More “Must Read” 2008 Cases - Part Two

This is Part Two of a three part series reviewing, in alphabetical order, some thirty 2008 e-discovery cases. These are particularly interesting and noteworthy cases, but ones not previously featured in this blog. Part One covered ten cases A-J. Here in Part Two, seven more cases are written up, using some 4,150 words, but I only get through two more letters in the alphabet, H-I. That is because there are so many good “In Re” type cases, which are usually complex cases consolidated in a single court. These cases frequently involve important e-discovery issues, as you will soon see.

The first case here is the lone “H” case, Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008). Henry involves search protocols and a questionable decision to change the agreed-upon, and court-ordered, procedures without telling the other side, or seeking permission from the judge. The not-so-subtle message of Henry is the need for communication and openness in e-discovery, especially when attempting a complex search of a large volume of ESI. The old ways of extreme adversarial discovery conduct do not work anymore in the new world of complex e-discovery. You may think you are helping your client, but, as this first case shows, you are not. More often than not you just end up making a bad situation worse. 

Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008).

This case was brought by 422 plaintiffs who worked for Quicken Loans as “loan consultants.” They sued under the Fair Labor Standards Act for time and a half overtime pay for all work over 40 hours per week. Plaintiffs’ requested production of emails which they and 32 managers had written during a three month period in 2004. Apparently these emails were only available on backup tapes, and so Defendant objected.

Plaintiffs filed a motion to compel production and establish a protocol for production and clawback type privilege review. The motion was granted and the court compelled production and “a protocol was ordered that was intended to balance the concerns and needs of both sides at what was hoped to be manageable costs.” Id. at *1. The protocol called for Plaintiffs’ computer expert to retrieve email from the tapes under Defendant’s direction, but using search and screening terms agreed to by the parties. Plaintiff’s counsel agreed to pay for the expert’s expense, but “expressed a desire to limit the costs to no more than what was needed and not to be giving defense counsel a “carte blanche” to run up the costs of the screening procedure at Plaintiffs’ expense.” Id. at *2.

Mid-way through the screening process defense counsel directed the computer expert to start using different keywords to screen emails and attachments. This is difficult to understand. If defense counsel found that the search terms the parties had agreed to were not working well, which is certainly possible, if not likely, and felt it was necessary to change the terms, then why not speak with Plaintiffs’ counsel about it, or the court? (Later in the opinion the court stated that it would have agreed with some of the defense changes, but not all, if it had been asked in advance.) This was, after all, the Plaintiff’s expert, and so, defense counsel could not possibly have thought this “departure” from the agreement would pass undetected. So, why did defense counsel make a unilateral decision to change the search terms? By all appearances, it looks like an intentional violation of the parties agreement and court order? Monday morning quarterbacking is always easy, but still, this one looks like a no-brainer. So why did this happen?

Apparently defense counsel did think that this “little mid-course correction” could go by undetected. Yes, it was originally Plaintiffs’ expert, but the court order made clear that the expert would work under the “direction and control” of Defense counsel and would maintain confidentiality. Further, to underscore this point, and develop and extend the order a bit, Defense counsel told the expert that he “would be acting under the ‘direction and control’ of defense counsel and was not to have any contact with Plaintiffs’ counsel regarding his work.” Id. Apparently defense counsel figured they had set it up so that they could make these changes in search protocols without being detected, and so limit the production to Plaintiffs. Alternatively, they figured that if they were caught, there would not be significant adverse consequences. Wrong on both counts.

Here is how they were found out. The expert presented his bill to Plaintiffs’ counsel for payment as the court order provided. It is interesting to note that the bill was originally for $91,191.35, but was subsequently reduced to $79,965.01 due to “inadvertent double billing for certain work.” Id. at *3. (Seems odd - over twelve thousand dollars in inadvertent double billing?)  As soon as Plaintiffs’ counsel got the hefty bill, he sent a copy to Defense counsel, and advised them of his intent to depose the expert “regarding his bill and the protocol he followed.” Id. It seems to me that this should have been expected. But apparently not.

On the day of the noticed deposition, Defense counsel filed a motion for protective order to try to prevent the deposition. This delayed the deposition by several weeks, but after the motion was denied, the deposition eventually went forward. Of course, that is when the truth came out. The expert told all about how Defendant’s attorneys forced him to use new terms and procedures. Not surprisingly, the result of the new terms and procedures was an under-inclusive production of emails. The expert guessed at his deposition that “tens of thousands” of emails were not produced as a result of the change.

Again, as would be expected, Plaintiffs’ counsel responded with motions to the court. In my view, the motions were pretty mild considering the events described in the opinion. I would have expected a motion for sanctions. Instead, Plaintiffs counsel sought only to have the expert costs shifted, asking for the Defendant to pay most, but not all, of the expert’s bill, not Plaintiffs. Here is the court’s explanation:

*5 While there is no suggestion that defense counsel was acting unethically in serving his client’s interest, defense counsel’s actions exceeded the scope of the “direction and control” powers this Court vested in him in his unilateral and unauthorized modification of the “specific parameters” of the July 10, 2007, letter.

If there was a belief before or after the first screening run that there was some ambiguity in the meaning of screening for the names of identified company legal personnel, where those names were listed as a usual combined first and last name, defense counsel should have aired that with Plaintiffs’ counsel. If agreement could not be reached, Plaintiffs’ or Defendants’ counsel could have raised the matter with the Court. Had the issue of screening separately for first names of the 14 attorneys been brought to the Court’s attention, the initial interpretation and recommendation of Mr. Lanterman [the expert] of using both names together would have been adopted, or if separation was to occur, the screening would be done using the last name only of the attorneys. Instead of this, defense counsel unilaterally and secretly resolved any ambiguity, if such exists, in his client’s favor and against the advise of the forensic computer screening expert.FN5 It appears that as a result of this all e-mails screened subsequent to the initial screening were corrupted as being under-inclusive. Thus, it is determined that it is not a reasonable expense to impose the costs of subsequent screening runs on Plaintiffs where the corruption was caused by the acts and omissions of defense counsel, and could have been avoided.

Plaintiffs’ motion was granted and Defendant was ordered to pay the expert fees. Plaintiffs’ have another motion pending to have the court find a waiver of privilege (which may explain the seemingly mild response here to the hidden change). This opinion did not explain the waiver issues, but did state that depending on how it rules on this privilege motion, Defendant may be required to produce all of the emails it screened from the unilateral revision, and then some. The decision not to call Plaintiffs’ counsel, or the court, and instead unilaterally change the search procedure, could indeed have very harsh consequences.

In Re Flash Memory Antitrust Litigation, 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008).

In this case, the court entered a preservation order reminding parties of their duty to preserve all potentially relevant evidence. It appears if as this was done sua sponte as there is no reference to a motion or stipulation. The parties were directed to take reasonable steps to ensure that potentially relevant records are preserved and to notify all parties and non-parties of their duty to preserve.

This is a one page order that simply reminds the parties to do what the law already requires. No explanation was provided for why the court felt it necessary to help the parties with their memory in this way, but I cannot help but notice the irony in view of the title of this case. The Flash Memory opinion concludes with the following:

Until the parties reach agreements on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation. In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure.

In Re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007).

Technically this may not be a 2008 case, but it is real close. It is a state appeals court opinion involving real estate litigation. The appellate court upheld a trial court order requiring a forensic examination of Defendants’ computers so that outcome determinative metadata could be discovered.

The main issue in the underlying case is whether Defendants had altered a partial assignment of a real estate contract after the parties finalized the agreement. The trial court ordered a computer expert to create a mirror image of the computer hard drives in Defendants’ office in order to locate all drafts of that assignment, including deleted files. Plaintiffs wanted the documents in their native format with the metadata intact so that they could determine when the drafts were modified. The appeals court found that under these circumstances, the order was not overly broad and was properly crafted to protect disclosure of privileged and confidential information. 

Here is the court’s explanation of why acquisition of the metadata in this case was critical:

A & W seeks the metadata from the Honzas’ hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

There is no explanation as to why the Defendants did not simply produce the native files with all metadata. Apparently, the defendants simply refused to do so thus triggering the rationale for the forensic examination. This fact also makes it easy to distinguish this case, because, in most circumstances, the producing party would simply produce the metadata, at least as a fall back position. In a case like this, where only two documents were involved, and the metadata could be outcome determinative, the metadata was obviously relevant and should have been produced voluntarily.

