News & Developments
Predictive Coding and Technology-Assisted Review: Hype or Need?
Over the last few years, predictive coding has led the way as a hot topic. Recently the new buzzwords have been technology-assisted review and computer-assisted review.
While these are nice words to throw around, questions arise: How many cases have any of these been applied and what are the metrics of savings and time to the client? How many cases actually require the use of these items?
I can recall that this was the way of future document review, but we find only a few years later that predictive coding has taken a long time to grow. This could be from various factors: hype information about the benefits and risks, though it could be an important part of your e-discovery toolkit but you will need to determine whether predictive coding is right for your particular case and weight the cost savings from a finical point, compare what the cost would be to implement vs. not to implement, your dead line and resources.
In a recent article, “7 E-Discovery Takeaways from CEIC,” three items stood out to me: (1) humans will still play a vital role in document review, but technology will assist in reducing the number of documents; (2) applying text analytics can also reduce the cost and population of document review; (3) make sure you have an agreement with opposing counsel on which technology you will choice. Here are thoughts from the article’s author, Sean Doherty:
1. Technology-assisted review, computer-assisted review, or predictive coding technologies will not replace human review, according to David Cohen, partner at Reed Smith. He said that document review technologies will still need humans to train systems and provide quality control. The undertow to the message: document review is not a career path.
2. Applying text analytics to document review reduces the cost of document review from dollars to cents per document. According to Cohen, human review, on average, can cost $1 to $3 per document. With Equivio, Reed Smith charges clients 3 cents per document after the system is trained, said Cohen. When asked how the firm calculates the cost to train a technology-assisted review system, Cohen said that Reed Smith charges clients by the billable hour.
3. If you can't get an agreement with your opponent on the use of technology-assisted review, said Cohen, don't forge ahead on your own (see Kleen Products v. Packaging Corp.). But there are still three use cases for TAR that don't require an agreement with your opposing party: use it on the production set your opponent delivers to you; use it to provide quality control to manual or human review; or use it to accelerate human review where automated review systems can identify highly relevant and irrelevant documents, which can be grouped or batched to speed review.
My advice to end users is to consult with your internal support team, whether it is the IT department or litigation support. Outline your goals and objectives for each project prior to making your selection on which technology can benefit your goal.
It is easy to become overwhelmed with information or want to use the newest, best, and greatest technology in the market. However, you must consider that the use of higher-end technologies come at a much higher cost. Consider the following while making your choice: (1) remember that sometimes the most cost-effective and efficient solution is also the most straightforward; (2) have a well-defined scope of the data you are going to process and review, because the days of "collect and process everything" are long gone; and (3) plan and map out your strategy for the production and review.
A successful production and review features the following elements:
Communication and planning
Meet and confer
Bring in the experts (internal resources, vendor, review team)
Outline: scope, goals, deadlines
Daily progress and quality control checks
Another helpful practice is to reduce data prior to production and review. This procedure includes the following:
Strategic collection of data
Strategic filtering of data
Keeping your ESI in a native format
Apply text analytics
—Robert Grande, codeMantra, Plymouth Meeting, PA
Federal Court Issues Sanctions for Failure to Preserve Text Messages
Earlier this year, a federal district court issued a decision sanctioning defendants in an antitrust suit for failure to preserve their text messages. The case serves as a reminder that parties should carefully preserve relevant information, including information that may be contained on handheld devices.
In Christou v. Beatport, LLC, 2013 WL 248058 (D. Colo. Jan. 23, 2013), the plaintiff sought an adverse inference sanction because defendants failed to preserve text messages on a key witness’s iPhone. Christou involved allegations that the defendants sought to deter certain A-list disc jockeys from playing at competing nightclubs. The plaintiff, a competing nightclub, filed the case in 2010 and at that time served a litigation hold letter directing defendants to preserve several categories of information, including text messages. The court found that defendants failed to take any steps to preserve text messages on the iPhone of a key witness, who was a talent booker for defendants. Worse, the witness lost his iPhone with text messages saved on it around the time that the discovery requests were issued. The plaintiffs thus moved for spoliation sanctions, asking the court to issue an adverse inference. Defendants claimed that any text messages that may have been on the witness’s iPhone were not relevant to the matter because the witness had testified that he did not book talent by text message.
The court agreed with the plaintiffs that simply because a witness did not book talent via text messages was not proof that there was no relevant information in his text messages. As the court put it, because the messages were not preserved, “neither the plaintiffs nor the Court will ever know” whether relevant material may have been on the iPhone. While the court agreed that some sanction was in order, it found that there was no evidence that the loss of the iPhone was anything other than “accidental,” nor was there evidence that the failure to preserve the messages was anything other than “negligence.” Given this, the court found that an adverse inference sanction would be too harsh but agreed that “some sanction [was] appropriate.” Thus the court sanctioned defendants by allowing the plaintiff to, at trial, introduce evidence of the litigation hold letter, defendants’ failure to preserve, and allow plaintiff’s counsel to argue for “whatever inference they hope the jury will draw.” The court further stated that it would allow defendants to preserve evidence in explanation, provided that such evidence is otherwise admissible, and argue that no adverse inference should be drawn.
Christou is a reminder that the duty to preserve relevant information, in many cases, includes and extends to electronic information stored on handheld devices. As the court put it, “a commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents when a case…is filed.”
Keywords: litigation, technology for the litigator, text messages, adverse inference
—Skye Lynn Perryman, WilmerHale, Washington, D.C.
Congress Considers Update to 27-Year-Old Email Privacy Law
The Los Angeles Times reported on March 19, 2013, that Congress is considering significant changes to the 1986 Electronic Communications Privacy Act (ECPA). The ECPA, among other things, prevents access to email and electronic communications stored on remote servers (e.g., Gmail, Yahoo!, etc.) that are less than 180 days old. At the time of initial passage, email usage was minimal and often not retained by users or businesses. After 180 days, the ECPA presumed that the email was abandoned by the user and therefore did not need to be maintained as private.
In a change that will affect the procedures prosecutors and government investigators must follow to obtain email and other electronic communications, the Electronic Communications Privacy Act Amendments Act of 2013 would require that law enforcement and other government entities obtain search warrants in order to access email stored by companies like Google and Yahoo!, regardless of the age of the communication. Currently, all that law enforcement or government entities have to do to gain access to email older than 180 days is provide documentation stating that the email may be related to an ongoing investigation or legal matter. This low standard results in millions of emails being provided to law enforcement with little or no judicial overview.
Additionally, the 2013 amendments would require providing the email user formal notification within 3 to 10 business days after access, depending on what type of agency requests the information. There are a few exceptions to this notification period, however the exceptions still require that notification be provided within a reasonable amount of time.
Keywords: litigation, technology for the litigator, email privacy, ECPA
—Dustin S. Sachs, Navigant, Houston, TX
Yahoo! Eliminates Email Attachment Size Limits, Making IP Theft Easier
Yahoo! announced in a blog post last week that Dropbox—the popular online file storage and sharing tool—has been integrated into Yahoo! Mail. For users, this means they can send huge files as email attachments. For attorneys litigating employment disputes and intellectual property matters, it’s another easy way IP can be exfiltrated from an organization’s networks and computers. (Luckily, this method leaves electronic traces, and you may be able to subpoena mail or other transfer data from Yahoo! and Dropbox.)
According to The Register, Yahoo! leads the US email market, followed by Google’s Gmail and Microsoft’s Hotmail, respectively. Both Gmail and Hotmail allow users to attach large files to their emails; Hotmail has a 300 megabyte size limit for users of Microsoft’s Skydrive, and Gmail has a 10 gigabyte (or 10,000 megabytes) limit thanks to Google Drive.
When looking into how certain intellectual property may have leaked, be sure to consider this “large email attachment” threat, as the old size restrictions of 5, 10, or 25 megabytes on email attachments should soon be a thing of the past for all major email services.
Keywords: litigation, technology for the litigator, email attachments, intellectual property theft
—Jason Briody, Jones Dykstra & Associates, Columbia, MD
Delaware Court of Chancery Orders Parties to Use Predictive Coding
In a recent order from the Delaware Chancery Court, vice chancellor J. Travis Laster ordered parties in litigation concerning an indemnification claim related to the purchase of the Hooters restaurant chain to jointly choose and utilize a predictive coding vendor or show cause why they should not do so. See EORHB, Inc. v. HOA Holdings, LLC, in the Court of Chancery of the State of Delaware, Civil Action No. 7409-VCL. The order is believed to be the first of its kind.
