Native Production or Tiff Production? Avoiding Sanctions

Native Production or Tiff Production? Avoiding Sanctions

Larsen v. Coldwell Banker Real Estate Corp., No. SACV 10-00401-AG (MLGx), 2012 U.S. Dist. LEXIS 12901 (C.D. Cal. Feb. 2, 2012)

Plaintiffs’ request for production of ESI in native format, with metadata intact was granted by the Court, despite Defendant’s having already produced the material in the common TIFF format.

Plaintiffs objected to defendant’s revised production, questioning the integrity of the native production based upon the following:

(1) MD5 file mismatches between the “digital fingerprints” produced by Defendants and the corresponding values of the produced native files; (2) mismatches between the file type extensions of the native files given by Defendants and the file type extensions of the produced native files themselves; (3) missing filesystem metadata, including the dates on which documents had been created and modified by their custodians and filepaths; (4) unverifiable filenames; and (5) mismatches of MD5 file calculations: .xls, .ppt and .html and the selection of appropriate fields to conduct email calculation matches.

Plaintiffs also asserted that the Defendants made an incomplete collection of data and that responsive information was being withheld. In addition, plaintiffs asserted that defendants had failed to retrieve data from an Oracle database containing relevant information that was used to oppose a class certification motion.

Plaintiffs requested that defendants’ detail the process used to process ESI under oath, that a neutral third party re-collect and process the ESI, and that Defendants provide access to the full Oracle database. Defendant responded that their production was adequate, and that the cost far outweighed the benefit from the requested relief.

The court utilized the following principle set forth in the second edition of the Best Practices Recommendations & Principles for Addressing Electronic Document Production from the Sedona Conference. Principle 7 states that the requesting party has the burden to demonstrate that the preservation and production of ESI by the producing party is inadequate. Principle 2 provides that the proportionality standard of Rule 26(b)(2)(C) should be used to guide the burden/benefit analysis for the reproduction of ESI.

The court determined that the plaintiffs was unable to show that the Defendant’s preservation and production of ESI was inadequate. The “isolated examples” cited by plaintiffs failed to demonstrate that defendants had not complied with the court’s order. Plaintiffs also failed to show that the deficiencies in the production “prevented them in any way from obtaining information relevant to a claim or defense under Fed. R. Civ. P. 26(b)(1).” Finally, the cost and burden to reproduce the production a third time “far outweighs any possible benefit to Plaintiffs”. The original production had required over 1000 man hours of review and cost hundreds of thousands of dollars. The court thereby denied plaintiffs’ requested remedies.

Information Overload, a Battle of Search Terms

Information Overload, a Battle of Search Terms

Custom Hardware Engineering & Consulting, Inc. v. Dowell, No. 4:10CV00653 ERW, 2012 U.S. Dist. LEXIS 146 (E.D. Mo. Jan. 3, 2012)

The court outlined a three step process for the parties to conduct discovery of ESI in accordance with Ameriwood Industries, Inc. v. Liberman, No. 4:06CV524-DJS, 2006 U.S. Dist. LEXIS 93380, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006). The first step required the parties to select a forensic expert to make mirror images of the defendants’ hard drives and recover available ESI from the hard drives. Next, the forensic expert would recover deleted information and make the data accessible to the Defendant in a reasonably searchable form. Lastly, Defendants’ counsel would review the information for relevance and responsiveness, supplement discovery responses where appropriate, and produce responsive and non-privileged data to plaintiffs’ counsel, along with a privilege log.

Plaintiff filed a motion to compel discovery, and Defendant responded that all responsive, non-privileged information had been disclosed. The court ordered both parties to develop and submit search terms but Defendants objected to plaintiff’s search terms on the grounds of overbreadth.

The court observed that although keyword searches were commonly used in electronic discovery, there were limitations and risks associated with using them. Citing the Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201 (2007), the court noted that keyword searches could “capture many documents irrelevant to the user’s query[,]” but at the same time “exclude common or inadvertently misspelled instances of the term[.]” Id. Therefore, “keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English (as well as all other languages).” Id.

