The Modern Archivist

The Nebulous Nature of eDiscovery

By Linda Sharp, ESQ., MBA

One of the most contentious aspects of eDiscovery litigation is what constitutes a “reasonable” eDiscovery request. What is reasonable to one party may not seem so reasonable to the other. We have attempted to put it into context under the proportionality test from FRCP 26(b)(2) which mandates that the court, “limit the frequency or extent of discovery otherwise allowed…if it determines that the burden or expense of the proposed discovery outweighs its likely benefit.” This ruling also brings into consideration certain variables such as how the requested information pertains to the needs of the case; the available resources of the requested party; and the importance of the requested information in the case. However, even with this guide, the entire concept of reasonable discovery is quite blurry.

An example of the contemporary zeitgeist of eDiscovery is the recent case of Bradley B. Larsen vs. Coldwell Banker Real Estate Corp (C.D. Ca. Feb. 2, 2012) overseen by United States Magistrate Judge Marc L. Goldman. In this matter, the plaintiff accused the defendant of performing insufficient eDiscovery efforts and, therefore, not compliant with the court’s orders regarding eDiscovery. The plaintiff propounded a second round of production of electronically stored information (ESI), a “re-do” if you will, from the defendant with a stipulation that a neutral third party perform the collection and processing of the ESI.

Judge Goldman, citing the Sedona Conference Principles, deemed that the plaintiff must show that the defendant’s steps to preserve and produce relevant ESI were inadequate for a second round of production to be ordered. The plaintiff was unable to show enough facts to lead to this second round. Due to this lack of evidence, Judge Goldman dismissed the request.

Judge Goldman deemed that the collection of ESI performed by the defendant, which included over one-thousand man hours of processing, collecting, and reviewing ESI (costing in excess of $100,000), to be sufficient. This process produced nine-thousand pages of information of which the plaintiff could only cite two examples of information that might be missing.

Although, over the past few years, this concept has become more defined thanks to the proportionality test and recommendations by the Sedona Conference; however, this is still not an exact science. New strategies and technology are available in the industry to reduce the burden of collecting, processing and review. As corporations and their lawyers begin to embrace this technology, perhaps we’ll return to debating the merits of the case.

Score One for Peck

By Linda Sharp, ESQ., MBA

Earlier this year, Magistrate Judge Andrew Peck made a landmark ruling involving eDiscovery in the gender discrimination case of Monique da Silva Moore, et al. v. Publicis Group SA, et al, 11 Civ. 1279. He became the first judge to permit the utilization of technology assisted review (TAR) in a court of law. After this, pundits from every crevice of the eDiscovery world came out and gave their two cents about the matter and what it meant for the world of eDiscovery. Well, Judge Peck was back in the news again this week—this time after the plaintiff in this case tried to remove him from the case and unwind this landmark decision.

This request was rebuked by Federal Judge Andrew Carter of the US District Court for the Southern District of New York (the hotbed of eDiscovery rulings) citing that manual review with keywords is costly and prone to human error—though apposite in certain situations—so TAR was an appropriate action in this case. (read his entire ruling here). It should be noted that in this case, da Silva was tasked with reviewing over three million emails which was a driving impetus behind Peck’s support for the utilization of TAR. This volume of data could have been less if the party involved had utilized a technology that would have reduced the volumes of data being managed—thus eliminating this issue from its onset.

What we can glean from this development is that TAR is going to begin to rise in importance in the eDiscovery world and, with this, more questions. How do you decide when to utilize TAR? What are the benchmarks? Which courts will embrace the technology? We’ll stay tuned. There is one thing about the law, it may be slow, but it is ever changing.

The Disaster From Below

By Linda Sharp, ESQ., MBA

In April 2010, The Deep Horizon Oil Spill off of the Gulf of Mexico made history as the largest environmental accident in US history. Almost exactly two years later, it made history again, but this time in the world of eDiscovery. Federal agencies have filed charges against an underlying employee for obstruction of justice due to his failure to properly preserve electronic information. The, charges, rumored to not be the only charges that will be filed, were brought against a Mr. Kurt Mix of Katy, TX who was a drilling and completions project engineer for BP involved in effort to monitor and stop the oil leak.

The charges, surmounting to two counts of obstruction of justice and filed in the Eastern District of LA, surround two-hundred text messages regarding the oil spill that Mr. Mix allegedly deleted despite being told, in October 2010, to retain any and all information regarding the spill. These messages dealt with the volume of the spill and the fact that Top Kill (an attempt to stop the leak) was most likely to fail despite the fact Senior Level Executives at BP were telling the media that there was a 70% success rate.