The case involves indemnification language in a 2011 settlement of litigation between Hooters of America, Inc., the family of Robert Brooks (its former CEO), Chanticleer Holdings, LLC, and Neighborhood Restaurants Inc. (connected with Wellspring Capital Partners) over, among other things, what entity would be allowed to purchase the restaurant. In the current litigation, the Plaintiffs alleged that certain claims for indemnification sought by the defendants had been released in a May 2011 agreement. The Defendants, in contrast, argued that the May 2011 release contained a carve out for the indemnification claims at issue. On October 15, 2012, the court heard oral argument on the plaintiffs’ motion for summary judgment and motion to dismiss, denying the motion and granting summary judgment for the defendants on their interpretation of the May 2011 release at issue. Essentially, the court found that the May 2011 release did not bar the defendants’ counterclaims.
Having set the stage for the parties pursuing discovery on the defendants’ counterclaims, the court then sua sponte ordered the parties to use predictive coding, ruling that:
This seems to be to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.
I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information. If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.
… These types of indemnification claims can generate a huge amount of documents. That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.
The court’s order is noteworthy for several reasons. First, it is the first time that a court has ordered parties to use predictive coding without the parties bringing it to the court. Second, the court ordered the parties to use a single provider, apparently placing great emphasis on the fairness to both sides and apparent costs benefits. Finally, the court’s order provides an interesting template for cases that might be suitable for predictive coding—non-expedited cases with substantial quantities of documents. Lawyers and litigants alike should pay attention to see if other courts choose to adopt vice chancellor's Laster’s approach and framework.
Keywords: litigation, technology for the litigator, indemnification claims, predictive coding, sua sponte, Hooters
—Ben Coulter, Burr Forman LLP, Birmingham, Alabama
Continuing Litigation in Apple v. Samsung E-Discovery Case
U.S. Magistrate Judge Paul Grewal has ordered Apple to provide Samsung access to sketchbooks and computer-aided-design (CAD) files relating to the development of its iPad and iPod products. Both companies are locked in an intellectual-property dispute over the design of tablet computers and smart phones. This is but another chapter in the protracted suit between the technology giants, with Apple being granted an injunction by the German courts in July that bars importation of Samsung’s tablets and phones. This back-and-forth is blazing trails in the realm of e-discovery, as well as in design patents. The access to the sketchbooks and CAD files must be done in a secure third-party location, adding another layer of complexity to the already complex e-discovery procedure between sophisticated parties. The first to market design dominance that Apple has been able to wield could impact the representation of emerging OEMs (Original Equipment Manufacturers).
Keywords: litigation, technology for the litigator, Apple, Samsung, e-discovery, intellectual property, design patents, OEMs, tablet computers, smartphones
—Robert Grande, codeMantra LLC, Plymouth Meeting, PA
Twitter Users Have No Standing to Contest Subpoenas
On April 20, 2012, Judge Matthew A. Sciarrino Jr. in the Criminal Court of New York City ruled in People of the State of New York v. Malcolm Harris, Docket No. 2011 NY 080152,that the defendant, Malcolm Harris, did not have standing to contest a subpoena issued by the New York County District Attorney’s Office to Twitter, Inc., seeking user information and several months’ worth of tweets. Harris was arrested October 1, 2011, along with more than 700 other individuals, and charged with disorderly conduct after allegedly marching on the roadway of the Brooklyn Bridge during an Occupy Wall Street protest. On January 25, 2012, the state sent a subpoena duces tecum to Twitter seeking user information and tweets posted for the period of September 15, 2011, to December 31, 2011, for the Twitter account @destructuremal, the Twitter account allegedly used by Malcolm Harris. Malcolm Harris filed a motion to quash the subpoena that was denied by the court.
In denying the motion to quash, Judge Sciarrino addressed the issue of whether or not a Twitter user has proper standing to quash a subpoena served on Twitter. The court noted that this was a case of first impression in New York, as New York courts have not previously addressed the issue of whether or not a criminal defendant has standing to quash a subpoena served on a third-party, social-networking-service organization. However, the court analogized the instant case with that of bank-records subpoenas. The court stated that “New York law precludes an individual’s motion to quash a subpoena seeking the production of the individual’s bank records directly from the third-party bank as the defendant lacks standing” because the “customer has no proprietary or possessory interests in them.” Thus, the court found that Malcolm Harris has no proprietary or possessory interest in the tweets created by the account @destructuremal.
Twitter’s terms of service specifically state, in pertinent part, as follows:
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Because every Twitter user must agree to these terms of service prior to creating an account, the court stated that “Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets.” In addition, in addressing Fourth Amendment concerns, the court relied on a Second Circuit case, United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004), for the proposition that “individuals do not have a reasonable expectation of privacy in internet postings or e-mails that have reached their recipients.” Similarly, “[u]sers would logically lack a legitimate expectation of privacy in materials intended for publication or public posting.” See United States v. Lifshitz, 369 F.3d 173, 191 (2d Cir. 2004), citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001).
As a result, the court held that Malcolm Harris did not have standing to move to quash the subpoena issued to Twitter. The bottom line from this ruling is simple—individuals who use social networking sites must exercise some discretion before posting information about their personal lives online. While this case will almost certainly not be the last of its kind, social-network users should be aware of these rulings to better protect their own privacy.
Keywords: litigation, technology for the litigator, social media, subpoenas
—Matthew T. Tipton Esq., Martin, Folino, Harmon & Stachler, LPA, Dayton, Ohio
Virginia Court Allows Predictive Coding for Discovery
Recently, in Global Aerospace Inc., et al v. Landow Aviation, L.P. [PDF], the Virginia Circuit Court for Loudoun County approved the use of predictive coding for discovery. The use of predictive coding—attorney-supervised search algorithms on electronically stored information (ESI)—was sought by the defendant, Landow Aviation. Landow Aviation presented convincing arguments that the use of predictive coding is not only cost-effective, but also drastically more effective than even human document-by-document searching.
This Virginia Circuit Court case addresses a dispute between Global Aerospace System and Landow Aviation over the collapse of three hangers at the Dulles Jet Center during a major snowstorm. During the first step of discovery, more than 8,000 terabytes of ESI were collected. Landow Aviation contracted JurInnov, Ltd., to consolidate the images into a more manageable collection of reviewable ESI. Eventually, 250 gigabytes of relevant files were produced. Even with this drastic reduction in file size, it was still estimated to require 20,000 man-hours to look through this material. During this human search, the success rate was expected to be approximately 59 percent with a cost of approximately $2 million. Using more traditionally accepted search algorithms, such as keyword searching, the success rate would have been much lower.
In presenting the argument to the court, the defense counsel was careful to satisfy the Virginia rules of discovery. There are two rules of the Supreme Court of Virginia that control the disposition of Landow’s motion for protective order. Rule 4:1(b)(1) establishes the scope of discovery and authorizes the court to limit discovery when it is found to be unduly burdensome or expensive. Rule 4:1(c) authorizes the court to fashion an appropriate remedy to protect a party from such undue burden and expense.
In regard to the first rule, imposing discovery that costs upward of $2 million with a success rate not much better than chance was characterized as “unduly burdensome and expensive.” In support of this stance, the defense cited a law-review article, “Technology-Assisted Review in E-Discovery Can be More Effective and More Efficient Than Exhaustive Manual Review,” XVII Rich. J.L.&Tech. 11 (2011). This is an exhaustive publication that addresses the primary concerns with electronic discovery and the great opportunity that predictive coding presents to the litigation community. Arguably the most convincing source that the defense depends on is a study conducted by Ellen Vorhees, cited in the previously mentioned article. It found that experienced information-retrieval experts were successful only 49.4 percent of the time.
As courts and legal scholars continue to find that predictive coding is a cost-effective and precise method of e-discovery, predictive coding will seem less like a cutting-edge technology and more like a necessary tool for the modern litigator.
Keywords: litigation, technology for the litigator, predictive coding, evidence
—Roberto Martell Jr., Student, Chicago-Kent College of Law
District Judge Upholds Ruling on Predictive Coding
On April 25, 2012, Judge Andrew L. Carter, U.S. District Judge for the Southern District of New York, upheld Magistrate Judge Peck’s February 8, 2012, discovery order issued in Da Silva Moore v. Publicis Group, No. 11-CV-1279 (S.D.N.Y. April 25, 2012), permitting the use of predictive coding to search for responsive documents in a discovery request.
The plaintiffs in Da Silva objected to Judge Peck’s discovery rulings and the electronically stored information (ESI) protocol permitting the use of predictive coding under Fed. R. Civ. P. § 72(a). They requested that the court overturn the magistrate judge’s rulings as erroneous and contrary to law. They argued, inter alia, that the predictive-coding method contemplated in the ESI protocol lacked generally accepted reliability standards, that the use of such a method violated Fed. R. Civ. P. § 26 and Fed. R. Evid. 702, and that Judge Peck improperly relied on outside documentary evidence in his February 24, 2012, opinion and order.