The Texas appeals court opinion is noteworthy for its good review of some of the many state and federal cases addressing the issue of forced forensic examination of a producing party’s computers. This was an issue of first impression in Texas, but has been considered by many other state courts, and dozens of district courts. The opinion also contains a detailed list of the procedures to be followed during the exam to protect the rights of the examined party. It is a good decision to know about, especially in state court cases.

In Re Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. Aug. 21, 2007).

Ok, this is not a 2008 case either, but it is an important case that has a lot to say about search and the need to cooperate in e-discovery. I should have written about Seroquel previously; so, better late than never. This is a well-written decision by Orlando Magistrate Judge David Baker. Judge Baker is not yet one of the “Judicial Rock Stars” of e-discovery, but he has long experience with computers and a good understanding of e-discovery, and could easily join the “e-disco” circuit if he wanted to.

This is a multi-district products liability action. It was filed by 6,500 Plaintiffs who took the drug Seroquel, an anti-psychotic medication that is purported to cause diabetes and other illnesses. I can only imagine the kind of client relations problems the Plaintiffs’ lawyers must have. This opinion addresses Plaintiffs’ motion for sanctions against the Defendant, the drug’s manufacturer, AstraZeneca, due to its failure to timely or properly comply with multiple discovery requests. After a raucous hearing, Judge Baker granted the motion and imposed the sanctions, even though there was no showing of willfulness or bad faith.

There was, however, proof of massive discovery negligence bordering on bad faith that caused unnecessary expenses and delays. Judge Baker characterized Defendant’s response to discovery as “purposeful sluggishness.” Defendant eventually produced 25 million pages of ESI, but of this, over 10 million pages were inaccessible, unsearchable, and unusable. The was at the heart of the sanctions motion. The flat TIFF images produced were not searchable because they were not accompanied with any metadata or other load file. Further, the production included multiple giant “TIFF” images, some over 20,000 pages long, with no page breaks. When plaintiff’s counsel suggested the inclusion of page breaks, defense counsel called it “ingenious,” a fact which Judge Baker pointedly noted in the sanctions opinion.

Judge Baker criticized both sides for their lack of professionalism and over-argumentative approach to electronic discovery. But, the Court found primary responsibility for the breakdown in communication and cooperation on the Defendant whose records were at issue. The following quotes from the opinion are of particular importance, and are starting to appear in other decisions nationwide, including the latest hot opinion on search issues by Judge Grimm, Victor Stanley.

While keyword searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process. Rather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, AZ undertook the task in secret.

Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness. If AZ took such steps, it has not identified or validated them.

One day all practitioners will understand and agree that using sampling and other quality assurance techniques in ESI search is just plain common sense. In the meantime, judges like David Baker, Paul Grimm, and many others stand ready to sanction clueless lawyers whose blundering, or adversarial based “purposeful sluggishness,” needlessly drives up the cost of litigation.

In Re Intel Corp. Microprocessor Antitrust Litigation, 2008 WL 2310288 (D. Del. June 4, 2008).

In this antitrust litigation, supposedly the largest in the country, the court found waiver by the defendant Intel of attorney-client privilege and work product protection. By the time this class action is concluded, all parties expect it will involve the largest production of ESI in history:

AMD, the Class Plaintiffs and Intel recognize that this litigation could be the “largest electronic production in history” resulting in Intel’s production of “somewhere in the neighborhood of a pile 137 miles high.” (citations omitted)

Intel discovered some lapses in its retention of potentially relevant documents and disclosed these lapses to the court and the many opposing parties, most notably AMD. This then forced Intel to start to look for these deleted emails on its backup tapes and other locations. It then discovered that some of the backup tapes had also not been preserved. This triggered a full investigation, including interviews by new outside counsel retained for that purpose, Weil Gotshal & Manges, LLC (”Weil”). In what any law firm would consider a dream assignment, Weil was retained to interview each of Intel’s 1,023 identified custodians “for the purpose of determining their e-mail preservation habits and their level of compliance with Intel’s litigation hold notices/instructions.” As part of these remedial efforts, Weil attorneys “spent many hours preparing roughly 400 pages of custodian-specific retention reports which drew upon thousands of pages of attorney notes, as well as other information.”

