The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

Electronic Discovery Bulletin October 2016

The following is a compendium of articles and case law that may be of interest to our AG offices that are dealing with electronic discovery issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view neither as to the accuracy of the articles nor as to the position expounded by the authors of the hyperlinked articles.

“Black Box” Redacting: How Not to Get “Burned”

It may seem like a simple task to redact a document during review in order to obscure confidential or privileged information. Just drawing a black box over the selected text should solve the problem, right? Not so fast – there’s more to consider to ensure you do not inadvertently produce information you intended to block. Below are some common errors with solutions to avoid doing so from ediscovery blogger Doug Austin.

Failure to “Burn” the Redaction Into the Image. If the redaction isn’t “burned into the image so it can’t be removed, the redacted data can still be viewed. All your opponent needs to do is cut and paste to remove the black box. If you are using a review application, it should ensure a “burned in” redaction for documents exported or printed. For PDF files, Acrobat provides a redaction tool, but it’s still best to also save the redacted file with a new name.

Failure to Update Corresponding Text Files to Remove Redacted Text. Even with a properly done redaction, redacted text can still be disclosed if you don’t ensure that the corresponding text file is updated to remove the redacted text.

Producing Un-Redacted Native Files. If you’re producing native files, it’s best to discuss with opposing counsel how to handle redaction. The typical approach is to convert those files to an image format and then redact the image, but sometimes parties want to “redact” the native files themselves. In that case, the parties should agree on a procedure where the text is deleted or replaced (with track changes off) with an equal amount of fill-in characters, such as “X’s,” to preserve page flow and pagination. You could also agree to copy the entire redacted document to a new file to remove any remaining residual information.

Failing to Redact Metadata. You can redact content on the document that you produce separately as metadata, via a load or data file. Failing to check the produced metadata for redacted documents could allow redacted data to slip through.

Quality Control Check Before Printing. It is helpful when producing documents with redactions that you have a checklist to ensure that image redactions are “burned” on, that native files are redacted properly and that corresponding text files and metadata have been checked to ensure that redacted data has been removed from them as well.

Free Webinar on Technologies and Providers

This one-hour webinar, scheduled for Thursday, November 3, 2016 at 1 pm EST (12 noon CST, 10 am PST), will provide an overview of the evolution of e-discovery technologies and also share with attendees ways they can consider and compare technology offerings from the large number of providers supporting litigation. It will also include an overview of the attributes of fourth generation e-discovery automation technology. Presented by Heureka and CloudNine, register for the webinar at http://www.ediscovery.co/event/aceds-webinar-simplified-ediscovery-automation-from-evolution-to-revolution/.

The Specificity Requirement for Objections to Document Requests

Under the 2015 Rule amendments, Rules 34(b)(2)(B) and 34(b)(2)(C) require that parties objecting to document requests state with specificity the grounds and reasons for their objections and further require the objecting party to state whether responsive discovery material is being withheld pursuant to the objection. Prior to the amendments, the requesting party did not know whether any materials were being withheld. As to the withheld documents themselves, the Notes to the Rule state that the objecting party does not need to provide a detailed description or log of all withheld documents, but does need to advise that documents are being withheld and thereby “facilitate an informed discussion of the objection.” The Notes add that an objection that states the limits that controlled the search for responsive and relevant documents qualifies as a statement that materials have been withheld.

An objection may state that a request is overbroad, but if the objecting party recognizes that some part of the request is appropriate, the objection should state the scope of the part that is not overbroad. For example, a statement that the responding party will limit the search to ESI created within a given time period prior to the events of the suit, or to specified sources. In such a case, the statement of what has been withheld properly identifies as “withheld” anything beyond the scope of the search specified in the objection.

The takeaway? If you are in federal court and are objecting to a document request, remember to state whether you are withholding any responsive materials or, in the alternative, describe the searches you used to collect responsive documents.

Advantages of In-Place Records Management

When it comes to effective records management, many people think the data has to be moved to a centralized location, such as a server, to be managed effectively. Julie Lintner in RecordLion argues that you can also effectively manage that data where it resides with an in-place records management solution. According to Lintner, the solution is in managing the retention policies and overall file plan for the content, and unless there is a valid case for moving records, moving them could have security and workflow implications. Lintner lists the following advantages for an in-place management solution:

  1. Users can still fine their documents in the same place, searching and viewing them the same way without going to a different location.
  2. Security does not have to be replicated.
  3. Workflow does not have to change, with no need to update them to incorporate a new location.

Case Law: Preservation of Text Messages

In Shaffer v. Gaither, no. 14-00106 (W.D.N.C. Sept. 1, 2016), Whitney Shaffer claimed she was constructively discharged when she quit her position as an assistant district attorney because of sexual harassment by then District Attorney James Gaither. Shaffer also claimed Gaither defamed her by saying she was fired for having a sexual relationship with a married defense attorney, a relationship she acknowledged but denied as the reason for her termination. Gaither moved for dismissal for destruction of ESI, arguing that Shaffer’s relevant text messages were lost when she dropped, and thereby destroyed, her cell phone in a bathroom after she had threatened litigation. Shaffer claimed she no longer had the phone or the SIM card, as they were sent to her insurer, but that the text messages were not relevant to the case. The court found that Shaffer failed to take reasonable steps to preserve the text messages, but could not conclude that she acted with an intent to deprive Gaither of the evidence. The court denied the motion for dismissal, noting that the content of the texts might still be determined through testimony, but reserved the potential imposition of sanctions after all evidence was presented.

Case Law: Reorganization of Document Production

In State Farm Mutual Automobile Insurance Co v. Universal Rehab Services, Inc., no. 15-10993 (E.D. Mich. Sept. 26, 2016), State Farm Mutual Automobile Insurance Co. (“State Farm”) sued Universal Rehab Services (“Universal”) alleging Universal engaged in a scheme to submit fraudulent insurance benefit claims. Universal propounded requests for production, and State Farm produced 380,000 documents, which it separated into categories. Universal, however, was dissatisfied, and moved to compel State Farm to identify and organize the documents with more specificity, including identifying to which requests the documents were responsive. State Farm argued that the Eastern District of Michigan imposes no duty to identify which documents were responsive to which requests. State Farm noted that it had provided a cover letter identifying the documents by category with each production and had also included an electronic file containing information about each document, including confidentiality, email subject and sent date. The court agreed with State Farm that it had no duty to further organize the production and denied the motion.


Hedda Litwin is the Editor of E-Discovery Bulletin and may be reached at 202-326-6022. The E-Discovery Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail hlitwin@naag.org.

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