Judge Carter, mindful of the highly deferential standard of review under Fed. R. Civ. P. § 72(a), adopted Judge Peck’s rulings because they were well reasoned and they consider the potential advantages and pitfalls of predictive-coding software.
Judge Carter wrote that the ESI protocol contained standards for measuring the reliability of the process, and the protocol built in levels of participation by the plaintiffs. The predictive-coding protocol provides that the search methods will be carefully crafted and tested for quality assurance, with the plaintiffs participating in their implementation.
In upholding Judge Peck’s order, Judge Carter rejected the plaintiffs’ arguments concerning the reliability of the method as premature and noted it is difficult to ascertain that the predictive software is less reliable than the traditional keyword search. Judge Carter stated in conclusion, “There simply is no review tool that guarantees perfection.” The court concluded that Judge Peck’s finding that predictive coding was more appropriate than keyword searching under the facts was not “clearly erroneous or contrary to law.”
Keywords: litigation, technology for the litigator, predictive coding, discovery, electronically stored information
—Robert M. Redis Esq., partner, McCarthy Fingar LLP
Oracle Continues Pursuit of Novel Damages Theory
Having obtained a record-high jury award for copyright infringement of $1.3 billion in 2010, which it lost post-trial, Oracle continues to test the boundaries of damages available for copyright infringement by continuing to pursue a theory that “actual damages” under the copyright statute includes the market value of a hypothetical license. Although the concept of damages based on a hypothetical license is extremely common in patent damages cases, Oracle’s theory remains unique among them. Oracle Corp. v. SAP AG, case number 4:07-cv-01658-PJH (N.D. Cal.). This may change if Oracle succeeds.
In 2010, SAP admitted to infringing the copyright of Oracle’s software. After SAP admitted liability, the only remaining issue was—and still is—the amount of Oracle’s damages.
The Copyright Act states at 17 U.S.C. § 504(a) that:
An infringer is liable for
(1) the copyright owner’s actual damages and any additional profits of the infringer . . . ; or
(2) statutory damages . . . .
17 U.S.C. § 504(b) addresses actual damages and additional profits:
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.
In November 2010, the court conducted a jury trial on damages. At trial, Oracle presented a novel copyright damages theory based on the value of a lost-license fee—the hypothetical price it would have cost SAP to obtain a license for Oracle’s software (such that SAP could offer Oracle’s software to customers). However, at trial, an Oracle executive testified that there are no actual licenses comparable to the hypothetical license at issue and that both parties’ witnesses confirmed that such licenses would never have existed between SAP and Oracle.
On November 23, 2010, the jury awarded Oracle damages in the amount of $1.3 billion. This was a record damages award for copyright infringement.
After the trial, SAP moved for judgment as a matter of law that Oracle is not entitled to actual damages for copyright infringement in the form of a hypothetical license, alleging that Oracle did not establish that, but for infringement, it would have licensed the asserted copyrighted works for the use at issue. SAP also claimed that Oracle did not present sufficient evidence to value such a license, with the result that the jury’s award was unduly speculative.
On September 1, 2011, U.S. District Judge Phyllis Hamilton granted SAP’s motion and vacated the $1.3 billion jury award. The court held that, to establish hypothetical license damages, Oracle was required to show that, but for infringement, the parties would have agreed to license the use of the copyrighted works at issue. The court further held that Oracle failed to present objective evidence of benchmark transactions, such as licenses previously negotiated for comparable use of the infringed work, and benchmark licenses for comparable uses of comparable works. The court offered Oracle a remittitur of $272 million, based on the actual harm to Oracle in the form of lost customers.
Oracle rejected the remittitur of $272 million and Judge Hamilton denied Oracle’s motion certifying the post-trial orders for interlocutory appellate review. Because Oracle rejected the remittitur, the parties are now preparing for a second trial on the damages issue.
Oracle has moved the court for clarification of its right to present evidence and argument in support of a hypothetical license measure of damages at the second trial, including whether the court will allow Oracle to present evidence not previously offered at the first trial. This new evidence that Oracle seeks to offer includes an agreement between Oracle and SAP, testimony from Oracle executives that they would have been willing to license the software to SAP, and additional evidence of sales expectations for the Oracle products at the time of the hypothetical license (such as sales projections from the relevant time period). This motion remains pending.
Oracle has also stated that if the court precludes it from pursuing damages based on a hypothetical license, it will pursue actual damages based on lost sales and support revenue, as well as the infringer’s profits. Specifically, Oracle is claiming $656 million of infringers’ profits and that it suffered at least $120.7 million in lost profits as a result of the copyright infringement, substantially more than Oracle claimed for these categories of damages in the first trial. Oracle’s $656 million request appears to consist of nearly all of the revenue associated with the SAP subsidiary that conducted the infringement, on the theory that the copyright infringement pervaded its entire business model. The $120 million in lost profits is Oracle’s measure of the loss of profits from the customers that SAP’s subsidiary took from Oracle.
As the case develops, this website will provide updated information.
Keywords: litigation, technology for the litigator, Oracle, damages
—Alison Aubry Richards Esq., partner, Fitch, Even, Tabin & Flannery, LLP
Google Launches Online File-Storage Service
On April 24, 2012, Google launched Google Drive, an online document-storage service that provides up to 5 GB of storage for free. This service is thought to compete with Dropbox, another online storage and file-syncing service. As mentioned in a recent article in Technology for the Litigator’s newsletter, “How Document Management Can Accelerate Law Practice,” cloud storage can be a practical tool for data management by providing access to your important documents from any phone, table, or personal computer. Though Google previously provided Google Documents as an online document-storage and collaboration tool, Google Drive will eventually replace Google Documents and add additional new features.
By installing the Google Drive software on your personal computer, you can add documents to a specific Google Drive folder that automatically syncs and stores those same files online. It retains the collaboration features of Google Documents by allowing other users to simultaneously view and make changes to a document. You can also share an entire folder, or just certain files, with colleagues. Google Drive also utilizes Google’s search tools for locating stored documents or information within the documents.
Google’s creation of an online document-syncing service exhibits the popularity of cloud computing and its users’ desire to have access to these technologies. Many legal issues will arise as individuals and companies continue to utilize cloud technology, including protecting attorney-client privilege of stored documents, ownership of the information stored and its effect on copyright and intellectual property rights, and the numerous security vulnerabilities that can arise in storing data online. Review the Technology for the Litigator Committee’s News & Developments for discussion of these legal issues as the courts address them.
Keywords: litigation, technology for the litigator, Google Drive, cloud computing
—Brian Deitch, Michael Deitch & Associates, Austin, Texas
Facebook Tests Damages Available to Redress Spam
In Facebook, Inc. v. Power Ventures, Inc., 5:08-cv-05780 (N.D. Cal.), Facebook alleged that the defendants accessed its website in an unauthorized manner and then sent unsolicited and misleading commercial email to Facebook users. Specifically, Facebook alleged that the defendants induced Facebook users to provide the email addresses of their Facebook contacts (Friends), and then the defendants sent spam to them, stating that the spam came from “The Facebook Team.”
On February 16, 2012, Judge James Ware granted summary judgment that that the defendants had violated the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), the Comprehensive Computer Data Access and Fraud Act (California Penal Code § 502), and the Computer Fraud and Abuse Act (CFAA).
The CAN-SPAM Act provides that “[i]t is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading.” 15 U.S.C. § 7704(a)(1).
The Comprehensive Computer Data Access and Fraud Act provides, in part, that a person is guilty of a public offense if he:
“(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data;
(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network. . . .; or
(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.”
The CFAA imposes liability on any party that “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C).
In light of the summary judgment ruling finding liability under all three statutes, the case has progressed to the determination of damages. Facebook contends that it is entitled to receive the maximum statutory award under the CAN-SPAM Act and is requesting $18,188,100, which is $100 for each of the spam messages that the defendants caused to be sent to Facebook users. Facebook is seeking to treble damages, alleging that the defendants’ conduct was willful and knowing and that they engaged in “directory harvesting,” an “aggravated violation” of the CAN-SPAM Act for which treble damages are available.
Facebook is also requesting compensatory and punitive damages under the CFAA. Compensatory damages essentially consist of the costs of investigating and responding to a violation of the CFAA. Facebook alleges that it conducted internal and external investigations and implemented technical measures, but the dollar amount of this component of damages has been redacted from the filings currently available. Facebook has also requested punitive damages under the Comprehensive Computer Data Access and Fraud Act, but did not specify an amount, leaving it to the court’s discretion.
