The Modern Archivist

There are no Gods in e-discovery

                Don’t get me wrong, I have enjoyed my Facebook account even if I seldom use it these days.  And, while FB appears at the moment to be the pinnacle of social networking sites satisfying millions of users worldwide (sorry FB, the praise ends here), I doubt that this elevates Facebook to a litigation God.  Apparently, however, FB thinks otherwise:  it shouldn’t have to be subject to the meet and confer requirements of the FRCP or the Sedona Conference’s Cooperation Proclamation.  Nor does it believe it should be required to allow its “sensitive” data to be effectively reviewed by its opposition.  The courts think otherwise:  FB just isn’t that special.

                In the April 6 decision in In re Facebook PPC Advertising Litigation, the court ruled in favor of Plaintiff’s Motion to Compel requiring FB to comply with the rules of e-discovery.  After being frustrated by FB’s attempts to thwart plaintiff’s discovery, plaintiff sought court assistance requesting, among other things, that the court require the parties to develop an ESI protocol with the hope that FB will follow the rules and play fairly.  Of course FB argued that an ESI protocol wasn’t necessary and would only “result in frustrating and slowing down the discovery process.”  Evidently, uploading the documents onto a web-based document review platform that 1) prevented plaintiff from printing documents, 2) placed expiration dates on uploaded documents, 3) tracked which documents were reviewed and by whom, and 4) rendered documents non-searchable or non-annotatable does not result in frustrating and slowing down the discovery process.  Hmm, perhaps if it only affects the plaintiff, then it doesn’t frustrate and slow the discovery process.  (Sorry plaintiff’s bar, perhaps I am biased here having served on the defense bar.)

                Notwithstanding, the court saw the error of FB’s ways: It ordered FB to enter into an ESI protocol, specifically pointing out the Sedona Conference Cooperation Proclamation and the meet and confer requirements of the FRCP.  It also halted FB’s current tactics to frustrate and delay discovery: FB has been ordered to stop using the web-based review platform and actually reproduce the data in a searchable form (costs to be paid for by FB?).  The message is clear.  Come down off your pedestal FB and act like every other litigant out there.  

                One tip for FB: the less you mess with e-discovery, means fewer court decisions to be rendered and made publicly available, resulting in a smaller likelihood that your “sensitive” data might not be alluded to in opinions that we all love to read.  And hence, fewer blogs.

Listen to the Court!

                Ok, I admit, I want to blog about Chief Judge Lamberth’s Memorandum Opinion in DL v. District of Columbia because I really want to quote the judge:  “Imagine a standup comic who delivers the punch-lines of his jokes first, a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes.  That’s what document production after trial is like – it defeats the purpose.”  See page 1.  And that’s only one of many memorable quotes in the Chief Judge’s decision to deny the District of Columbia’s Motion for Reconsideration of the sanctions it received for its e-discovery violations.

                The lesson to be learned here is that when a court renders an order, it’s not because it enjoys applying ink to paper.  They mean business.  And, as the Court noted, orders can also be rendered to provide guidance to those who may need some hand holding because the federal rules have failed to provide that party the clarity needed to be compliant with them.  See page 11-12.  In DL, the District failed – on numerous occasions – to adhere to the Court’s order.  According to the court, the District had “its head apparently buried in the sand….”  See page 5.  My take from this:  practicing law while acting like an Ostrich is not a good way to practice.  Sure.  It’s a bit of an understatement.  But you get the point.

                The seriousness of court orders, not just the order in DL v. the District of Columbia, seems to be missed by many litigants who are dealing with e-discovery issues.  It isn’t always clear how many of the failures are due to a flat out disregard of the orders.  I imagine that most litigants don’t set out with the mindset that they are going to willingly disregard orders given to them by a higher authority.  Rather, blatant disregard or egregious failures to comply with discovery rules and court orders appears more likely to be related to companies and attorneys who still don’t quite get the complexity and costs of e-discovery. 

                Another point I gleaned from the Chief Judge’s decision:  be transparent.  Most of us involved with electronic discovery know how complex it can be and how voluminous the data is.  When faced with trouble, ask for help.  Don’t walk blindly through the sandbox.  Transparency in e-discovery appears to be rewarded more frequently these days.  To quote the Chief Judge one more time:  “The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through [discussions at status conferences, motions for extension of time or status updates to alert the Court].”  See page 14.  If you wait until trial to express your concerns and problems, your chances of failure are extremely high.

                Ultimately, the District was ordered to turn over all the emails within a week of trial and waived any claims of privilege.  The plaintiffs will have an opportunity post-trial to introduce new evidence found amongst the District’s most recent product, which, of course, could include privileged materials.  Not a position I would want to be in.

What will be the end when we arrive?

                And the Rambus drama continues… .  The Federal Circuit, in its May 13^th decision Micron v. Rambus , agreed with the lower court that Rambus engaged in spoliation, but it remanded the matter for a determination of whether bad faith and prejudice were sufficient enough to warrant the terminating sanction issued by the District of Delaware.  The Federal Circuit also remanded the companion case Hynix for further proceedings that are to conform with Micron.  Whether or not this is good news for Rambus remains to be seen.  For the moment, however, the Federal Circuit seems to be intimating that the terminating sanction issued by the District of Delaware in Micron might be a tad harsh and need to be reconsidered to ensure that Rambus actually acted with sufficient bad faith that prejudiced the other parties.

