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Doug Austin

Skip the HASH When Deduping Outlook MSG Files – eDiscovery Best Practices

As we discussed recently in this blog, Microsoft® Outlook emails can take many forms.  One of those forms is the MSG file extension, which is used to represent a self-contained unit for an individual message “family” (email and its attachments).  MSG files can exist on your computer in the same folders as Word, Excel and other data files.  But, when it comes to deduping those MSG files, the approach to do so is typically different.

A few years ago, I was assisting a client and collecting emails from their email archiving system for discovery, outputting the selected emails to individual MSG files (per their request).  Because this was an enterprise-wide search of email archives, the searches that I performed found the same emails again and again in different custodian folders.  There was literally hundreds of thousands of duplicate emails in this collection.  Of course, this is typical – anytime you send an email to three co-workers, all four of you have a copy of the email (assuming none of you deleted it).  If the email is responsive and your goal is to dedupe across custodians, you only want to review and produce one copy, not four.

However, had I performed a HASH value identification of duplicates on those output MSG files, I would find no duplicates.  Why is that?

That’s because each MSG file contains a field which stores the Creation Date and Time. Because this value will be set at the date and time the MSG is saved, two emails with otherwise identical content will not be considered duplicates based on the HASH value.  Remember how “drag and drop” sets the Creation Date and Time of the copy to the current date and time?  The same thing happens when an MSG file is created.

Hmmm, what to do?  Typically, the approach for MSG files is to use key metadata fields to identify duplicates.  Many processing vendors use a typical combination of fields that consist of: From, To, CC, BCC, Subject, Attachment Name, Sent Date/Time and Body of the email.  Some use those fields only on MSG files; others use it on all emails (to dedupe individual emails within MSG files against those same emails within an OST or a PST file).

So, if you’re hungry to eliminate duplicates from your collection of MSG files, skip the HASH and use the metadata fields.  It’s much more (ful)filling.

So, what do you think?  Have you encountered any challenges when it comes to deduping emails?  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.

When Lawyers Get Sued, They Have Preservation Obligations Too – eDiscovery Case Law

In Distefano v. Law Offices of Barbara H. Katsos, PC., No. CV 11-2893 (JS) (AKT) (D. ED NY Mar. 29, 2013), New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

The plaintiff alleged professional negligence by the defendant related to her representation of his franchise business for Cold Stone Creamery stores.  During a Discovery Status Conference, it was revealed that the defendant had gotten rid of her computer before the litigation began, as she noted in her affidavit that she was advised by a third-party individual who fixed her office computers that they could not be repaired.  As she used AOL for email correspondence, she contacted AOL “to inquire if emails from several years ago could be recovered by AOL”, but was told that they “could not recover emails from several years ago for the stated email address”.  After receiving the defendant’s affidavit, the plaintiff filed a motion for spoliation.

With regard to the defendant’s duty to preserve information related to her representation of the plaintiff, Judge Tomlinson stated:

“The Court concludes that Katsos’ duty to preserve documents arose as early as late February 2009, when Michael DiStefano terminated the attorney-client relationship between Plaintiffs and Defendants.”  On February 24, 2009, the plaintiff send the defendant a letter terminating the representation “immediately” and stated that he would “communicate with you further, in writing, so as to explain the reasons why I am discharging you.”  Noting that the “language of Michael DiStefano’s letter gives the appearance that Distefano was not satisfied with Katsos’ work”, Judge Tomlinson also noted that “[i]n assessing whether litigation was reasonably foreseeable in these circumstances, the Court cannot ignore the fact that Katsos is an attorney and should have been attuned to the prospect of litigation.”