Keywords: litigation, technology for the litigator, Facebook, spam, compensatory damages, punitive damages
—Alison Aubry Richards Esq., Fitch, Even, Tabin & Flannery, LLP
Committee Participates at Section's Annual Conference
The American Bar Association’s Section of Litigation recently held its annual conference in Washington, D.C. During this event, members of the Technology for the Litigator Committee helped present a CLE session, met to discuss and plan content and upcoming events, and presented at the Committee Expo.
The Technology for the Litigator Committee partnered with the Trial Evidence Committee to present a CLE session on “Litigating in the Digital Age: Tech Tips to Propel Your Case to Success.” The distinguished panelists included the Honorable Herbert Dixon Jr., Superior Court of the District of Columbia, Washington, D.C.; Ahmed Davis, Fish & Richardson P.C., San Diego, California; and Sharon Nelson and John Simek, Sensei Enterprises, Fairfax, Virginia. The panelists demonstrated how to exploit electronic devices to manage your practice, prepare for trial, select a jury, and present your case—without violating laws, rules, and judicial preferences.
Later that evening at the Committee Expo, committee members hosted a booth based on the popular NBC game show, A Minute to Win It. Attendees played various games while learning about the committee and took home some great prizes.
Following the Section Annual Conference, committee members stayed an extra day and night in Washington, D.C., to work on advanced planning through the Section of Litigation’s AP Leadership Program. On Friday, committee members had dinner by the White House, and on Saturday, they met all day to plan the committee’s strategic vision for the next three years, including developing content ideas and planning programming, recruiting, and subcommittee development, along with new member benefits.
Keywords: litigation, technology for the litigator, Section of Litigation Annual Conference
—Brian Deitch, Michael Deitch & Associates, Austin, Texas
Cloud Computing Dominates ABA Techshow Expo
This year’s ABA Techshow Expo, on March 29, 2012, reflected the continuing trends in automation, mobility, and efficient document management that we have seen in legal technology for several years. This year, however, one major point of emphasis at the expo was the use of cloud computing to achieve these practice management goals.
Despite the hot topic it has become, cloud computing itself is not a particularly new concept. According to the recently released book, Cloud Computing for Lawyers by Nicole Black (ABA, 2012), “cloud computing is defined as Internet-based computing that allows you, via an Internet connection, to access software or data that is stored and operated on someone else’s computer system.” For some years now, most of us have accessed data and software stored on someone else’s computers through the Internet. For example, a number of web-based email service providers have stored software and files in the service’s cloud, rather than on each user’s computer.
As a logical extension of the cloud-computing concept, several exhibitors at the Techshow offered attorneys and their firms cloud-computing services, touting impressively reduced IT costs and increased mobile access to documents through the use of a cloud. For example, one exhibitor, Cloud9RealTime, offers the Cloud9 Virtual Server, which can host attorneys’ software applications and files. Another exhibitor, Cetrom Information Technology, offers lawyers the opportunity to outsource all of their IT operations through cloud-computing services. In light of the recent ethics opinions in several states opining that attorneys may use cloud computing, provided they satisfy all of the other ethical requirements, many exhibitors emphasized reliability and security, which are essential to widespread adoption of these types of services.
The biggest wow factor, though, seems to be the easy, efficient, and inexpensive preservation of electronic documents. For example, Gavel & Gown Software, Inc., announced the upcoming release of Amicus Attorney Cloud Edition, which, among other capabilities, can store all of an attorney’s email on a cloud server for future access without burdening the attorney with extra steps while sending or receiving each email. In another example, the exhibitor Nextpoint offers an array of cloud-based services, including Cloud Preservation, which, according to Nextpoint, can automatically archive websites, social media, and blog content.
In the short term, these services seem to present easy solutions to many IT issues that lawyers frequently encounter. It remains to been seen, however, how such services may influence the scope of electronic discovery, including Federal Rule of Civil Procedure 26’s discovery exemption for electronically stored information, which reasons that it’s not reasonably accessible because of undue burden or cost.
No doubt the cloud trend will not be dissipating any time soon. And take what you will from the fact that among the many enjoyable giveaways I left the expo with this year was a foam-rubber stress ball shaped like a cloud.
Keywords: litigation, technology, ABA Techshow Expo, cloud computing
—Alison Aubry Richards Esq., Fitch, Even, Tabin & Flannery, LLP
Predictive Coding to be Used for ESI Discovery
In his article, “Search, Forward: Will Manual Document Review and Keyword Searches Be Replaced by Computer-Assisted Coding?” in Law Technology News (Oct. 1, 2011), Magistrate Judge Peck predicted that no one would utilize this method of discovery until a judge approved computer-assisted review. In Da Silva Moore v. Publicis Group, No. 11-CV-1279 (S.D.N.Y. Feb. 25, 2012) Judge Peck became that judge.
Judge Peck allowed the defendants in Da Silva, an employment-discrimination class-action case, to use a predictive-coding protocol to search for relevant, responsive documents over the plaintiffs objections. The potential pool of reviewable documents was estimated to be 3 million. Predictive coding is a methodology by which a sophisticated software algorithm is used to enable a computer, interacting with a trained human reviewer, to learn to predict which documents will be relevant and responsive to a discovery request.
The parties in Da Silva agreed to use a 95 percent confidence level to create a randomized sample out of the collection of 2,399 emails. That initial sample was reviewed to determine relevant and nonrelevant documents to create a “seed” set from which the computer would learn to train the predictive-coding software. Senior attorneys created the seed set by manually tagging and coding the emails as either responsive or not responsive. After the initial seed set was completed, the electronically stored information (ESI) discovery plan proposed seven iterative rounds of 500 documents each to stabilize and test the program.
Judge Peck found predictive coding to be more reliable and less costly than alternative means. In endorsing predictive coding, Judge Peck was keen to point out that computer-assisted discovery was not perfect but that it was better than the alternatives. Manual review was less reliable and more costly due to human fatigue factors and the reviewers’ subjective judgment. Keyword searching was likened to a game of “Go Fish,” because the proponent had to “guess” at the key words the responding party used in its communications and documents. Predictive coding, in contrast, would only involve human review of 1.9 percent of the 3 million documents, resulting in a 50-fold cost savings and a much more accurate response to the request. The ESI order provided for phased discovery and had transparency built in, because the responding party shared with its adversary the entire seed set (except for privileged documents) and permitted the requesting party to suggest its own tags and coding for future iterative sampling.
Judge Peck found that predictive coding satisfied the proportionality standard mandated by F.R.C.P. § 26(b)(2)(C) because it was more accurate and less costly than the alternatives. The plaintiffs’ objections to predictive coding under F.R.E. 702 and Daubert were rejected at the discovery stage as premature but preserved the right to raise the objections at trial.
The plaintiffs appealed the order to U.S. District Court Judge Carter under F.R.C.P. § 72. Judge Carter granted the plaintiffs to March 19, 2012, to file a reply brief arguing their objections to the ESI order. No decision had been rendered by Judge Carter as of the writing of this article.
For preview coverage of this story, see Roberto Martell Jr.'s write-up below.
Keywords: litigation, technology, predictive-coding protocol, electronically stored information
—Robert M. Redis Esq., partner, McCarthy Fingar LLP
District Judge Orders Defendant to Decrypt Laptop
U.S. District Judge Robert Blackburn has ordered a defendant to decrypt her laptop, which could obtain evidence in the mortgage-fraud case against her. The defendant’s attorneys have appealed the case, United States v Fricosu, without a judgment being rendered, and the Tenth Circuit Court of Appeals has agreed with the government’s position that the case must end in a conviction or acquittal before an appeal can be heard. The Tenth Circuit may have decided this on a jurisdictional issue, but the underlying case is one in which all attorneys who have clients with confidential digital files have an interest.
The federal authorities seized the laptop in question and, with a search warrant in hand, ordered the defendant to decrypt her laptop. Her attorney believes that compelling her client to decrypt her laptop is a violation of the Fifth Amendment right against self-incrimination. The defendant has claimed to have forgotten the password, a very human limitation to e-discovery efforts. The testimonial nature of the information that is encrypted is a primary question to the proceedings, with immunities being extended to the defendant. However, how far these immunities will go is still to be determined. There is no clear standard as to the how this sort of order is to be used in other cases, as the nature of the data in question and what it is suspected of showing is taken into consideration.
Client information and its confidentiality are of paramount concern in a digitized business and legal environment. A possibly more important concern is an information technology (IT) policy that allows for a company employee to be exempt from liability for forgetting a password. Clients must be advised that encryption is a real e-discovery concern that should be addressed before court orders are sought.