Prosecutors are focusing on Mr. Mix because of the possibility that this investigation may eventually show that corporate officers hid the full extent of the oil spill to protect BP from even greater fines and further drops in their stock prices. This is just the tip of the iceberg in what will be a long, and drawn-out, investigation against BP. As for Mr. Mix, he faces a maximum penalty of twenty years in prison and a fine of up to $250,000 per count if convicted.

So, the question is, how can you avoid this type of a headache? Technology is available that can not only capture every text message sent and received between employees or external to the organization, but, implement a legal hold process as well. This technology ensures that data from defined custodians is not deleted, until said persons, or portions of their information, is deemed not pertinent to the investigation. This technology may have saved BP yet another headache.

The Collision of Public and Private Life

By Linda Sharp, ESQ., MBA

In today’s technological world, young people use Social Media as a place to broadcast their daily activities. Well, the young are growing up and Social Media isn’t just for the young, but the young at heart, and the law, which has been known to be resistant to change, is finally catching up. Last week, the Maryland General Assembly passed SB 433 (HB 964) which deals with the role of social media in a company’s employment process. More specifically, it prohibits employers from asking for current and prospective employees’ usernames and passwords to social media sites. All that is needed now for it to become law, the first of its kind in the United States, is for Gov. Martin O’ Malley to sign it. There is speculation that this will cause a cascade affect with many other states following in suit (IL and CA are already considering the same legislation).

The impetus for this bill arose out of a complaint filed by the Maryland Chapter of the ACLU apropos of the employment process for Corrections Officer Robert Collins. Mr. Collins contacted the ACLU after being asked for his Facebook password during his re-certification interview with the Department of Public Safety and Correctional Services. The ACLU’s complaint made its wade through the various levels of legislature until it was manifest into SB 433 (HB 964).

The Department of Public Safety and Correctional Services defended its policy of reviewing social media sites as effective as it had been a factor in the denial of employment to several unfit applicants over the course of the past year. They cited that many of these applicants had photos online flashing verified gang signs—something, they argue, that would not have been discovered without this policy.

What this case highlights is the contemporary convergence of public and private life that is occurring with the expansion of social media and the issues that come with it. In these types of cases, a contemporary axiom that needs constant repetition is, “watch what you put online for nothing online is private.” When in doubt, a good rule-of-thumb is, “if you would be embarrassed by showing it to your grandmother, keep it to yourself.”

A First Name Basis

By Linda Sharp, ESQ., MBA

The recent case of Jacob v. Duane Reade, Inc. highlights one of the major issues facing companies that must review million of documents for a court case—making sure documents that fall under “attorney-client” privilege are not produced. In this case, assistant store managers at Duane Reade (a New York-based pharmacy) were pursuing a collective action against the store for overtime wages. During the case, Duane Reade inadvertently produced a privileged, two-paged email during its review process. Magistrate Judge Katz of the US District Court for the Southern District of New York ruled that this document could not be clawed back due to the request for claw back not being produced in a timely manner.

What occurred was that Duane Reade needed over two million electronic documents reviewed in under a month and sent these documents off to an outside vendor for review. The content of the accidently-produced document revolved around a meeting amongst several individuals including an in-house attorney. Duane Reade’s defense to the disclosure to the inadvertent disclosure is that this document was neither to nor from an attorney and only mentioned the in-house attorney in the body of the paragraph (under the name “Julie”) although discussing advice received from her.

In order for a court to grant a “claw back”, the judge must take the following five things into consideration: “(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) ‘the scope of the discovery;’ (4) the extent of the disclosure; and (5) an over [arching] issue of fairness.”

Judge Katz determined that the first requirement passed muster but decided that the second item, (“the time taken to rectify the error”) was too long, in light of the fact that the document had been introduced at deposition. The document was first produced on November 8, 2011 to be used as an exhibit at a deposition hearing. During this deposition, Duane Reade’s counsel had no qualms with the utilization of the document, and it was not until two months later, when another attendee at this meeting was notified for deposition, that Duane Reade realized the privileged nature of the email.

