis U.S. LLC, the plaintiff’s motion to compel regarding production format was:

 

A. Granted

B. Denied

C. Granted in part, but denied in part

D. None of the above

 

Bonus Question!  You’ll have to dig a bit for this one:

 

Three of the four cases below (like the case that is the answer to question #2 above) had requests for social media or personal data denied, but one had the request granted.  Identify the case where the request was granted.

 

A. Keller v. National Farmers Union Property & Casualty Co.

B. Rodriguez v. Nevada

C. Moore v. Miller

D. Mailhoit v. Home Depot

 

How did you do?  Next month, you’ll get another chance with September topics.  As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

August Pop Quiz! – eDiscovery Trends

Did you think we forgot to quiz you about last month’s topics?  Perish the thought!  Like we did in July (answers for July here), here is a pop quiz for the topics we covered in August.  If you’re reading the blog each day, these questions should be easy!  If not, we’ve provided a link to the post with the answer.  We’re that nice.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

 

1.  Which of the following is NOT an eDiscovery Trailblazing Judge?:

 

A. Judy Sheindlin

B. Lee Rosenthal

C. Andrew Peck

D. Paul Grimm

 

2.  In which case, was a request to produce social media data denied “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”?:

 

A. Stooksbury v. Ross

B. Mali v. Federal Insurance Co.

C. Salvato v. Miley

D. Kwasniewski v. Sanofi-Aventis U.S. LLC

 

3.  For any malware found in files that you’re processing for eDiscovery, you can agree in the Rule 26(f) conference to:

 

A. Attempt to remove the malware with virus protection software

B. Isolate and log the infected files as exceptions

C. Either A or B

D. Neither A nor B

 

4.  What does a MinHash algorithm count?:

 

A. Shingles

B. Tiles

C. Logs

D. Bricks

 

5.  Which state recently issued a Rule 1 Task Force Update to create newly released guidelines for electronic data discovery?

 

A. Nebraska

B. Missouri

C. Arkansas

D. Kansas

 

6.  In which case was the defendant sanctioned with a default judgment for failing to comply with discovery obligations?

 

A. Stooksbury v. Ross

B. Mali v. Federal Insurance Co.

C. Salvato v. Miley

D. Kwasniewski v. Sanofi-Aventis U.S. LLC

 

7.  Where was the ILTA conference held this year?  Hint: it’s not pager friendly.

 

A. Bellagio

B. Aria

C. Caesars Palace

D. Mandalay Bay

 

8.  In which case was the plaintiff given a permissive adverse inference instruction which was upheld on appeal?

 

A. Stooksbury v. Ross

B. Mali v. Federal Insurance Co.

C. Salvato v. Miley

D. Kwasniewski v. Sanofi-Aventis U.S. LLC

 

9.  Which of the following is NOT a compressed format that can double in size (and cost) when expanded?

 

A. TXT

B. PST

C. ZIP

D. RAR

 

10. In Kwasniewski v. Sanofi-Aventis U.S. LLC, the plaintiff’s motion to compel regarding production format was:

 

A. Granted

B. Denied

C. Granted in part, but denied in part

D. None of the above

 

Bonus Question!  You’ll have to dig a bit for this one:

 

Three of the four cases below (like the case that is the answer to question #2 above) had requests for social media or personal data denied, but one had the request granted.  Identify the case where the request was granted.

 

A. Keller v. National Farmers Union Property & Casualty Co.

B. Rodriguez v. Nevada

C. Moore v. Miller

D. Mailhoit v. Home Depot

 

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Conference Commentary on Ethics & Metadata – eDiscovery Best Practices

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), and some of TSC’s most recent contributions have been documented in this blog, including a commentary on proportionality (released in 2010), database principles (2011) and guidance for judges (2012).  Last month, TSC’s Working Group on Electronic Document Retention & Production (WG1) released it’s Second Edition of The Sedona Conference® Commentary on Ethics & Metadata.

As noted in the Preface of the Commentary, it “focuses on the ethical considerations surrounding the inclusion and review of metadata in the non-discovery and discovery contexts.”  It is also “intended to provide practical guidance for lawyers in protecting confidential metadata and to assist the judiciary in fashioning appropriate discovery orders.”

The Commentary was first published for public comment in March 2012. Several recent significant developments in the law – including recommendations adopted by the American Bar Association House of Delegates in August of last year from the ABA Commission on Ethics 20/20 to extend a lawyer’s duty of competence beyond simply competence in the law to competence in technology relevant to advising and representing clients, along with several dozen comments from WG1 members and the general public – spearheaded the updates.

In addition to the Preface and Conclusion, the Commentary is organized into the following sections:

  • Ethics and Metadata – Basic Concepts: Defines metadata and describes the different types of metadata (e.g., Application Metadata, File System Metadata, etc.) in detail, as well as describing a lawyer’s primary four ethical duties regarding metadata.
  • A Lawyer’s Ethical Obligations Regarding Metadata in the Non-Discovery Context: Discusses topics such as the ethical duties of a lawyer sending metadata or receiving metadata (generally), discussion of bar associations’ ethics opinions prohibiting data mining by the receiving lawyer and which jurisdictions generally do and don’t prohibit data mining and at least one bar association’s suggestion that a lawyer’s duties of competence and diligence require a search for and review of metadata included in electronically transmitted documents.
  • A Lawyer’s Ethical Obligations Regarding Metadata in the Discovery Context: Discusses how discovery is different (especially for the receiving lawyer, who is not only generally allowed, but also possibly mandated to search for and examine any produced metadata) and describes in detail the ethical duties of a lawyer producing metadata or receiving metadata in discovery.
  • Multijurisdictional Issues: Focuses on multijurisdictional conflicts in which a lawyer receives metadata in the non-discovery context.
  • Mitigation: Methods for mitigating metadata (when appropriate), including scrubbing, effective management of track changes, warning about electronic redactions and agreements and orders for handling metadata.