Keywords: litigation, technology, Tenth Circuit, confidentiality, encryption
—Roberto Martell Jr., second-year law student, Chicago-Kent College of Law
Judge Orders Predictive Coding in New York Case
In an unprecedented adoption of e-discovery technology, Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York has ordered parties to use predictive coding in e-discovery. The trailblazing case is that of Da Silva Moore v. Publicis Group, No. 11 Civ. 1279 (ALC) (S.D.N.Y. Feb. 8, 2010). The employer in this suit is accused of Title VII gender discrimination, which the plaintiff hopes to prove through a discovery process that will look at hundreds of thousands of office communications. Judge Peck has ordered that both sides implement the cutting-edge e-discovery method that drastically cuts down on discovery time and cost.
Predictive coding in e-discovery uses sample sets of documents that are scanned using predetermined keywords to determine whether the sample contains enough relevant documents to make a broader search worthwhile. The error rate of such practices has been in question for some time, with judges not willing to accept the less-than-perfect standard of error. Judge Peck has paved the way for other members of judiciary to have confidence in the discovery method, which can be more than 95 percent accurate.
Keywords: litigation, technology, predictive coding, e-discovery
—Roberto Martell Jr., second-year law student, Chicago-Kent College of Law
Apple v. Samsung Update: Attacking a Phone to Get to an OS
The ever-changing saga of the patent dispute between Apple and Samsung has taken another interesting turn this week. Apple has filed an injunction motion to bar the sale of the Samsung Galaxy Nexus in the United States. Apple claims that the device infringes on a number of patents that it holds, including the slide-to-unlock patent claim. The suit names the Nexus as the primary infringing device, but the vast majority of the claims pertain to features of the phone’s operating system, which is designed by Google.
The Samsung Galaxy Nexus is a device produced by the South Korean electronics giant that was designed with Android 4.0 in mind. Reports are that the device was designed to explicitly avoid Apple’s design and software patents. Apple and Samsung have been in a patent struggle for months, with successful injunctions being granted that barred the importation of other Samsung products to Germany. The U.S. courts have yet to decide the validity of Apple’s claims.
Keywords: litigation, technology, patents, Apple, Samsung
—Roberto Martell Jr., second-year law student, Chicago-Kent College of Law
Developments and Technical Difficulties in Apple v. Samsung
The ongoing litigation battle between Apple and Samsung over the intellectual property that goes into the iPhone, iPad, and its competitors has made headlines for months in the European and Australian courts. The companies have been suing and counter-suing each other, and they have been seeking injunctions that would bar the sale of the competitor’s products in specific markets. In the highly competitive smartphone and tablet business, a short gap in sales can lead to repercussions from which a company will struggle to recover. Apple has successfully obtained such an injunction in counties like Germany, but no U.S. court has granted such an injunction. U.S. District Court Judge Lucy Koh denied Apple’s motion to suspend the sales of the allegedly infringing devices produced by Samsung of South Korea. The case will go to trial in 2012.
This case update does not end there, as the issue of client privacy, especially when dealing with cases pertaining to intellectual property and trade secrets, has also made headlines. The district court released a version of its decision that incorporated redacted portions of Apple and Samsung case materials that could be read by copying the redacted portions and pasting them into a blank text file. The court quickly fixed this loophole, but Reuters obtained copies of the original. Nothing material to the case was divulged, but this should serve as a reminder of the importance of proper formatting in court filings.
Keywords: litigation, technology, intellectual property, smartphones, tablets, injunctions, court filings
—Roberto Martell Jr., second-year law student, Chicago-Kent College of Law
Court Upholds Taxing Costs of Converting Electronic Data
In Jardin v. DATAllegro, Inc., 2011 WL 4835742, No. 08-CV-1462-IEG (WVG) (October 12, 2011 S.D. Cal.), the plaintiff filed a motion to stay, deny, or re-tax the taxation of costs awarded to the defendants, the prevailing parties. The plaintiff’s underlying suit claimed the defendants’ product infringed on its patent. The court granted the defendants’ summary-judgment on non-infringement. Although the plaintiff’s appeal was currently pending, the defendants submitted a bill of costs to the clerk, seeking of taxation of costs under FRCP 54 and 28 U.S.C. § 1920. The clerk taxed approximately $135,000 in costs against the plaintiff.
The court explained that Rule 54 only awards costs authorized by statute or contract. Section 1920 permits costs for
(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
The courts are free to interpret the meaning of those categories.
The plaintiff challenged the validity of costs associated with converting electronic data, taxed under the umbrella of exemplification costs category and the costs for project management of defendant’s e-discovery. While plaintiff conceded that Section 1920 authorized costs for hard copies and for making digital images of hard copies, he claimed it did not authorize the expenses for the conversion of electronic documents from one form to another. Relying on the statutory history, the court recognized that the statute had changed from allowing fees for copies of “papers” to fees for copies of “any materials.” According to the court, the federal courts are still divided over whether converting e-data from one format into another is a valid exemplification cost.
The court reasoned that “[b]ecause e-data may be created and stored in many different formats—often incompatible with one another or requiring individual licenses to access data—converting data into a format that all parties can utilize not only allows for more efficient and less expensive discovery, but is often necessary for any meaningful discovery at all.” In upholding the clerk’s decision to include these costs, the court held that “where the circumstances of a particular case necessitate converting e-data from various native formats to the .TIFF or another format accessible to all parties, costs stemming from the process of that conversion are taxable exemplification costs under 28 U.S.C. § 1920(4).”
The plaintiff also objected to being taxed the costs of project management, arguing that it is does not involve the exemplification, but rather the analysis work, similar to that of an attorney in document production. The court distinguished this point by explaining that those costs are recoverable where the technician’s duties are limited to technical issues related to the production of the information. The court upheld these costs because the project manager only oversaw the process of converting the data to prevent inconsistent or duplicative process rather than reviewing the documents or participating in strategic decision making.
Keywords: costs, cost-shifting, discovery, trial, litigation, e-discovery, ESI
—Brian Deitch, Law Offices of Michael Deitch & Associates, Austin, TX
Court Does Not Require Proof of Bad Faith for Spoliation Sanction
In Escamilla v. SMS Holding Corporation, 2011 WL 5025254, Civil No. 09-2120 ADM/JSM (October 21, 2011, D. Minn.), the plaintiff-employee alleged sexual harassment and sexual battery by her supervisor while she was employed by defendants. The employer was informed by the EEOC that it had a duty to preserve personnel records relevant to the plaintiff’s claims. A month later, the supervisor returned his computer to the employer upon leaving his employment with them.
Approximately a year and a half later in the ensuing lawsuit, the court directed the employer and supervisor to preserve electronic documents relevant to the lawsuit. When the plaintiff sought production of the paper documents and electronic information from the defendants, no electronic information was produced. The plaintiff moved to compel the production of the supervisor’s personal or home computer used in connection with his work for forensic copying. The plaintiff was seeking the electronic information to show that the supervisor had fabricated memoranda that reflected negatively on the plaintiff.
At the hearing on the motion to compel, the parties learned that the supervisor used two personal computers while working for the employer. The supervisor’s attorney disclosed that after the EEOC preservation request, but before the court’s preservation order, the supervisor had sold one of those computers. It was later disclosed that the supervisor had also reinstalled his operating system on his other computer.
Additionally, the employer did not attempt to locate the work computer until almost two years after the EEOC instruction and six months after the court’s preservation order. When the employer’s own forensic experts searched the computer, it did not try to detect whether there was evidence of wiping, cleaning, or otherwise destroying ESI. They also did not locate any responsive information. Given the failure of the employer to preserve the data, the plaintiff’s own forensic expert was permitted to search for documents and located some responsive information. Accordingly, the court permitted the plaintiff’s expert to conduct an independent forensic search of the computers at issue and also determine the impact of the reinstallation of the operating system on the supervisor’s home computer.
Based on the failures of the parties to preserve the ESI as required, the court ordered the employer to perform additional searches at its own expense. The court also ordered the supervisor to pay for an additional deposition of him regarding the personal computers he used. The supervisor and the employer objected to this order. Among his objections, the supervisor complained that there was no spoliation evidence and he should not be sanctioned. The employer complained that the court merged the employer’s duty to preserve with its duty to produce by imposing spoliation sanctions.
In upholding the magistrate judge’s orders, the court explained that given the suspicious timing of the supervisor’s actions, the court could infer that the supervisor acted in an intentional manner to destroy electronic evidence. The court also explained that the irretrievable destruction of evidence causes a party prejudice. The extent of the prejudice could only be determined after a forensic examination of the supervisor’s computer. Finally, because the prejudice resulted from the supervisor’s conduct, he must bear the costs of the additional discovery. The court further explained that where the destruction of evidence occurs after the initiation of litigation, no bad faith is required to impose sanctions. In responding to an additional objection about the costs and the burdens on the supervisor created by the additional discovery, the court explained that these costs were a result of the supervisor's own wrongful actions and would affect the burden-balancing test.