So, what is the moral of this story? In the world of eDiscovery, prophylactic measures could go a long way. Perhaps a 502 stipulated agreement and order between the parties, at the inception of the case, could have prevented this outcome. Alternatively, had the information been maintained in a Unified Archive ™ environment, this could have reduced the volume of documents to be reviewed by allowing the company to eliminate non-business records or business records that have passed their useful life in an automated or quasi-automated process. Thus, this process could have potentially, given the short time frame, made this less of a Herculean task and reduced the likelihood of producing privileged information.

Football, Email, and a Critical Discovery

If you’re a sports fan, or if you’re surrounded by any at work, or if you read/watch/listen to the news, you’ve probably heard that NFL New Orleans Saints head coach Sean Payton was suspended yesterday, without pay, in the heat of scandal. The purported wrong-doing involved bonus payments to Saints for injuring opposing players and knocking them out of the game. This “bounty,” as it is being gleefully referred to in the press, targeted specific high-profile players to attack.

This scandal comes to light in a time when officials in the National Football League have gone so far as to change game rules to create a safer environment for the players of this hazardous, hit-heavy sport.

Commenting on the Saints scandal, NFL commissioner Roger Goodell stated:

Let me be clear. There is no place in the NFL for deliberately seeking to injure another player, let alone offering a reward for doing so. Beyond the clear and continuing violations of league rules, and lying to investigators, the bounty program is squarely contrary to the league’s most important initiatives – enhancing player health and safety and protecting the integrity of the game.

Fortunately, this conspiracy to critically injure players was discovered before any serious damage could be done. One involved party, a peripheral Saints supporter named Michael Ornstein, laid out the details of the bounty system in an email to Coach Payton, where he also increased his investment to the effort to $15,000. This email proved crucial for investigators in understanding the nature of the crime and the extent of the coach’s involvement.

The New Orleans Saints and their head coach are being made examples of for the rest of the NFL. In a sport closely associated with traumatic brain injury, providing incentive for gratuitous violence cannot be tolerated. By accessing the Ornstein email, the league was able to assess the problem internally and successfully take action against the scheme. Without a system in place to search and monitor emails, the situation may never have been uncovered and prosecuted. And who knows how many NFL stars would have paid that price.

What is ‘Big Data’?

By Benjamin Lee

The Global Language Monitor (GLM) has recently released a list of the most confusing tech buzzwords that are in use today and at the top of the list is ‘Big Data’. It is one of the hottest and most common words being used in the tech industry today, so what exactly is it?

In simplest terms, Big Data is referring to the HUGE amount of digital information that exists today. For a more formal definition, TechTarget states that “Big data (also spelled Big Data) is a general term used to describe the voluminous amount of unstructured and semi-structured data a company creates. Although Big Data doesn’t refer to any specific quantity, the term is often used when speaking about petabytes and exabytes of data.” To give you a better sense of how much data we are talking about, ONE petabyte will capture over thirteen years of HDTV video. Fifty petabytes is enough to capture every single written work by man in every single language since the beginning of recorded history. Yeah, that’s a lot of data.

Most definitions of the elusive term refer to the sheer volumes of data.. Yet another “Big” aspect is the wide variety in the types of data that continue to form. With the advent and increasing popularity of unstructured content through electronic communication, data types such as social media text, BlackBerry messages, SharePoint files, and Bloomberg messages continue to play increasingly significant roles in both our personal and professional lives. This is just the tip of the iceberg, too. With new technologies springing up left and right, there is a whole lot more to come.

Forward-thinking companies will find an archiving solution to store and manage all of this data with one key attribute in mind: scalability. The Big Data volumes are only getting Bigger and organizations will need a solution that can grow with the times.

Google Glasses Rumors For Real?

By Benjamin Lee

Rumors are out that Google has been developing a set of glasses that could take the place of smart phones. Users would be able to do everything they could on a smart phone— surf the web, email, text, make calls, and utilize social media! However, instead of using their hands, users would employ a series of head tilts and flicks to control the mouse and display. In addition, a camera would be installed that could open up even more possibilities. Imagine peering at a restaurant and instantly seeing reviews, comments, and special deals offered online! Imagine walking through a crowd during rush hour and spotting that long lost friend you haven’t seen in years with the glasses’ facial recognition features! Imagine getting virtual GPS turn by turn directions to the destination you seek, without taking your eyes off the road!

These rumors point to the fact that more and more about our lives—where we go, who we see, what we do, etc. — are getting digitalized and stored. And as this information becomes more accessible and concrete, the need to archive this data becomes inevitable. The Google glasses will make it even easier to use email and social media, along with introducing even more unstructured data. If this information is generated on an employer’s clock, it will most assuredly need to be captured and turned into business intelligence. Just as the possibilities for the Google glasses become truly unlimited, the scope of enterprise archiving will need to grow in tandem.