To determine the defendant’s culpable state of mind, Judge Tomlinson ordered a hearing on May 13 for the defendant to “be prepared to testify regarding, among other things, the following areas:

  1. Katsos’ normal document preservation/retention/deletion/destruction practices;
  2. the number of computers utilized in her office prior to 2009, when the computers were purchased, and the specific circumstances surrounding the breakdown of each of those computers;
  3. the service agreements for those computers and the vendor(s) used;
  4. whether Katsos maintained a network server;
  5. AOL’s automatic deletion policies to the extent they were explained to Katsos;
  6. a complete list of every email address used by Defendant Law Offices of Barbara H. Katsos, PC and Defendant Barbara Katsos or her staff to communicate with Plaintiffs;
  7. Katsos’ attempts to gain access to the email accounts used by her paralegals and interns referenced in Paragraph 5 of Katsos Aff. II and page 16 of Plaintiffs’ Memorandum;
  8. the document preservation steps undertaken by Katsos when Plaintiffs instituted an adversary proceeding against her in March of 2010;
  9. the retention and utilization of the services of Jan Sloboda.” (the third-party individual that advised her to replace her computers)

The plaintiffs were also ordered to identify “general categories of documents that have been adversely affected” to help determine the relevance of the data in question and were permitted to question the defendant at the hearing.

So, what do you think?  Was this an appropriate course of action to determine whether sanctions are appropriate?  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.

Image is Everything, But it Doesn’t Have to Cost Anything – eDiscovery Best Practices

Do you remember this commercial?  Can you believe it’s 23 years old?

Let’s recap.  So far, in our discussion of free utilities for collection of data for eDiscovery, we’ve discussed the pitfalls of using drag and drop, the benefits of Robocopy (illustrating with the same example copy) and the benefits (and pitfalls) of Richcopy for targeted collection.  But, are there any free tools that will enable you to perform a bit-by-bit forensic image copy that includes deleted files and slack space data?  Yes, there is.

Forensic Toolkit (FTK) is a computer forensics software application provided by AccessData.  The toolkit includes a standalone disk imaging program called FTK Imager.  FTK Imager is a free tool that saves an image of a hard disk in one file or in segments that may be reconstructed later. It calculates MD5 or SHA-1 hash values of the original and the copy, confirming the integrity of the data before closing the files.

With FTK Imager, you can:

  • Create forensic images of local hard drives, floppy diskettes, Zip disks, CDs, and DVDs, entire folders, or individual files from various places within the media.
  • Preview files and folders on local hard drives, network drives, floppy diskettes, Zip disks, CDs, and DVDs – including files located in container files such as ZIP or RAR files.
  • Preview the contents of forensic images stored on the local machine or on a network drive.
  • Mount an image for a read-only view that leverages Windows Explorer to see the content of the image exactly as the user saw it on the original drive.
  • Export files and folders from forensic images.
  • See and recover files that have been deleted from the Recycle Bin, but have not yet been overwritten on the drive.
  • Create MD5 or SHA-1 hashes of files and generate hash reports for regular files and disk images (including files inside disk images) that you can later use as a benchmark to prove the integrity of your case evidence. When a full drive is imaged, a hash generated by FTK Imager can be used to verify that the image hash and the drive hash match after the image is created, and that the image has remained unchanged since acquisition.

Like all forensically-sound collection tools, it retains the file system metadata (and the file path) and creates a log of the files copied.  You can also provide Case Number, Evidence Number, Unique Description, Examiner, and any Notes for tracking purposes to aid in chain of custody tracking.

To download FTK Imager, you can go to the AccessData Product Downloads page here.  Look for the link for FTK Imager in “Current Releases” (it’s currently the seventh item on the list) and open the folder and select the current version of FTK Imager (currently v3.1.2, released on 12/13/12).

Next week, we will begin to discuss how to use FTK Imager to preview files, create forensic images, recover deleted files and use hash values to validate your image.

So, what do you think?  Have you used FTK Imager as a mechanism for eDiscovery collection?  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 Rejects Defendants’ Claim of Undue Burden in ERISA Case – eDiscovery Case Law
 

In the case we covered on Monday, the court ruled for the defendant in their effort to avoid what they felt to be undue burden and expense in preserving data.  Here is another case where the defendant made an undue burden claim, but with a different result.

In the case In re Coventry Healthcare, Inc.: ERISA Litigation, No. AW 09-2661 (D. Md. Mar. 21, 2013), Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

In this Employee Retirement Income Security Act (ERISA) class action, a discovery dispute arose when the defendants filed a motion to curtail the relevant time frame for discovery due in part to the burden it would impose on them. The plaintiffs sought discovery from February 9, 2007 to October 22, 2008; the defendants asked the court to limit it to January 1, 2008 to June 30, 2008.