The employer’s argument was based on its claim that the magistrate failed to perform a full spoliation analysis, only focusing on its duty to preserve. However, the court pointed out that it had considered the relevance of the additional searches and was not required to find bad faith in these circumstances. The court also found that the plaintiff had been prejudiced by this destruction.
Keywords: e-discovery, ESI, spoliation, sanctions, data, destruction
—Brian Deitch, Law Offices of Michael Deitch & Associates, Austin, TX
October 12, 2011
Continuing Litigation in Apple, Inc. v. Samsung Electronics, Ltd., et al.
U.S. Magistrate Judge Paul Grewal has ordered Apple to provide Samsung access to sketchbooks and computer-aided design (cad) files relating to the development of its iPad and iPod products. Both companies are locked in an intellectual property dispute over the design of tablet computers and smart phones. This is but another chapter in the protracted suit between the technology giants, with Apple being granted an injunction by the German courts in July that bars importation of Samsung's tablets and phones. This back and forth is blazing trails in the realm of e-discovery as well as in design patents. The access to the sketchbooks and cad files must be done in a secure third-party location, adding another layer of complexity to the already complex e-discovery procedure between sophisticated parties. The first to market design dominance that Apple has been able to wield could impact the representation of emerging OEM’s (original equipment manufacturers).
—Roberto Martell, Jr., Chicago-Kent College of Law, Chicago, IL
September 9, 2011
Clean Harbors Environmental Services, Inc. v. Esis, Inc. arose between the plaintiff, its insurance adjuster, and the law firm hired by the insurance adjuster to handle a lawsuit against plaintiff. No. 09 C 3789, 2011 WL 1897213, (N.D. Ill. May 17, 2011) (mem. op.). Plaintiff alleged that the law firm, which was instructed and directed by the insurance adjuster, lacked the skills and experience necessary to adequately represent plaintiff in a separate lawsuit.
Due to plaintiff’s method of backing up its system and a late litigation hold request, plaintiff incurred $91,000.00 in charges from a third-party vendor. Following the completion of electronic discovery, plaintiff filed a motion for protective order seeking to shift the costs of electronic discovery to the defendants because plaintiff had to pay a third-party vendor to cull, filter, and process the electronically stored information requested by the defendants.
In determining whether defendants should bear some of the cost, the court explained that “[t]he general rule in discovery is that the responding party bears the costs of complying with discovery requests. But a responding party may ask the court to protect it from ‘‘undue burden or expense’’ by either restricting the discovery sought or by shifting the costs to the non-producing party.” Citing Zubulake, the court further explained that “[c]ost shifting has been found to potentially be appropriate only ‘when inaccessible data is sought,’ such as with backup tapes. The Seventh Circuit considers the following factors to determine when it is appropriate to shift the costs of searching and producing inaccessible date to the requesting party:
(1) the likelihood of discovering critical information; (2) the availability of such information from other sources; (3) the amount in controversy as compared to the total cost of production; (4) the parties resources as compared to the total cost of production; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; (7) the importance of the requested discovery in resolving the issues at stake in the litigation; and (8) the relative benefits to the parties of obtaining the information.
First, the insurance adjuster challenged plaintiff’s assertion that the information was inaccessible. In dismissing this argument, the court noted that many courts agree that information stored on backup tapes is inherently inaccessible. In this instance, it required the plaintiff to physically retrieve the tapes, load them onto its system, extract certain information, and then repeat these steps for each month.
With regard to the first two factors, the court acknowledged that even though the adjuster did not have access to the information sought, it logically could have, as it was in control of the law firm defendant who also had the exact information plaintiff had.
The court next analyzed the three cost factors that followed. It determined that the financial burden was substantial and warranted at least some cost shifting. All parties had substantial resources, rendering the fourth factor unhelpful. In analyzing the fifth factor, the court found that plaintiff should have raised its concerns as to the scope of the discovery requests during the discovery process. Nevertheless, the court found that this factor weighed in favor of cost shifting because plaintiff had attempted to jointly select a third-party vendor and had worked with defendants to limit the search parameters.
Finally, the court found the only remaining important factor to consider was the importance of the requested discovery in resolving the issues at stake. The court notes that this factor focuses on relevance. Because the parties did not argue that the information sought was irrelevant, the court believed this factor was neutral.
After examining all of these factors, the court returned to analyzing the parties’ negotiations regarding cost-sharing prior to the discovery requests. Several emails had been exchanged between the parties regarding cost-sharing and had even given an indication that one of the defendants was willing to consider it. Further, the court found that the plaintiff’s attempts to come to an agreement without resorting to the court weighed in its favor. However, the court also recognized that no agreement was ever made.
As a result, the court determined that the costs should be split—the plaintiff responsible for half, and the two defendants each responsible for one-fourth.
—Brian Deitch, Law Offices of Michael Deitch & Associates, Austin, TX
September 7, 2011
Are Private Zones of Social-Networking Sites Fair Game?
With the increasing popularity of sites like Facebook, attorneys are taking advantage of social networking sites to gather information that could be useful against their opponents. But is this information—some within “private zones” of the social-networking sites—fair game for discovery?
Recent case law seems to be moving toward allowing attorneys to mine these private zones. In 2009, the U.S. District Court in Colorado ruled in Ledbetter v. Wal-Mart Stores, Inc. that the plaintiffs' private comments on Facebook, MySpace and Meetup.com were subject to subpoenas sought by Wal-Mart. In 2010, the New York Supreme Court ruled in Romano v. Steelcase Inc. that since Facebook and MySpace accounts did not guarantee complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. Consequently, the defendant was entitled to the information within the private zones of the social-networking sites.
Jim Dempsey, vice president of public policy at the Center for Democracy and Technology, summarized the current trend as follows: “You do have a right of privacy in your private Facebook postings. But in the context of litigation, that right can be overcome." Undoubtedly this will become more of an issue as sites like Facebook, which currently has over 500 million users, continue to grow every day.
—Lauren D'Cruz, William Mitchell College of Law, St. Paul, MN
July 18, 2011
District Court Awards Costs for Fees Charged by E-Discovery Vendors
In an opinion highlighting the expense of modern litigation, Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania recently held that defendants who prevailed on summary judgement were entitled to a substantial award of costs for fees charged by their e-discovery vendors.
After losing on summary judgment and a subsequent appeal to the U.S. Court of Appeals for the Third Circuit, the plaintiffs, subsidiaries of parent company Specialty Tires of America (STA) failed in their objection to the Clerk of Court's Taxation of Costs, largely comprised of e-discovery expenses totaling more than $350,000. In affirming the award of costs, the court provided an extensive review of the case law on whether e-discovery constitutes "fees for exemplification and the costs of making copies of any materials where the materials are necessarily obtained for use in the case." 28 U.S.C. § 1920(4).
—Jason Zack, Patterson Belknap Webb & Tyler LLP, New York, NY
April 18, 2011
Order to Retain a Third-Party E-Discovery Vendor
Recently, a magistrate judge ordered the defendants in Seven Seas Cruises S. DE R.L. v. Ships Leisure Sam to retain a third-party e-discovery vendor to assist in responding to the e-discovery requests of plaintiffs because the defendants’ information technology employees failed to properly do so. No. 09-23411-CIV, 2011 WL 772855 (S.D.Fla. February 19, 2011). In sanctioning the defendants, the court recommended denial of defendants’ respective summary judgment motions because defendants’ failure to properly perform the required e-discovery searches meant that unproduced relevant evidence may still exist.
Plaintiffs filed a renewed motion to compel discovery of electronically stored information and for sanctions following the court’s prior order on plaintiffs’ first motion to compel. Plaintiffs alleged that defendants failed to search the computers of all of its employees with relevant information and failed to produce complete information for the employees whose computers were searched. Plaintiff provided a list of various employees they believed were omitted and specific time periods for the missing electronically stored information (ESI). Plaintiffs asked the court to strike the defendants’ pleadings and enter a default judgment on the grounds that plaintiffs were prejudiced by defendants’ failure to properly respond to the e-discovery requests.
In their written response to plaintiffs’ renewed motion to compel and at the hearing, defendants argued that plaintiffs’ requests required defendants to search for computers of employees without relevant information. Defendants also explained the specific time gaps in the ESI production complained of by plaintiffs. The court implied that defendants’ arguments and objections were excuses for defendants’ inability to properly respond to the e-discovery requests. Further, defendants conceded that a third-party vendor should have been retained to respond to the e-discovery requests.
In reviewing Federal Rule of Civil Procedure 37, the court noted that “the severe sanction of a default judgment is only appropriate as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders.” The court explained further that this sanction is only permitted if the defendants’ conduct was willful or if the defendants failed to obey the earlier discovery order in bad faith. “[F]ailure to comply with a discovery order [due to] simple negligence or a misunderstanding” does not justify entering a default judgment as a sanction. The judge pointed out that if a party claims that it misunderstood an order, it must provide a credible explanation of its interpretation; unsupported assertions of misunderstanding are not sufficient.