To Preserve or Not to Preserve- Is that the Question?

By Alexander Gershon

After much fanfare, Judge McMahon of the Southern District of New York Federal Court upheld the lower court’s ruling in the case of Pippins v. KPMG LLP that the defendant, KPMG must preserve all hard drives that may be related to the case. How does this ruling affect future cases? It is important to first understand the basis of this case.
Audit Associates and Audit Associate Seconds, which worked in the KPMG Audit practice group, filed a class action against KPMG. They claim KPMG misclassified their employment to avoid paying overtime salaries.
KPMG was asked to preserve existing hard drives that may be relevant to the case. KPMG argued using the Proportionality Claim[1], that because the number of plaintiffs was so high, preserving all of this data would be unnecessarily expensive.
KPMG had to preserve any hard drive that could contain relevant information to this case and the “key players” in the case. “Relevant” could be interpreted as anything that could reasonably lead to other information that could have an effect on the case, and “key players” are anyone who is likely to have any discoverable information that may be used to support claims of the defense or plaintiff. When these definitions were applied to the court’s view that any person who might opt into the class action would be a potential plaintiff which meant that their data would also have to be preserved. One can readily see how the costs of preservation could potentially skyrocket. .
Yet the decision of Judge McMahon, and the lower court, was a rejection of this proportionality claim on the basis that the court could not conduct an accurate cost-benefit analysis since neither the cost nor the benefit of preservation had never been determined, even on a partial basis. Judge McMahon decided that he, alongside the plaintiffs, were never given adequate opportunity by KPMG to understand the costs or benefits of preservation thereby making the proportionality test impossible.
What does this mean for the future of eDiscovery? If you are a big-name company with a lot of data to preserve, an inexpensive and efficient means to preserve all of your data should be one of your top priorities. Additionally, the retrieval process must be fast enough for both sides to have ample opportunity to review it.

[1] The Proportionality Claim (or Proportionality Test) is a cost-benefit analysis in which the court weighs the cost of producing evidence against the benefit of producing it. This is done in order to limit the frequency or extent of discovery where the expense of it likely outweighs its benefit. What is interesting about this case is that this test is being applied to preservation and not production.

Hide the Matches!!

By Elle Byram. Esq., CEDS

While some destroy records through shred days (no names mentioned), others do it by burning technology. I presume that’s one way to try to ensure your data is destroyed. It’s also one way to ensure you will be sanctioned. Which is exactly what happened in Evans v. Mobile County Health Department, 2012 WL 206141.
Sandra Evans brought suit against her employer for reverse discrimination and retaliation. Plaintiff filed suit in November 2010 and was subsequently ordered in the spring of 2011 to retain all relevant electronic materials. In June or July of 2011, Plaintiff’s computer allegedly “crashed” and she was advised by the Geek Squad at Best Buy to just buy another computer. Despite her suit and preservation requirements, plaintiff chose to burn her computer. She did not transfer the contents from the old computer to the new computer she had purchased. And, she did not to mention in her deposition that she had burned her computer. Her rationale for burning the computer: she did not want anyone to access the confidential information she had on the computer. But who would when you are in the midst of a lawsuit?
In discovery, defendant learned that plaintiff had taken notes of the alleged discrimination and had other emails and materials as well. Plaintiff produced excerpts of her notes but not complete copies. Defendant repeatedly asked for the information to no avail. The reason for plaintiff’s failed production are now, of course, obvious.
The court gave little credit to plaintiff’s cries that she needed to protect her confidential information and did not seem to understand why protection such as burning a computer would be bad in the middle of a lawsuit. “Given that plaintiff knew enough about computers to know someone could access the information/data on her computer even though it had ‘crashed,’ the [Court] finds that plaintiff fully appreciated that she could have transferred the information from her ‘crashed’ computer to the new computer she purchased.” Id. at 12. The court determined that plaintiff’s “culpability is excessively high. After all, she burned her personal computer after she filed her lawsuit … and an order was entered by this Court that she take steps to preserve all relevant electronically-stored information in her possession.” Id. at 19.
As a result of her willful destruction of evidence, the Court ordered an adverse inference instruction – if plaintiff survived summary judgment – and was required to pay attorney’s fees and expenses for the defendant’s motion to dismiss as a result of the destruction. If plaintiff fails to pay up, her suit will be dismissed.