The defendants relied on Rule 26(b)(2)(C)(iii) to establish that the burden of producing the data outweighed any benefit it offered the plaintiffs. Judge Schulze noted that the “party seeking to lessen the burden of responding to electronic records discovery ‘bears the burden of particularly demonstrating that burden and of providing suggested alternatives that reasonably accommodate the requesting party’s legitimate discovery needs’”.

Here, the defendants claimed they tested the plaintiffs’ proposed search terms on the custodians’ data and hit 200,000 documents. They claimed it would cost roughly $388,000 to process, host, and review the data for responsiveness and privilege. However, the defendants did not suggest “any alternative measures that could reasonably accommodate Plaintiffs’ discovery needs other than negotiating more refined search terms.”

In response, the plaintiffs argued they had tried to collaborate with the defendants to “develop appropriate searches for ESI by limiting the searches to certain designated custodians” and by shortening the discovery period by three months.

Judge Schulze found that the narrowing of the discovery period would reduce the costs, and that “a clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege.” Finally, “[t]o further reduce any undue burden, Plaintiffs may need to refine their proposed search terms to narrow the pool of potentially relevant documents.”  With these options available, Judge Schulze found that the defendants had not met their burden to show that producing the evidence would be unduly burdensome.

So, what do you think?  Should the defendant’s request have been granted?  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.

Minnesota Implements Changes to eDiscovery Rules – eDiscovery Trends

Last week, we reported on potential amendments to the discovery provisions of the Federal Rules of Civil Procedure that could be adopted within the year.  States are busy with changes too.  One such state is Minnesota, which has amending its rules to emphasize proportionality, collaboration, and informality in the discovery process.

As reported by Brendan Kenny in Law Technology News (Minnesota Amends Civil E-Discovery Rules), on February 4, Minnesota’s Supreme Court adopted amendments to the Rules of Civil Procedure, scheduled to take effect on July 1 of this year. Notable were amendments to Rules 1 and 26, as follows:

  • Rule 1: To address proportionality concerns, the following was added to the existing rule: “It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues” by considering the “needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.”
  • Rules 26: Rule 26.02(b) was amended, requiring that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  Also, Rule 26.06 was amended to require the parties to “confer [on discovery] as soon as practicable — and in any event within 30 days from the initial due date for an answer”.

As discussed in the article, here are some other notable changes:

Rule 37.03 will authorize courts to sanction any party who does not disclose information or witnesses by

  1. Precluding the party from using that information or witness.
  2. Ordering the party to pay the other party’s “reasonable expenses.”
  3. Informing the jury of the party’s failure, or (4) imposing “other appropriate sanctions.”

Rule 37.06 allows the court to require a “party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure” to “participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26.06”.

Also, Rule 115.04 will allow courts to resolve motions to compel through an informal telephonic conference with the court, an option not previously in either Minnesota or federal court.

A link to the full set of amendments can be found here.

So, what do you think?  Has your state recently adopted any rules changes to address discovery?  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 Agrees with Defendant that Preserving 5 Terabytes of Data is Enough – eDiscovery Case Law

In United States ex rel. King v. Solvay, S.A., No. H-06-2662, 2013 U.S. Dist. LEXIS 30752 (S.D. Tex. Mar. 5, 2013), Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

In this False Claims Act, the plaintiffs, qui tam relators whose claims led to investigation by several state attorneys general, claimed the defendants engaged in off-label promotion of drugs, violated the anti-kickback statute, and retaliated against them.

The defendant, Solvay Pharmaceuticals, now doing business as Abbott Products (after Abbott acquired Solvay in 2010), filed a motion seeking a protective order from having to respond to the relators’ discovery requests about ongoing fraud, which it claimed were irrelevant to the claims in the lawsuit.

During the course of discovery, the company imposed a litigation hold and preserved more than 2,500 eMail backup tapes, more than 56,000 network share backup tapes, and roughly 5 terabytes of data on its network share drives—all dating from the 1990s through 2010 – and covering 89 custodians, both former and current employees. But the relators requested more. If the litigation hold were to expand to accommodate the relators’ requests, it would require the company to dedicate additional server space to store the data. Moreover, the company argued that it would cost at least $480,000 to process the eMails it was already preserving, and the review of those eMails would cost $2.3 million, excluding quality control, privilege review, and production costs. Adding the additional data from after Abbott acquired Solvay would drive these costs substantially higher. The relators objected, suggesting that the company’s “sweeping generalizations” about the potential burden were inaccurate. In the alternative, the relators agreed to an end date of December 31, 2012 or to depose witnesses to determine the appropriate cutoff.