                It seems like a strange decision in the face of facts that seem to point in only one direction:  bad faith and prejudice.  Rambus implemented a document retention plan that required destruction of relevant and discoverable evidence until the commencement of litigation despite the inevitability of litigation. “Despite the policy’s stated goal of destroying all documents once they were old enough, [Rambus’s VP of IP]  instructed employees to look for helpful documents to keep, including documents that would “help establish conception and provide that [Rambus had] IP.”  See pages 7-8 of Micron v. Rambus.  The document destruction extended to email backup tapes because Rambus feared that the tapes had “’discoverable information.’”  The litigation department would not let Rambus keep the tapes for longer than three months with one exception – a tape that had documents that were beneficial to Rambus.

                Additionally, Rambus held two “shred days” where employees shredded 700 boxes of paper documents.  No record of what was shredded was kept.  Rambus also instructed its patent prosecution counsel to shred documents that were relevant to the supposed IP.  Sounds almost conspiratorial in nature and makes me think of Broadcom v. Qualcomm.  Moreover, the record is replete with comments from Rambus executives of impending litigation, delays in litigation, licensing or litigation its IP, etc. 

                Despite the Federal Circuit’s hesitation on confirming the Delaware District Court’s terminating sanction, one thing does appear to be clear:  where documents are destroyed under a retention policy requiring destruction, with the exception of those documents that are favorable to the company, even though litigation is inevitable even if not imminent results in spoliation.  Of course it is not wrongful for a business to have a valid retention policy that rids it of unneeded documents.  But, what a valid policy is, however, still has plenty of shades of grey.  “[W]here a party has a long-standing policy of destruction of documents on a regular schedule, with that policy motivated by general business needs, which may include a general concern for the possibility of litigation, destruction that occurs in line with the policy is relatively unlikely to be seen as spoliation.”  See page 16 of Micron v. Rambus.  Regardless, frustrating your opponent’s ability to defend itself in litigation is not a valid retention policy.

                Despite the evidence against Rambus that strongly supports a conclusion of bad faith and prejudice, we will have to wait for another day to learn what sanctions might be applied to Rambus’s spoliation.  Perhaps the courts will consider a scarlet letter sanction such as the one issued in Green v. Blitz?  Not that Rambus hasn’t already been dragged through the limelight.

The Scarlet Letter Sanction

There appears to be a new neighbor on the block of e-discovery sanctions: the scarlet letter. Among monetary sanctions, the judge in Green v Blitz, 2011 WL 806011 (E.D. Tex March 1, 2011), sanctioned defendants by requiring them to provide his opinion to every plaintiff in every lawsuit it has preceding against it for the past 2 years and to file a copy of the opinion in every court where it is a participant in a suit for the next 5 years. Blitz has begun the walk of shame.

Obviously, there are logistical issues with enforcing this type of sanction. I find it questionable how effective a sanction that requires a dishonorable party to comply with the honor code if the court itself doesn’t actively monitoring of the party. There is no mention of how defendant would be monitored. Perhaps this is an opportunity for some savvy entrepreneur to create a program to monitor compliance with scarlet letter sanctions. Just a thought.

Regardless, if Blitz actually complies with the sanction, or the court monitors Blitz into compliance, perhaps wearing the scarlet letter will act as warning to others that if they willfully fail to comply with their e-discovery obligations, they too could wear the scarlet letter. At the very least, Blitz’s opponents will now know that Blitz is not to be trusted: anything Blitz does should be looked at not once, not even twice, but multiple times under a very high-powered magnifying glass for any scintilla of evidence that they are not coughing up all the evidence. A side effect could be an increase in motions to compel doubling the courts work load. Will the court be ok with that? Will the purpose of the sanction be effective? Only time will tell.

So, the sanction begs the question: What, oh what, did the defendant do to warrant such punishment? It willfully failed to produce documents. You would have thought they’d have learned by now: the courts are losing their patience and becoming, to say it gently, ticked-off about willful failures to produce electronic materials. But, perhaps because this is a products liability case, and not one of the more traditional large commercial litigation disputes already well-versed in e-discovery, Blitz had not quite figured out that it, too, was part of the e-discovery universe.

This case dealt with a gas can that did not have a flame arrester, the addition of which may have prevented the death of plaintiff’s husband. An obvious document to produce would be one that had the words “flame arrested” in it. But, Blitz failed to produce at least a few of those emails, some that specifically had a subject header of “flame arrester.” But let’s give them some slack. After all, the person in charge of discovery described himself as “about as computer literate-illiterate as they get.” I’ll let you draw your own conclusions about how far that defense got them.

In addition to shoddy searches, during the relevant time frame, Blitz’s IT department routinely sent emails requesting its employees to delete emails – not just from the inbox, but from the deleted and sent folders as well. Their ability to be thorough and persistent in asking their employees to delete emails was not transferred to implementing legal holds and preserving documents for discovery. Nor was Blitz forthcoming about documents it claimed were work product, but which it failed to list on its privilege log.

I’d bet all my poker chips that Blitz probably thought it wouldn’t get caught. Unfortunate for them that counsel for plaintiff in this matter was also counsel for a plaintiff in another similar matter where emails relating to subject matter of this suit were produced. (By the way, from my experience in the world of personal injury and products liability, it’s not exactly uncommon for a single plaintiff’s attorney to bring multiple suits against the same defendant.) Regardless, it will indeed be interesting to see how this sanction impacts e-discovery and what the next creative sanction could be.