The National Attorneys General Training & Research Institute
Electronic Discovery Bulletin July 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.
Craig Ball’s Guide to Backup Systems Updated
E-discovery expert Craig Ball has updated his “Luddite Lawyer’s Guide to Computer Backup Systems,” opining that backup is often ignored until “…it turns out the old tapes in the basement hold the only copy of the all-important TPS reports demanded in discovery.” Ball argues that if a lawyer does not understand how backup systems work, he or she cannot reliably assess whether discoverable data exists or how much it will cost in effort and money to access, search and recover that data. The updated guide may be accessed at https://ballinyourcourt.wordpress.com/luddite-lawyers-guide-to-computer-backup-systems/.
Survey of E-Discovery Businesses
Corporate Counsel released its first Best of Corporate Counsel survey results, with rankings in several e-discovery categories. Note that the results represent only the views of in-house counsel.
- Best Online Review Platform: Relativity by kCura, CloudNine Discovery, Kroll Ontrack
- Best Legal Hold Solution: Thomson Reuters Concourse Legal Hold, Mitratech Legal Hold, Legal Hold Pro by Zapproved
- Best Managed Review Service: Inspired Review, RVM, FTI Technology
- Best Managed E-Discovery & Litigation Support Services: Inspired Review, RVM, Discovia
- Best End-to-End E-Discovery Provider: RVM, Discovia, Epiq Systems
- Best Technology-Assisted Review E-Discovery Solution: Inspired Review, RVM, Discovia
- Best Data & Technology Management E-Discovery Provider: Epiq Systems, Consillo/Huron Legal, RVM
- Best Data Recovery Solution Provider: Discovia, Kroll Ontrack, Consillo/Huron Legal
Best Practices for Dealing With Text
An article by Maureen Holland of D4 Discovery discusses the use of text in e-discovery. It first differentiates between the two different types of text: 1) extracted text files, which are the end result of a process in which native file text
content, title information and native file metadata are extracted from ESI so it can be searched in any database; and 2) OCR text in which digital or scanned image content (TIFF, JPEG, image only PDFs, etc.) are converted into searchable text. As best practices, Holland recommends:
1) When finalizing production orders, ask to have a field called “Source Data Type” included in all deliverables, with either an ESI or image value applied. This gives you the ability to quickly search or filter data deliverables to confirm quality;
2) When building databases, organize data based on whether it is ESI or scanned paper. This will allow you to easily exclude documents with poor text.
3) When sending ESI processing projects to your team or outside vendors, ask how they handle source ESI files where text cannot be extracted. This is important knowledge if your preservation and collection protocols are questioned.
4) Always validate the quality of textual content before implementing any advanced technology solution.
Case Law: Search of Individual Defendants’ Personal Computers OK
In Sunderland v. Suffolk County, no. 13-4838 (E.D.N.Y. June 14, 2016), the U.S. District Court for the Eastern District of New York granted the plaintiff’s motion to compel, determining that her request for individual defendants to search for and produce relevant documents from their personal computers and email accounts was not unduly intrusive or burdensome because the request was limited as to time frame and the parties had agreed on search terms. Jeremy Sunderland, a transgender prison inmate, sued Suffolk County, the sheriff and warden of the County in their official capacities and three County correctional facility physicians for alleged deliberate indifference to her medical needs by denying hormone therapy for gender dysphoria. Sunderland served discovery requests on both the County and the individual defendants, seeking documents and correspondence containing search terms related to gender dysphoria, transgender status and sexual preferences. Agreement was reached on the search terms, but the County refused to conduct searches on the individual defendants’ personal computers and email. Sunderland moved to compel, arguing that she had sued the physicians in their individual capacities, not in their official capacities as County medical staff. The district court noted that Sunderland’s request was well within the scope of relevant discovery authorized under FRCP 26(b), considering her allegations against the individual defendants and claims against the County, so she was entitled to seek the information and emails from the individual defendants’ personal computers which referenced Sunderland and/or issues of gender dysphoria. The court found the discovery request was not unduly intrusive or burdensome, given that it was limited in time scope to a five-year time frame which the individual defendants did not object to in their opposition to the motion. The court granted the motion to compel discovery from the individual defendants’ personal computers and email.
Case Law: Award of Expert Fees for False Statements
In Integrated Direct Marketing, LLC v. May, no. 14-1183 (E.D. Va. June 28, 2016), Integrated Direct Marketing (“IDM”) sued former employee Drew May for misappropriation of confidential and proprietary information allegedly shared with his new employer, Merkle, also a defendant. IDM alleged May wrongfully copied hundreds of files to his personal hard drive. IDM moved for a TRO barring May from disclosing its information; May filed an affidavit stating that he did not retain any of IDM’s files after he was terminated. IDM then filed a motion for sanctions, claiming May’s affidavit contained four false statements, including the statement that he did not retain IDM’s files. At the hearing on the motion, IDM produced evidence from its computer forensics expert showing that May had retained and later deleted IDM’s files. The U.S. District Court for the Eastern District of Virginia found May had lied regarding retaining IDM’s files and directed IDM to file a motion for attorneys’ fees and expert costs. IDM did so, asking for attorneys’ fees and more than $24,000 for the forensic computer expert, whose work included analyzing and imaging the hard drives, drafting the declaration and being deposed. Although May argued the expert’s fees were excessive, the court disagreed, finding the parties and the court needed the expert’s analysis to determine the truth of May’s statements, and awarded the entire amount asked.
Case Law: Arguing Undue Burden
In FDIC as Receiver for AmTrust Bank v. Ark-La-Tex Financial Services, LLC, no. 15-2470 (N.D. Ohio June 24, 2016), the FDIC sued defendant mortgage broker for alleged breaches of contractual warranties and representations made in a master broker agreement, all of which arose during the brokering of six mortgage loans under the agreement. The FDIC alleged that the mortgage broker submitted false information to lender AmTrust Bank prior to the bank’s closing and the FDIC’s receivership. The FDIC also claimed that the broker failed to indemnify the FDIC for the losses. During discovery, the broker stated that the FDIC’s responses to discovery were insufficient, and so the FDIC supplemented them. The broker continued to be dissatisfied after the FDIC again supplemented its responses, and the broker filed a motion to compel, seeking documents relating to the AmTrust Bank’s policies and procedures relative to approval, finding and underwriting of loans; as well as documents relating to the decision-making process and quality control review of the six loans. The FDIC objected, arguing the requests were not relevant, were overburdensome and not proportional to the needs of the case. The district court disagreed, finding the requests were relevant to the broker’s affirmative defenses. As to proportionality, the court found the FDIC’s arguments as to burden unpersuasive. The FDIC’s expert had stated that trying to identify the documents sought would require the FDIC to use an expansive set of search terms that would yield “tens of thousands” of documents from a library of more than 1.5 billion pages, with a preliminary search already yielding more than 5,800 documents. The court found the expert’s argument insufficient to show that the burden outweighed the benefit. It held that the FDIC did not make a good faith effort to search for the documents before it determined that it would be burdensome and ordered the FDIC to comply with the requests.
The E-Discovery Bulletin is a publication of the National Association of Attorneys General.
Hedda Litwin is the Editor of the E-Discovery Bulletin, and she can be reached at 202-326-6022.
Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation.