e-Discovery Library

What are the basic books for an e-discovery reference library?  There are many right answers, but the following would make almost everyone’s top ten list:

Electronic Evidence and Discovery Handbook: Forms, Checklists, and Guidelines, ABA Section of Law Practice Management

Electronic Discovery and Evidence: Best Practices Guide, Michael R. Arkfeld

The Sedona Guidelines for Managing Information and Records in the Electronic Age (Sept. 2005 Version) (free on-line)

Electronic Discovery: Law and Practice, Adam I. Cohen

The Practical Guide to Electronic Discovery, Mary Mack and Matt Deniston

For good general background reading I’d recommend John Battelle’s book: The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture. It does not pertain to e-discovery, but it helps in understanding the general “search” culture we are now in.

For more specific background reading, I suggest books on computers and computer networks.  Personally, I like the ones with many large color pictures and simple, yet valid explanations:  How Computers Work (8th ed.) by Ron White; and, How Networks Work (7th ed.) by Derfler & Freed.  Finally, for a pure reference book that is handy to have, try the Computer and Internet Terms Dictionary by Barron’s.

Sanctions for e-Discovery Abuses - Is the Attorney to Blame?

A district court in Ohio decided that sanctions were appropriate due to plaintiff’s “persistent and egregious noncompliance with a series of discovery orders”, but could not decide whether to impose the sanctions against the plaintiff or its attorneys.  Exact Software v. Infocon, 479 F.Supp.2d 702 (N.D. Ohio, Dec. 5, 2006). 

In an unusual order, the plaintiff software company was granted leave to show cause why sanctions should be imposed against its attorneys, and not it.  The question of blame arose when new counsel appeared for plaintiff and filed an affidavit by plaintiff’s CEO swearing that the prior attorney failed to inform the company of the court orders and pending motion for default. Id. Fn. 25.

The Court was ready to sanction the plaintiff by dismissing its case, entering default judgment for the defendant on its counter-claims, and taxing all fees and costs.  But as the court noted, it should not sanction a party “where the fault lies with inattentive, inept, or incompetent counsel” so that the “party does not suffer for the ineptness or incompetence of its counsel.” Since the court only knew that its orders were not followed, and did not know why, it provided plaintiff with an evidentiary hearing to prove that its prior attorneys were to blame, not it. 

The opinion at Fn. 2 notes that the plaintiff has been represented in this dispute by at least four different attorneys. This is usually a red flag that it is the client who is the problem.  Still, the opinion suggests that the third attorney, whose motion to withdraw was still pending, could be partially at fault because most of the discovery failures happened on her watch.

One of the most interesting failings noted in the order had to do with the use of keyword searches of plainitff’s records.  Plaintiff blamed its failure to produce certain relevant documents upon the opposing party’s poor choice of search terms.  Plaintiff argued that the search terms defendant used did not produce a hit on these known documents, and so they did not produce them. The court soundly rejected this saying:

Their attitude and approach were not appropriate. Just as a party asking for production of a paper document does not have to specify the room, cabinet, drawer, and file in which the document is to be found, a party calling for production of electronically created and kept information is not required to plot the search with exactitude. If the party from whom discovery is sought can comprehend with reasonable certainty what is being asked for, it is up to it to access its storage system to retrieve the document. If problems are encountered due to uncertainty about what is being sought, the party conducting the search of its own system and records is to ask for further clarification.

POSTSCRIPT: This order was appealed, and then the case settled on July 31, 2007, before there were any rulings.  So we will never know for sure who is to blame, but I have my suspicions.

Popular Search Terms in 2006

What were people searching for online in 2006?  Google answers this question in its Zeitgeist 2006 year end review.   Google defines the popular German word “Zeitgeist” as:  “Meaning: the general intellectual, moral, and cultural climate of an era.” According to Google the top ten search terms in 2006 were:

1. bebo
2. myspace
3. world cup
4. metacafe
5. radioblog
6. wikipedia
7. video
8. rebelde
9. mininova
10. wiki

Count yourself very tuned in, albeit immature, if you knew them all!   

Google also reports the top search terms in a host of sub-categories, including News, Current Events, Entertainment and Sports.  Google reports the Zeitgeist monthly, as well as annually, to help keep track of what people want.

According to Google’s record of every Google search made in 2006 the most popular “News” searches were:

1. paris hilton
2. orlando bloom
3. cancer
4. podcasting
5. hurricane katrina
6. bankruptcy
7. martina hingis
8. autism
9. 2006 nfl draft
10. celebrity big brother 2006

Hmmm . . . . . . .   kind of makes you wonder about the emotional and intellectual maturity of the online community?

PC World’s Top Technological Blunders in 2006

PC World ran an interesting story this week on “The Top 21 Tech Screwups of 2006″ by Dan Tynan. His pick in the crowded field for the top blunder was the exploding Sony lithium ion batteries:

Biggest Mistakes #1
1. Assault With Batteries. When 62-year old Thomas Forqueran and a buddy were packing up from a Nevada fishing trip last July, he left his Dell Inspiron 1300 notebook in the cab of his 1966 Ford pickup. Soon Forqueran smelled smoke, then saw flames shooting out of the passenger window. Within moments the fire hit three boxes of ammunition stored in the glove box. Forqueran and his buddy ducked for cover as bullets whizzed by and the gas tank exploded Several flaming laptops made headlines in 2006, but it was Forqueran’s story that pushed Dell to recall 4.1 million laptops containing Sony lithium ion batteries. Apple, IBM/Lenovo, Toshiba, and others soon followed, and laptop makers vowed to build a safer lithium ion battery by July 2007.

Moral of the story, don’t store your laptop by anything flammable, much less explosive.

Bankruptcy Court Imposes Sanctions in Adversary Proceeding

A bankruptcy court in Florida recently considered e-discovery abuses and imposed sanctions against the defendant law firm and its attorneys. In re ATLANTIC INTERNATIONAL MORTGAGE COMPANY, Debtor; Steven S. Oscher, Liquidating Trustee For Atlantic International Mortgage Company, Plaintiff, v. The Solomon Tropp Law Group, P.A., et al, defendants.  The sanctions imposed required The Solomon Tropp Law Group, and its attorneys, to pay all of the Debtor’s costs and all fees incurred in connection with discovery in this complicated adversary proceeding in Bankruptcy Court in Tampa, Florida.   The decison begins with words all too common in this type of case:

The matter before this Court presents a deplorable scenario under which the ultimate issues raised by the pleadings are completely overcome by discovery disputes which have gained their own life.

The e-discovery disputes begin when the Plaintiff finds a memo suggesting that many more emails must exist than have been produced: 

This discovery dispute arose after the Trustee discovered a post-petition communication dated December 8, 1999, between Livingston and the Solomon Firm directing that all communications with him should be by email.  . . .   The Trustee has maintained throughout this proceeding that in accordance with these instructions, there ought to be a substantial record of electronic communications and activities between the Solomon Firm and Livingston, far more than what has been produced by the Solomon Firm pursuant to the Trustee’s Request for Production and the Electronic Records Production Order.

There were a number of e-discovery abuses noted in the opinion, but perhaps the most interesting from a “geek perspective” was the one concerning the disputed use of the Forensic Toolkit software by the law firm’s expert, and the contradictory findings by the expert appointed by the court.  Again, in Judge Paskay’s words:

On September 27, 2005, the Solomon Firm filed an Amended Affidavit by the Firm’s technology manager, William Kent (Kent) in an attempt to refute the information contained in the Computer Expert’s report and the Motion for Default Judgment. (Doc. No. 344). Not only is this Affidavit of questionable veracity, but it has been totally refuted by competent evidence before this Court. The Kent affidavit asserted that the document recovery program, Forensic Toolkit, had not been used to search for and recover any documents related to the present adversary proceeding. However, the Computer Expert found evidence on the Solomon Firm’s computers which proved that Forensic Toolkit had, in fact, been used to search for documents relating to Atlantic and Livingston. Responsive documents recovered by the Solomon Firm at that time were not produced to the Trustee.

The Court denied the Plaintiff/Debtor’s demand for entry of a default judgment against the Defendant law firm, but did state that fees and costs would be awarded against both Defendant law firm and its attorneys holding:

Modern discovery was designed to eliminate litigation by ambush and surprise. Cooperation and candor by all parties are crucial to the proper function of the discovery process; obstreperous conduct and deceptive tactics designed to delay and impede have no place in the discovery process. . . . This Court is not satisfied that the Solomon Firm’s conduct rises to the level required to sustain a motion for default judgment at this time. While the remedy of the entry of a default judgment is too drastic an action under the facts presented in the hearing, this Court is convinced that monetary sanctions are appropriate. Under FRBP 7037(b)(2), reasonable expenses, including attorneys’ fees may be awarded against a party, its attorney, or both. Such sanctions, when awarded against a party’s attorneys serve to “remind attorneys that service to their clients must coexist with their responsibilities toward the court, toward the law and toward their brethren at the bar.” Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir.1993). Based on the foregoing, this Court is satisfied that the appropriate sanction is to impose monetary sanctions against the Solomon Firm and its counsel, F. Lorraine Jahn, Esq., and Michael J. McGirney, Esq., by awarding the Trustee his reasonable attorneys’ fees and costs incurred in pursuing all discovery in this adversary proceeding.

Defendants have moved for a rehearing, so this is not the final order and could be set aside.  There has been no ruling yet on the rehearing motion because, as I understand it, Judge Paskay has been ill.  The plaintiffs’ have, however, filed motions to determine the amount of the sanctions award, wherein they seek computer expert costs of around $100,000, and fees of approximately  $600,000. Plaintiffs have not argued as to how the award should be allocated.  I will keep my eye on this interesting case and report later on how it is resolved.

When Do the New Rules Apply?

First, to state the obvious, the new rules  only apply to cases in federal court, although no doubt the new Federal Rules of Civil Procedure and their commentaries will also be frequently argued in state court e-discovery disputes. 

Second, the new FRCP certainly apply to all cases filed in district courts on or after December 1, 2006, the date the new rules went into effect.  As to federal cases filed before December 1, 2006, the Supreme Court said they should apply “insofar as just and practicable”.  See: http://www.supremecourtus.gov/orders/courtorders/frcv06p.pdf 

Thus, under the Supreme Court guidelines, if a case was filed before December 1, 2006, it will be up to the district court to determine on a case by case basis whether application of the new rules will be too burdensome, or result in undue delay.  If a court determines it is impractical or unjust to use the new rules, then the old rules will apply.  This will almost certainly be the case where discovery has already closed or is in the final stages.
 

Model Electronic Discovery Order Under New Rules

A model e-discovery order has already been entered to guide the conduct of a case under the new rules.  Palgut v. City of Colorado Springs, 2006 WL 3483442 (D.Colo., November 29, 2006). Magistrate Watanabe’s order is entitled Electronic Discovery Plan and Order to Preserve Evidence.  It begins with this explanation:  “The purpose of this Order is to expedite discovery and reduce the costs of litigation to the parties and to the Court.”

Next the order contains a basic Definitions section, beginning with a definition of “Relevant Information”.  Next the court defines “Documents”, “data,” “electronic information,” or synonyms thereof, to “mean documents or electronically stored information referred to in Fed.R.Civ.P. 34, as amended by the impending December 2006 amendments to that rule (including information stored in video and photographic devices), and the more detailed definition of same below. See Sec. VIII, infra.” Section VIII contains many more definitions, including the continuation of “Documents”: “These terms also include: All digital or analog electronic files, including “deleted” files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives or floppy disks used by your clients’ computers and their backup media (e.g., other hard drives, backup tapes, floppies, Jaz cartridges, CD-ROMs) or otherwise, whether such files have been reduced to paper printouts or not.”

Also defined in the order are: “Application”, “Backup”, “Deleted Data”, “Electronic device”, “Hard Drive”, “Mirror Image”, “Native format”, “Network”, “Operating system (OS)” and “Software”.

The order, which appears to be largely stipulated, also sets forth Discovery Protocols for the form of electronic information production; objections to producing electronic information; and interrogatories, document requests, and requests for admissions. The order also requires the informal exchange of information between the parties’ experts, requires the parties to make a good faith attempt to enter into a cost sharing agreement, and enters an order preserving evidence as follows: “Neither party may alter, interlineate, destroy, or permit the destruction of any document, as defined herein, in its possession, custody, or control, without further order of court.”   

If the city in fact stipulated to this preservation order, then, in my opinion, it probably made a mistake.  The city probably had much more ESI than the plaintiff, and had very little to gain by stipulating to what amounts to an injunction to obey the law.  If an error is made, and something is accidentally not preserved, then the city already stands in violation of a court order, and sanctions may be easier to obtain.  When one party has a lot more data than another, they are more likely to make such a mistake.  For that reason in most circumstances a large organization will want to avoid any type of preservation order.

It is an interesting and useful order, which for some reason was made nunc pro tunc back to November 21, 2006. For another more recent case along the same lines see: In re Genetically Modified Rice Litigation, 2007 WL 1655757 *4 (E.D. Mo., June 5, 2007).

Top Ranked Tech Law Journals

I just completed writing a long, scholarly type article on e-discovery and the mathematical algorithm known as “hash”.  Hash is a fascinating (well, to me anyway) encryption process that is the key to all electronic document identification and authentication.  I will write more on hash at another time (it is my current favorite e-discovery topic).  But for now I wanted to share what I learned when trying to decide which scholarly law/technology journals to submit my article to. 

Of course I would like to have the article published by the best law journal possible, the most influential and widely read.  So I started by asking one of our librarians if they knew which technology law journals were considered to be the best.  Akerman has long been known for having one of the best private law firm libraries in the country, so I was surprised they did not know.  Aside from a general correlation with the ranking of law schools, they were unaware of any ranking or rating service of law journals. 

So I started on the search myself, beginning with the journal from my Alma Mater, the University of Florida’s Journal of Technology Law & Policy.  There I found a very complete list of Law and Technology type journals from around the world, but no ranking. (It is, by the way, an excellent journal, and I eventually picked it to publish my article: HASH: the New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007). )  I then looked at a few on the list I had already heard of, and quickly landed at the Harvard Journal of Law and Technology.  Unlike the other journals I had seen, the Harvard journal, which calls itself “JOLT”, stated that it was ranked #1 among Science & Technology law reviews by ExpressO, and put a link to the ExpressO website.