You can download a copy of the commentary here.  As always, you can visit the TSC website at to offer your comments on the public forum pages or submit feedback by emailing them at info@sedonaconference.org.

For more on metadata mining ethics, here’s a post from 2011 on an American Bar Association regarding the topic.

So, what do you think?  How do you handle metadata in your practice?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

SWOT Away Uncertainty in Your Discovery Practice – eDiscovery Best Practices

 

Understanding the relationships of your organization’s internal and external challenges allows your organization to approach ongoing and future discovery in a more strategic process.  A “SWOT” analysis is a tool that can be used to develop that understanding.

A “SWOT” analysis is a structured planning method used to evaluate the Strengths, Weaknesses, Opportunities, and Threats associated with a specific business objective.  That can be a specific project or all of the activities of a business unit.  It involves specifying the objective of the specific business objective and identifying the internal and external factors that are favorable and unfavorable to achieving that objective.  The SWOT analysis is broken down as follows:

  • Strengths: characteristics of the business or project that give it an advantage over others;
  • Weaknesses: are characteristics that place the team at a disadvantage relative to others;
  • Opportunities: elements that the project could exploit to its advantage;
  • Threats: elements in the environment that could cause trouble for the business or project.

“SWOT”, get it?

From an eDiscovery perspective, a SWOT analysis enables you to take an objective look at how your organization handles discovery issues – what you do well and where you need to improve – and the external factors that can affect how your organization addresses its discovery challenges.  From an eDiscovery perspective, the SWOT analysis enables you to assess how your organization handles each phase of the discovery process – from Information Governance to Presentation – to evaluate where your strengths and weaknesses exist so that you can capitalize on your strengths and implement changes to address your weaknesses.

How solid is your information governance plan?  How well does your legal department communicate with IT?  How well formalized is your coordination with outside counsel and vendors?  Do you have a formalized process for implementing and tracking litigation holds?  These are examples of questions you might ask about your organization and, based on the answers, identify your organization’s strengths and weaknesses in managing the discovery process.

However, if you only look within your organization, that’s only half the battle.  You also need to look at external factors and how they affect your organization in its handling of discovery issues.  Trends such as the growth of social media, and changes to state or federal rules addressing handling of electronically stored information (ESI) need to be considered in your organization’s strategic discovery plan.

Having worked through the strategic analysis process with several organizations, I find that the SWOT analysis is a useful tool for summarizing where the organization currently stands with regard to managing discovery, which naturally leads to recommendations for improvement.

So, what do you think?  Has your organization performed a SWOT analysis of your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Imagine if the Zubulake Case Turned Out Like This – eDiscovery Case Law

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign.  During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions.  Sound familiar?  Yep. Was her motion granted?  Nope.

In Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL (D. Nev. July 11, 2013), Nevada Magistrate Judge Peggy A. Leen ruled that the duty to preserve had not yet arisen when the plaintiff sent an internal email complaining she was being subjected to a hostile work environment and discrimination and that the failure to suspend its then-existing practice of automatically purging emails after 45 days did not warrant sanctions.

Here’s the timeline:

  • In March 2010, the plaintiff sent an email to a City of Las Vegas Personnel Analyst in the Employee Relations Division complaining she was being subjected to a hostile work environment and discrimination.
  • A chain of correspondence took place between April 6 and 7 of 2010 between the union representative assisting the plaintiff and a city employee.
  • In July 2010, the plaintiff alleged that the defendant constructively terminated her by forcing her to submit her resignation.
  • In September 2010, the plaintiff filed a complaint with the Nevada Equal Rights Commission.

The plaintiff and the defendant both produced the chain of correspondence from April 6 and 7 of 2010, but the defendant’s production omitted an email from the city employee (Dan Tarwater) to the union representative (Michael Weyland) commenting that “perhaps Weyland will have the good sense to have the Plaintiff retract her hostile work environment claim”.  Thus, the plaintiff filed a motion for sanctions.

The defendant indicated that their email system permanently deleted all messages after 45 days unless a sender or a recipient affirmatively saved the document to a folder, which didn’t happen with this particular email and also argued that “because Plaintiff has a copy of the email, any failure to disclose it is harmless”.

Judge Leen ruled that the “record in this case is insufficient to support a finding that the City was on notice Ms. Hixson contemplated litigation sufficient to trigger a duty to preserve electronically stored information by suspending its then-existing practice of automatically purging emails after 45 days.”  She also stated that “Plaintiff resigned July 15, 2010, and asserts she was constructively discharged. Nothing in the record suggests that on or before the date of her resignation, the Plaintiff threatened litigation, or informed the City that she had retained counsel about her employment disputes…By July 15, 2010, when Plaintiff resigned, the email system the City used as the time would have already purged Mr. Tarwater’s April 7, 2010, email unless it was saved to a folder.”

As a result, the court denied the plaintiff’s motion for sanctions.

So, what do you think?  Did the defendant have a duty to preserve the email and, if so, should the motion for sanctions have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.