Under Federal Rule of Civil Procedure 26(c)(1), courts can limit discovery to protect parties from undue burden or expense. Judge Miller agreed with the defendant that a few references that conduct was continuing “‘to the present’ in a 267-page complaint containing more than 768 paragraphs does not justify the burden and expense associated with unfettered discovery ‘to the present’ in a case in which discovery is already going to be incredibly expensive and time-consuming.” Although Judge Miller was willing to extend the relevant time frame to include some claims outside of the relators’ personal knowledge because the real party in interest was the United States, he was not willing to go so far as to permit the “generalized claims of ongoing conduct to form the basis for a fishing expedition.”  As a result, he granted the motion for a protective order, limiting the time frames for Solvay’s discovery obligations.

So, what do you think?  Was the judge right to limit the defendant’s discovery obligations?  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.

You Don’t Have to Be Rich to Use Richcopy – eDiscovery Best Practices

A couple of weeks ago, we discussed the pitfalls of using drag and drop for collecting files for eDiscovery and illustrated an example using a blog post that I wrote about a month ago in a Word document for the post Five Common Myths About Predictive Coding.  If you followed the steps along with one of your own files, you noticed that the resulting file appeared to have been modified before it was created, which reflects spoliation of the metadata during the copy process.

Last week, we discussed the benefits of Robocopy, how to access it via the command line prompt (if you have Windows Vista or later) and how to get it (if you don’t).  Then, we performed an example copy (using an Excel script I use to create the copy) and took a look at the results to show how the date metadata was preserved during the copy.  If you’d still like a copy of the Excel Robocopy script, feel free to request it by emailing me at daustin@cloudnincloudnine.comm.

If you want to be able to perform a forensically sound targeted collection, but would prefer a GUI based tool for performing the copy (instead of a command-line tool like Robocopy), then perhaps you should consider Richcopy.  RichCopy is a free computer utility program developed by Ken Tamaru of Microsoft to copy file directories.  It has some advantages, but also some pitfalls, to consider as a targeted copy and collection tool.

One of the benefits of Richcopy (in addition to the GUI interface) is that it copies several files simultaneously (“multi-threaded”), which can drastically reduce the time required for multi-gigabyte file copy operations (earlier versions of Robocopy didn’t support multi-threaded copying, but the current one does, with the /MT[:n] command).

Unfortunately, Richcopy has not been updated in nearly four years by the developer, so you may run into issues (for example, it apparently doesn’t handle file names longer than 255 characters) and, as a free utility, it’s not supported by Microsoft.  Also, Help doesn’t open up throughout much of the application, so getting additional information from the help file is not always easy.  Consider yourself warned.

You can download a copy of Richcopy from the link in this TechNet magazine article.  I did so, and performed the same copy of the Word document for the post Five Common Myths About Predictive Coding that I performed in the other cases.  Let’s see how Richcopy handled that file copy.

You’ll see below that the main form of Richcopy provides the ability to select the source and destination paths, and specify options (as indicated by the red box).  Once you have the parameters set, click the green “Go” button (as indicated by the red circle) to perform the copy.  Progress and logging information will appear in the two status windows below.

The Options button opens a dialog for specifying a variety of options, including copy parameters, thread counts, file attributes and error handling, files to be included and/or excluded (by name, extension or attributes, such as excluding system files) and logging.  As you’ll see below, I set the “files to be included” option to copy the example file I’ve been using in the other tests.

The result?  I did get a copy of the selected file which contained preserved file metadata (i.e., the Created date and the Accessed date reflect the original date and time when the file was created and last accessed).  However, it also copied empty folder for all of the folders underneath the source folder.  I couldn’t figure out how to turn it off and the aforementioned Help file issues didn’t enable me to identify a workaround.

If you absolutely require a GUI interface for free targeted file collection, Richcopy may be a better alternative than Robocopy, but not necessarily the best alternative.  Next week, we’ll begin discussing another free GUI alternative that not only supports targeted collection of files, but also supports bit-by-bit imaging to capture deleted files and slack space data!