Here my search ended successfully with a ranking service of all specialty law journals in various areas of the law, including “Science & Technology”.  Moreover, I found that ExpressO is a service of the Berkeley Electronic Press and appears to be legitimate, although I remain unsure of exactly how these rankings are made.  So, to get to the bottom line, here is their RANKING OF SCIENCE AND TECHNOLOGY LAW JOURNALS:

1. Harvard Journal of Law & Technology
2. Berkeley Technology Law Journal
3. Virginia Journal of Law & Technology
4. Boston University Journal of Science & Technology Law
5. Columbia Science and Technology Law Review
6. Duke Law & Technology Review
7. North Carolina Journal of Law and Technology
8. I/S: Journal of Law & Policy for the Information Society
9. Journal of Law, Technology & Policy
10. University of Illinois Journal of Law, Technology & Policy

Plaintiff’s e-Discovery Skullduggery Leads to Further Punishment by the Court

 The employee Plaintiff, James Plasse, was punished again by the district court for his alteration and destruction of electronic evidence, and ordered to pay the employer defendant $55,472.32.   Plasse v. Tyco Elec. Corp,2006 WL 3445610 (D.Mass. Nov. 8, 2006).

This is a sequel to one of our favorite decisions where the Plaintiff’s case was dismissed with prejudice as a sanction for his inartful attempt to change the dates on documents on his home computer, and other e-discovery abuses. Plasse v. Tyco Elec. Corp.,2006 WL 2623441, (D.Ma. Sept. 7, 2006) (Commentary and full text included in the Case Law section of our private web at www.e-discoveryteam.com).  In Plasse I, a forensic examination of the plaintiff’s home computer exposed his clumsy fraud. At the end of the opinion in Plasse I, the court invited the defendant to move for fees and costs, suggesting that further punishment was in order against Plasse. 

In Plasse II, the court awards one half of the fees incurred, and all of defendant’s e-discovery costs.  The fees were awarded under the court’s inherent equitable power to do so “against the party that has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Only one-half of the fees sought were awarded because the Court found “some degree of duplication and overkill.”  All of the costs were awarded as punishment for the plaintiff who tried to mislead the Court by altering data on his computer. In the words of the judge: “The court will award Defendant its full costs, since retention of experts was particularly necessary to uncover Plaintiff’s skullduggery.”

Survey Shows IT Not Ready For New Rules

A November 2006 survey by Computerworld indicates that most companies are not prepared for the rule change. The popular magazine reports that a survey of 170 IT managers and staffers showed: 32% were not prepared at all; 6% somewhat unprepared;4% halfway prepared; 11% somewhat unprepared; 5% completely prepared; while a whopping 42% said they did not know the status of any preparation efforts. My guess is that most who said they did not know are in fact unprepared. This means the vast majority of IT departments, perhaps as high as 80%, are not ready for e-discovery. The follow-up question seems to confirm that.

The magazine then asked IT if they knew who was in charge of preparing for e-discovery: 35% did not know; 27% said no one; 20% said IT; only 8% said in-house legal counsel; 5% the compliance department; with the last 5% saying other.

That eight (8%) percent figure is surprising. You would think that the legal departments would have a bigger presence. It does not say the size of the companies polled. I would suspect many were small to midrange, with limited in-house legal staffs. Regardless, this survey confirms the suspicions of many commentators that corporate America is still not prepared to respond to electronic discovery, and that disastrous, Coleman v. Morgan Stanley type e-discovery cases are likely to continue for many years to come.

DECEMBER 1st, 2006: The New Rules Go Into Effect Today

The new rules went into effect today, December 1st, 2006, yet everything seems pretty much the same.  Two schools of thought on this: one says its just like the big Y2K scare, much ado about nothing.  The practice of law will go on pretty much as it always has before.  It was all just hype.    

The other, I think more realistic view, is that the new rules are the start of something big, a kind of point of no return.  Of course, nothing special happens today.  This is not a Y2K doomsday scenario.  It is more like a landmark, a time when the process of change begins to accelerate as the legal profession struggles to keep up with the massive changes in society.  

The law must inevitably follow the digitization of society.  There is no turning back.  In today’s world, the smoking gun every litigant searches for in discovery lies in a computer, not a filing cabinet.   We must follow the evidence, just like the truth, wherever it takes us.  That is why e-discovery is here to stay, and why today is an important day. 

In a few years I think that we will look back on the rule change, and see that it had  a significant impact on civil litigation in America.  It helped our dispute resolution process to keep up with the massive explosion of information, and helped our profession to adapt to the age of technology.