The court went on to explain that this was one of several discovery disputes between these parties. As explained by the court, had the parties held an e-discovery conference as required by Federal Rule of Civil Procedure 26(f), these disputes could have been narrowed or avoided completely. Further, the court admonished the parties for failing to review the local rules, which contained additional guidance on handling ESI discovery requests.
Defendants clearly “failed to properly conduct complete, thorough, and timely searches of ESI responsive to the plaintiffs’ discovery requests.” However, plaintiffs’ counsel could not prove with certainty whether the unproduced ESI would contain materials plaintiffs did not already have in their custody. As a result, the court found that the potential prejudice to plaintiffs was purely speculative. Further, plaintiffs exhibited through their arguments that they knew the specific custodians they wished defendants to search. Therefore, the court also found that plaintiffs should have identified these individuals. Ultimately, the court determined that the defendants’ failures to properly respond to the e-discovery requests were due to their lack of familiarity or training in searching for and producing ESI.
The court held that defendants should be sanctioned pursuant to Rule 37. Defendants failed to properly conduct ESI searches, which resulted in a failure to produce all relevant ESI materials. However, because the prejudice was speculative, and there was no evidence that defendants acted in bad faith or that their errors were willful, a default judgment was not appropriate.
The court ordered defendants to retain the services of a qualified third-party e-discovery vendor to conduct the remaining e-discovery searches. In addition, the plaintiffs were awarded attorney fees and costs associated with bringing the renewed motion to compel, and the court recommended that defendants’ motions for summary judgment be denied.
—Brian Deitch, Law Offices of Michael Deitch & Associates, Austin, TX
March 15, 2011
Concern Continues Regarding Juror Misbehavior with Social Media
Ken Strutin of the New York Law Journal offers a cogent summary of the threat to the trial process—and, indeed due process—posed by the increasing popularity of social media among trial participants. Jurors are researching and tweeting about cases, attorneys are researching jurors and potential jurors, and courts are struggling to address the problem.
In one case, a judge ordered the disclosure of a juror's Facebook posts during trial (stayed pending a federal suit filed by the juror against the judge). In another recent case, a magistrate judge proposed creating a temporary Facebook account so that the judge could examine posted material "in camera." Noting that "observing has become synonymous with reporting and the modern jury represents 12 channels of tweets, posts and Web searches," the author concludes that "[c]ontrolling the information flow requires a solution that meets the psychological needs of jurors, satisfies the learning styles of the Information Age, and preserves the sanctity of due process for litigants."
—Jason Zack, Patterson Belknap Webb & Tyler LLP, New York, NY
March 7, 2011
Lawyer versus Machine
A March 4, 2011, New York Times article entitled "Armies of Expensive Lawyers, Replaced by Cheaper Software" reports on how e-discovery software advancements (relating to fuzzy searching and other forms of artificial intelligence) are revolutionizing litigation. The article then suggests that e-discovery software is becoming so effective that it will soon replace (rather than assist) lawyers conducting e-discovery reviews and looking for "smoking guns." Others in the blogosphere, such as attorney Ralph Losey, are not so sure and believe that "[l]awyers will be retooled, not replaced."
—Richard S. Stockton, Banner & Witcoff, Ltd., Chicago, IL
February 24, 2011
A Plateau in E-Discovery Sanctions?
A study published last year in the Duke Law Journal examined hundreds of e-discovery cases and found that courts across the country were more likely than ever to impose a range of penalties on counsel and their clients—most often defendants—for a variety of violations, begging the question of whether there was rampant abuse, an insensitivity to the complexity of modern discovery, or both. A new annual review and analysis by Gibson Dunn & Crutcher suggests the trend may be reversing amid increased sophistication and calls for reform.
—Jason Zack, Patterson Belknap Webb & Tyler LLP, New York, NY
January 26, 2011
Preservation-The Need for Standardization
Judge Paul W. Grimm issued an 89-page opinion using an egregious spoliation case as the backdrop for illustrating the lack of consensus among courts regarding preservation of relevant electronically stored information (ESI). The case demonstrates the need for more consistency across jurisdictions that would allow litigants more predictability in assessing their preservation obligations.
In Victor Stanley v. Creative Pipe [PDF], 8:06-cv-02662, ECF Nos. 377, 378 (D. Md. Sept. 9, 2010) (Stanley II), Judge Grimm sanctioned the defendant with civil contempt, costs, and fees for intentional destruction of ESI, despite repeated orders over the course of two years to preserve it. Many litigants, however, will not find themselves engaged in the level of willful misconduct at issue in Stanley II. Nevertheless, the court’s discussion about the costs, time, and effort of dealing with ESI spoliation and preservation and the commensurate impact on the justice system is timely and useful, as is the court’s overview of sanctions and preservation obligations in different circuits.
Judge Grimm identified and analyzed the lack of uniform preservation standards in federal courts around the country and aptly summarized, using a 12-page chart, every circuit’s standard for the most common preservation issues. The court noted that the varying scopes of the preservation obligation in each circuit—and the consequences for failure to preserve—cause “collective anxiety” for entities that operate over a variety of jurisdictions.
For example, the First, Fourth, and Sixth Circuits impose an obligation on a company to notify the opposing party of evidence in the hands of third parties, while no such obligation exists in the Third, Fifth, and Ninth Circuits. As a result of the differing standards, companies operating in multiple jurisdictions must adopt a preservation policy that adheres to the most restrictive jurisdiction, even if it imposes burdens and expenses far greater than what is required in the other jurisdictions in which they do business. The court opined that although courts generally have tended to overlook it, the scope of preservation should instead be proportional to the amount in controversy and the costs and burdens of preservation.
The court also discussed the inconsistent standards found in different jurisdictions with respect to fault assigned to a party that fails to implement a litigation hold. Judge Grimm noted that while some courts rely on the preservation standards stated in Judge Shira Scheindlin’s well-known Zubulake IV decision [PDF], other courts do not, resulting in discrepancies among the circuits. Thus, litigants cannot predict how uniformly the standards explained in Zubulake IV will be applied in any particular circuit. Judge Grimm opined that a reasonableness standard should be used to determine whether a party failed to preserve relevant ESI.
In using this case more broadly to address the “lack of a national standard” or “consensus among courts” regarding a litigant’s preservation duties, Judge Grimm expressed hope that his analysis would provide “an analytical framework that may enable [lawyers and their clients] to resolve preservation/spoliation issues with a greater level of comfort that their actions will not expose them to disproportionate costs or unpredictable outcomes of spoliation motions.”
Keywords: litigation technology, discovery, preservation, spoliation, ESI, Zubulake
—Maggie Sklar, Greenberg Traurig LLP, Washington, D.C.
January 26, 2011
Backup Tapes-Reasonable Accessibility and Good Cause under Rule 26
The plaintiff was unable to meet his burden to show “good cause” to compel the defendants to restore emails held exclusively in archived backup tapes. In Johnson v. Neiman, No. 4:09CV00689 AGF, 2010 WL 4065368 (E.D. Mo. Oct. 18, 2010), an inmate held by the Missouri Department of Corrections (MDOC) sought production of email accounts that would show the defendants’ “intent, state of mind and to prove other subjective bad feelings towards the plaintiff” that would support the plaintiff’s causes of action.
The defendants moved for a protective order against having to produce archived emails retained on backup tapes. Specifically, the defendants argued that because the emails had already been archived and were no longer hosted on a live server, the emails were exempt from production under Rule 26(b)(2)(B), as the rule precludes discovery, absent good cause, of electronically stored information (ESI) from sources that are not reasonably accessible because of undue burden or cost.
On the issue of reasonable accessibility, the defendants provided an unrebutted affidavit demonstrating that searching for emails prior to June 18, 2008 would require the restoration of 5,880 backup tapes at a rate of 2.5 hours per tape (14,700 hours total), plus an additional 1,122 hours to convert all individual, archived email accounts stored on the restored tapes into usable form, all at an overall cost exceeding $1.1 million. Under these circumstances, the court found that the defendants met their burden to show that the tapes were inaccessible.
On the issue of whether plaintiff demonstrated sufficient good cause to order production notwithstanding inaccessibility, the court applied the seven factors listed in the Rule 26 advisory committee notes. Although the court briefly analyzed each factor, the court ultimately held that no good cause existed, predominantly because of the fourth factor: the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources.