So, what do you think?  Have you used Richcopy as a mechanism for eDiscovery collection?  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 Forces Defendant to Come to Terms with Plaintiff Search Request – eDiscovery Case Law

In Robert Bosch LLC v. Snap-On, Inc., No. 12-11503, (D. ED Mich. Mar. 14, 2013), Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform.  The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

The plaintiff filed a motion to compel the defendant to perform the following two search terms for discovery purposes (where “!” is a wildcard character):

  • (diagnostic! and test!), and
  • ([ECU or “electronic control unit”] and diagnostic!)

Under Fed. R. Civ. P. 34(a)(1)(A), a party must produce relevant documents and electronically stored information. While the defendant did not dispute that the search terms are relevant, they argued that the terms were so broad and commonly used in day-to-day business that searching the terms would be burdensome and result in overproduction by including large portions of their business unrelated to the case.  The defendant’s arguments were twofold:

  1. Overbroad: The defendant claimed that “the word ‘diagnostics’ is included in at least one custodian’s email signature and that ‘the vast majority of documents in Snapon’s Diagnostic Group include the word `Diagnostics,’ thereby effectively reducing the disputed terms to `test!’ and `(ECU or “electronic control unit”).’”
  2. More Appropriate Alternatives: The defendant contended that the term “diagnostic” would be sufficiently searched by already agreed upon searches which pair “diagnostic” with “more narrowly tailored conjunctive terms, such as ‘plug’ and ‘database,’ that are not as common as ‘test’ and ‘ECU.’” The defendant also claimed that the search terms were unnecessary because they agreed to run searches of all of the variations of the names of the accused products.

Judge Cleland stated that he found the defendant’s arguments “unpersuasive”, stating that “[e]ven though Snap-on has agreed to search all variations of the names of the accused products, the disputed search terms may uncover relevant documents that do not contain the accused products’ names. The court is not convinced that the terms “test” and “ECU” are significantly more common than “plug” and “database” such that searching (diagnostic! and plug) is reasonable but searching (diagnostic! and test!) is burdensome.”

Judge Cleland also suggested techniques “to limit any overproduction”, including not producing emails in which the term “diagnostic” was found only in the signature portion and using proximity connectors (agreed-upon with the plaintiff) in the searches.  He also recommended that the defendant “should communicate the proposed techniques to Bosch prior to running the searches” and that the “parties should discuss and agree upon the details of the techniques so that the searches are conducted without generating further motion practice on the matter.”

The judge, however, denied the plaintiff’s request for sanctions in the form of reimbursement of attorneys’ fees and expenses for filing the motion to compel, indicating that the defendant “has provided logical reasons for objecting to the disputed search terms”.

It’s interesting that the defendant didn’t provide document retrieval counts and try to argue on the basis of proportionality.  Perhaps providing the counts would reveal too much strategy?  Regardless, it seems that the wildcard search for “test” could be argued as potentially overbroad – there are 60 words in the English language that begin with “test”.  It looks like somebody is getting “wild” with wildcards!

So, what do you think?  Could the defendant have made a more effective argument, based on proportionality?  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.

Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected – eDiscovery Case Law

Is it possible to produce documents for discovery too early?  At least one plaintiff’s group says yes.

In the case In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), thhttps://cloudnine.com/ediscoverydaily/ralph-losey-of-jackson-lewis-llp-ediscovery-trends-part-1/e Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching.  Indiana District Judge Robert L. Miller, Jr. denied the request.

Defendant’s Discovery Efforts to Date

In this dispute over hip implant products, the defendant began producing documents in cases that were eventually centralized, despite (sometimes forceful) requests by plaintiffs’ counsel not to begin document production until the decision whether to centralize was made.  The defendant used keyword culling to reduce the universe of documents and attachments from 19.5 million documents to 3.9 million documents, and removing duplicates left 2.5 million documents and attachments. The defendant performed statistical sampling tests, with a 99 percent confidence rate, to determine that between .55% and 1.33% of the unselected documents would be responsive and (with the same confidence level) that between 1.37% and 2.47% of the original 19.5 million documents were responsive.  The defendant’s approach actually retrieved 16% of the original 19.5 million.  The defendant then performed predictive coding to identify responsive documents to be produced from the set of 2.5 million documents.