Responding to defendants’ objection that plaintiff’s list contained common terms which would produce too many results, the court found that defendant’s had produced no evidence to support their claim, citing Rule 26(b)(2)(B)’s requirement that the party objecting to the discovery of ESI “must show that the information is not reasonably accessible because of undue burden or cost.”. Defendants’ objection that privileged information would be produced was rebutted by the fact that defendants could produce a privilege log. Finally, defendants’ contention that some of plaintiff’s terms would produce irrelevant information was merely a conclusory statement.

On the other hand, defendants’ assertion that an exact match between the terms’ phrasing, capitalizations, or both, was “problematic and inappropriate.” Misspellings or variations of the terms would be missed. The court found that under Rule 26(b), whether information was discoverable did not depend on the existence of an exact match in capitalization or phrasing—defendants’ proposal would prevent plaintiff from obtaining discoverable information. The court ordered that plaintiff’s search terms be used.

Counsel’s failure to search archived emails results in monetary sanctions

Counsel’s failure to search archived emails results in monetary sanctions

In re A&M Florida Properties II, 2010 Bankr. LEXIS 1217 (Bankr. S.D.N.Y, Apr. 7, 2010)

Plaintiff’s counsel agreed to have Plaintiff conduct a “company-wide” search without a full understanding of Plaintiff’s email system. Counsel failed to realize that employees had the ability to move emails from their inboxes into archive folders on their local machines and regularly did so. Deleted items were also moved into a deleted items folder on the system.

While preparing for a deposition, Defendants asked for the results of the “company-wide” search, and Plaintiff responded by producing 28 emails. Defendant brought a motion detailing Plaintiffs  failure and the parties agreed to hire a forensic expert. The expert searched live inboxes on the server because neither the expert nor Plaintiff’s counsel was aware of the existence of archive folders on individual machines. Defendant located emails within its own corpus of data which should have been produced by Plaintiff and requested a status conference with the court to discuss possible spoliation sanctions, intentional destruction of evidence.

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If you could change any rule of federal procedure, what would it be, and why?

If you could change any rule of federal procedure, what would it be, and why?

The University of Denver Law Review recently published an issue consisting of articles responding to the question, “If you could change any rule of federal procedure, what would it be, and why?”

Several authors took up the charge by addressing e-discovery, while the a few articles were focused on pleadings, and offers of judgment. The e-discovery articles include a piece by the directors of the Electronic Discovery Institute titled “Mandating Reasonableness in a Reasonable Inquiry”; a short essay by practitioner Daniel Girard titled “Limiting Evasive Discovery: A Proposal for Three Cost-Saving Amendments to the Federal Rules”; and an article from two Denver area practitioners titled “Proportional Discovery: Making it the Norm, Rather than the Exception.” The theme seems to center around making E-discovery less expensive.

Other notable contributions include a piece from Judge Lee Rosenthal, Chair of the Judicial Conference Committee on Rules of Practice and Procedure (whose contribution also mentions e-discovery); Judge Mark Kravitz, Chair of the Civil Rules Advisory Committee; an article from the directors of the Institute for the Advancement of the American Legal System; and contributions from Professors Robert Bone, Stephen Subrin, A. Benjamin Spencer, and Jeffrey Stempel.

The articles can currently be found in the Current Issues section of the Law Review’s web site, located here (note that this link may soon become outdated.)

Third party and requestor ordered to share costs of production from database created from backup tapes

Third party and requestor ordered to share costs of production from database created from backup tapes

Universal Delaware, Inc. v. Comdata Corp., 2010 U.S. Dist. LEXIS 32158 (E.D. Pa. Mar. 31, 2010)

Plaintiff voluntarily dismissed a third party without prejudice reserving a right to amend and rename the third party, while tolling the statute of limitations. The parties stipulated that the third party would preserve relevant evidence, respond in good faith to reasonable discovery requests, and would not object to discovery requests as a non-party for the purpose of delaying production past the deadline for amending the complaint.

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