In finding that the fourth factor weighed in favor of the defendants, the court noted that the plaintiff “cannot predict with any certainty whether a search of the backup tapes will yield relevant, useful information or how much information will be produced.” More than any other single factor, the court found it “most significant that the plaintiff has no idea what, if any discoverable information may be obtained by cataloging, restoring, and searching the MDOC e-mails that are stored on the backup tapes.” The failure to articulate more than a “slim likelihood” of finding new and relevant information was the key fact underpinning the court’s ruling.
Keywords: litigation technology, discovery, appeals
—George H. Rau III, Hogan Lovells LLP, Houston, TX
December 27, 2010
Recent Decision in Barrow v. Miner Reveals the Perils of Small-Scale E-Discovery
In a case underscoring the perils of small-scale electronic discovery, multi-use computers, and broad document requests, an Ohio appellate court upheld dismissal of a suit brought by a group of stockholders against a corporation and its directors, determining the trial court did not abuse its discretion by imposing the ultimate sanction for spoliation of evidence where a plaintiff admitted having destroyed data from his family computer after filing the lawsuit.
Despite the plaintiff's argument that the deleted data was irrelevant to the lawsuit, the court found that destroying permissions (by running a disk utility program) and running a data-shredding program on a computer after the defendants requested production of the machine constituted bad faith and willful behavior. The court noted the computer owner was a computer-savvy attorney who knew what he was doing and was aware of his obligations to preserve evidence. The court was also persuaded by defendants‘ argument that even data unrelated to the defendant company "would still be relevant to th[e] lawsuit because it would disclose whether [the computer owner] was working on something other than [company] business while he was supposedly working for the company."
Although it may not have been foreseeable at the time of filing that the defendants would want the plaintiff's machine, it certainly was once they requested its production and at that point, if it couldn't be taken out of service it should probably have been imaged. Likewise, rather than simply requesting relevant documents, electronic or otherwise, it appears to have been a good move to request the plaintiff's computer just in case it might have important information on it.
Keywords: litigation technology, discovery, appeals
—Jason Zack, Patterson Belknap Webb & Tyler LLP, New York, NY
7th Circuit Warns of Dangers of Computers and Tequila, But Gives E-Filer a Pass
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Plaintiffs Motion to Compel ESI Production Denied
Absent a showing of need, plaintiff could not compel production of electronically stored information (ESI) when defendants produced it in paper format. The plaintiff in Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693, 2009 WL 3347101 (E.D. Wis. Oct. 15, 2009), a municipal zoning dispute, alleged that the city and individual members of the city council conspired to deny plaintiff’s right to equal protection under the law by engaging in a series of back-room deals for the purpose of ensuring that plaintiff’s zoning application would be denied. During discovery, plaintiff requested that the city make its computers and any other electronic storage devices available for forensic examination for the purpose of gathering electronically-stored communications between the defendants related to plaintiff’s application. When the city offered instead to produce paper copies of the requested communications, plaintiff filed a motion to compel seeking to immediately sequester all of defendants’ electronic storage devices for examination. Plaintiff raised two arguments in support of its motion: (1) that a paper-only production of defendants’ communications would fail to disclose the full range of information associated with electronic data; and (2) that defendants had failed to adequately preserve their ESI. In response, defendants argued that plaintiff had failed to make any showing that sequestration of their electronic storage devices was necessary and further argued that plaintiff’s request was unduly burdensome. The court agreed, holding that “while receiving a ‘paper form’ of the electronic communication from the defendants may be less helpful than an electronic form, the plaintiff had failed to demonstrate why a more rigorous discovery process, with extensive forensics analysis of the computers by the plaintiffs, was needed.” The court also noted that plaintiff had failed to (1) adequately identify the type of information it hoped to glean from the forensic examination; or (2) explain whether and to what extent the information it was seeking would be obtainable only from ESI. The court was nevertheless critical of defendants’ inadequate efforts to preserve their relevant ESI, which apparently consisted of nothing more than having the individual defendants “click through” their own e-mails to search for responsive documents. Accordingly, while denying plaintiff’s motion, the court ordered both parties to engage in “open and candid discussions.
– George H. Rau III, Hogan Lovells, Houston, Texas.
Cost-Shifting and Forensic Analysis
In Dawe v. Corrections USA, No. CIV-S-07-1790 LKK EFB, 2009 WL 3233883 (E.D. Cal. Oct. 1, 2009), Defendants moved to compel forensic inspection of a third-party plaintiff’s laptop based primarily on evidence that another plaintiff’s laptop had been “forensically cleansed” before it was made available for defendants’ examination. Despite plaintiffs’ argument that all responsive documents, other than those either listed on privilege logs or otherwise objected to, had already been produced, the court agreed and ordered production of the laptop, noting that the high “level of contention and distrust that permeates this litigation” was relevant to its decision. Citing Federal Rules of Civil Procedure 26(b)(2) & (c), the court ordered that the laptop be produced for forensic inspection, that defendants should bear the initial costs of inspection, including retention of a forensic expert. Stressing the value of disclosing metadata, the court noted that “[i]nspection intended to reveal the computer’s metadata is particularly important here, as it will likely include information that may demonstrate whether there has been any transfer or deletion of information, or other efforts to minimize, hinder or prevent access to information; and should provide a record of all sites that have been accessed.” The court also held that the initial allocation of costs may be shifted to plaintiffs if it was later determined that non-privileged information had been unreasonably withheld. Finally, the court ordered defendants’ forensic expert to give plaintiffs an opportunity to review all data extracted from the laptop before disclosure to defendants and withhold any privileged data, which would then be listed on an amended privileged log and verified by sworn affidavit by the expert. The remaining non-privileged data extracted by the expert would then be disclosed to defendants.
– George H. Rau III, Hogan Lovells, Houston, Texas.
Metadata As Public Records
Metadata is subject to disclosure under state public records laws, after all. In Lake v. City of Phoenix, the plaintiff, a Phoenix police officer, sought records related to his work performance evaluations, to be used in parallel administrative proceedings. After the police department produced paper copies of computerized records, the plaintiff suspected that the records had been backdated. Plaintiff then made a second public records request for associated metadata, including actual creation dates, access dates, print dates, and the identities of the individuals who accessed the records. The City, asserting that the metadata was not a public record, denied the second request, and its decision was later affirmed by the trial court and the court of appeals, as previously reported in our Recent Developments column in the Summer 2009 edition of Technology for the Litigator. The Arizona Supreme Court granted review “to address a recurring issue of statewide importance” and reversed. As a threshold matter, the court noted that Arizona law defines the term “public records” broadly and “creates a presumption requiring the disclosure of public documents.” That presumption in favor of disclosure is tempered, however, by the state’s public records law, which exempts government records from public disclosure if “privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.” After closely analyzing the language of the state’s public records statute, the court held that the requested metadata associated with the officer’s employment records should be disclosed because the “[t]he metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page.” In reaching this conclusion, the court also noted that “[i]t would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.”
– George H. Rau III, Hogan Lovells, Houston, Texas.
Attorney Can’t Ask 3rd Party to ‘Friend’ Witness on Facebook, Opinion Says
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Making Better Presentations Inside and Outside of the Courtroom
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Webcasting from the Courthouse
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How to Handle Technology-Bereft Opposition
As Lawyers using courtroom technology to showcase their trials becomes more commonplace, the less tech-savvy litigators are left in the dark. To compensate, they insist on creating a fair ground by: 1) sharing your laptop during the adversary's turn, 2) reserving the right to object to the use of technology in the courtroom and 3) making your digital exhibits available to them. How can you share computer-generated exhibits with the adversary without risking the integrity of your data on the laptop or wasting your firm‘s resources to help the adversary prepare? This article offers some innovative solutions.
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Metadata Found Not To Be of Public Record
An Arizona court of appeals has ruled in Lake v. City of Phoenix that metadata does not fall within the definition of a public record. 1 CA-CV 07-0415 (C.A. Ariz. Jan. 13, 2009). Accordingly, in Arizona, the production of metadata would not be required in response to a public records request.
Metadata is data about other data, which is often hidden data generated when documents are created. Metadata often includes creation date, edit dates, titles, and authors.
In this case, the Plaintiff, a former police officer, requested metadata, or “specific file information contained inside the file,” after he suspected that notes produced by the City had been backdated. However, the majority found that the data did not meet the test established by the Arizona courts for a public record. Specifically, the court found that the metadata was generated only as a byproduct of a police supervisor’s use of his computer and its creation or preservation was not required by law.
One judge dissented stating that because metadata is part of an electronic document that is considered a public record, the metadata must also be considered a public record.
The Blawg 100—Best of the Blogosphere
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Blog Technology 101
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You've Got Mail—And Lots of It!
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Legal Technology Must–Haves
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Technology for the Litigator Leadership
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Membership & Diversity Chair
New York, NY
Social Media Chair
New York, NY
White Plains, NY