According to the order, the defendant’s eDiscovery costs “are about $1.07 million and will total between $2 million and $3.25 million.” {emphasis added}  The defendant “invited the Plaintiffs’ Steering Committee to suggest additional search terms and offered to produce the rest of the non-privileged documents from the post-keyword 2.5 million”, but they declined, “believing they are too little to assure proper document production”.

Plaintiffs’ Objections

The plaintiffs’ Steering Committee objected, claiming that the defendant’s use of keyword searching “has tainted the process”, pointing to an article which “mentioned unidentified ‘literature stating that linear review would generate a responsive rate of 60 percent and key word searches only 20 percent, and [the defendants in the case being discussed] proposed that predictive coding at a 75 percent responsive rate would be sufficient.’” {emphasis added}  They requested that the defendant “go back to its 19.5 million documents and employ predictive coding, with plaintiffs and defendants jointly entering the ‘find more like this’ commands.”  In response to the defendant’s objections that virtually starting over would cost additional millions, the Steering Committee blamed the defendant for spending millions on document production despite being warned not to begin until the cases had been centralized.

Judge’s Ruling

Noting that “[w]hat Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2)”, Judge Miller noted that “the Steering Committee’s request that Biomet go back to Square One…and institute predictive coding at that earlier stage sits uneasily with the proportionality standard in Rule 26(b)(2)(C).”  Continuing, Judge Miller stated:

“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 also rejected the Steering Committee’s position that the defendant can’t rely on proportionality arguments because they proceeded with document production while the centralization decision was pending: “The Steering Committee hasn’t argued (and I assume it can’t argue) that Biomet had no disclosure or document identification obligation in any of the cases that were awaiting a ruling on (or even the filing of) the centralization petition.”  As a result, he ruled that the Steering Committee would have to bear the expense for “production of documents that can be identified only through re-commenced processing, predictive coding, review, and production”.

So, what do you think?  Was the judge correct to accept the defendant’s multimodal approach to discovery?  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.

Changes to Federal eDiscovery Rules Could Be Coming Within a Year – eDiscovery Trends

As reported by Henry Kelston in Law Technology News (Are We on the Cusp of Major Changes to E-Discovery Rules?), another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  The United States Courts’ Advisory Committee on Civil Rules voted last week to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

Potential Revisions that Have Impact to Discovery Include:

  • Rule 26: Changes incorporate a limitation to the general scope of discovery allowed by Rule 26(b)(1) as to what is proportional to the needs of the case, measured by the cost-benefit calculus now required by Rule 26(b)(2)(C)(iii) that is currently used most often when a party moves to limit discovery.
  • Rules 30 and 31: Changes reduce the number of depositions (oral and written) allowed per side, from 10 to 5, and reduce the time limit for each deposition, from 7 hours to 6 hours.
  • Rule 33: Changes reduce the number of interrogatories permitted, from 25 to 15.
  • Rule 34: Amendment requires that objections to document requests be stated with specificity and include a statement as to whether any responsive materials are being withheld on the basis of the objection.
  • Rule 36: Implements a new limit of 25 requests for admission for each party, with requests to admit the genuineness of documents expressly exempted from the limit of 25.
  • Rule 37: The proposed amendment in Rule 37(e) is intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation, establishing a non-sanction category of measures a court may impose when it finds that a party failed to meet its preservation obligation, such as allowing additional discovery, requiring a party to recreate or obtain the information it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.  Rule 37(b)(2)(A) includes a “hotly debated” amendment that the court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

The proposed changes to Rule 37, in particular, appear to give producing parties more latitude when failing to meet their preservation obligation was not willful or in bad faith.  As the article notes, “if the standing committee approves the proposed amendments for publication at its meeting in early June, the amendments would be published for public comment soon thereafter. The public comment period for proposed rules normally lasts six months. The advisory committee, anticipating a high level of public interest in the proposals, plans to hold several days of public hearings in different cities around the U.S., with dates and locations yet to be announced.”

So, what do you think?  Are you pleased or concerned with the proposed amendments?  Please share any comments you might have or if you’d like to know more about a particular topic.

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