Plaintiffs sought the production of the Weil attorney notes underlying these retention reports in order to determine whether there was any deliberate destruction of relevant data. Intel opposed production, asserting attorney-client communication privilege and attorney work product privilege to all of the notes. A Special Master was appointed to determine if Intel had waived these privileges. The Special Master found waiver of attorney-client privilege because Intel had asserted to the Plaintiff, and the court, that the deleted information was due to human error and not intentional destruction. Intel waived work product protection when it agreed to produce detailed descriptions of the preservation issues of each custodian. This was waiver of “fact work product” only, and did not include “core work product,” a/k/a “opinion work product” which the decision notes is accorded near absolute protection from discovery. Id. at pg. *15. The court fully adopted the Report and Recommendation of the Special Master and overruled all of Intel’s objections.

The Court felt that waiver was required; otherwise, Intel would be “in the position of being able to use its sword to assert facts while at the same time shield AMD, the Class Plaintiffs and the Court from the accuracy of Intel’s assertion.” This would in effect force AMD and Class Plaintiff’s to either take Intel’s word for everything, or start all over and depose the Intel witnesses themselves. That would have defeated the whole purpose of the original discovery agreement under which the Weil investigation was commenced. As the Court explained:

In the context of the discovery phase of Intel’s preservation issues, Intel, by and through its attorneys, agreed to this form of discovery. Intel agreed to produce, “detailed written description[s] of the preservation issues affecting [every] Intel Custodian, including the nature, scope and duration of any preservation issue(s).” Intel could have left AMD and the Class Plaintiffs to their own devices, forcing them down the path of protracted world-wide preservation depositions. It did not. Rather it trumpeted its willingness to have AMD, the Class Plaintiffs and the Court informed as to fact work-product gathered and provided “a detailed written description of the information provided by each custodian [to Weil] during the interviews.”

CONCLUSION:

*17 The Special Master concludes, therefore, that Intel cannot now mask its agreed to discovery of custodian information by asserting the work-product privilege with respect to fact work-product which, in the Special Master’s view, lies at the heart of Intel’s position on its preservation issues.

So the troubles for Intel in this antitrust case continue. Not only will its mistakes in preservation cost Intel a small fortune to try to correct, but now it will also cost Intel some of its attorney-client secrecy protection. This could in turn lead to more sanction motions by AMD and other class plaintiffs, depending in no small part upon the findings and conclusions of Intel’s own lawyers. 

In Re Subponea Duces Tecum to AOL, 2008 WL 1956266 (April 18, 2008).

In this qui tam action against State Farm Insurance, the court considered a motion objecting to the magistrate judge’s order quashing State Farm’s subpoena of AOL. The filers of the qui tam action (called “relators”) argued that the subpoena to AOL violated the Electronic Communications Privacy Act. State Farm subpoenaed AOL for certain information relating to the email accounts of listed State Farm adjusters. The subpoena also requested all emails and electronic documents sent and received during a six-week period from one of the adjuster’s email accounts. The adjusters were not parties to the underlying litigation.

The court upheld the magistrate judge’s order for two reasons. First, the subpoena was over-broad due to the fact that the request for all emails and electronic documents during the six-week period was not limited to documents relevant to the subject matter of the litigation and it imposed an undue burden on the third party insurance adjusters. The court reasoned that the emails and electronic documents produced from the six-week period would likely contain privileged and personal information that was unrelated to the litigation. Second, the court held that:

[T]he plain language of the Privacy Act prohibits AOL from producing the Rigsbys’ e-mails, and the issuance of a civil discovery subpoena is not an exception to the provisions of the Privacy Act that would allow an internet service provider to disclose the communications at issue here.

This is an important ruling construing the Electronic Communications Privacy Act (”Privacy Act”). 18 U.S.C. §§ 2701-03 (2000). It applies only to civil discovery subpoenas of Internet service providers, and does not apply to civil trial subpoenas, nor to criminal subpoenas. Here is a segment of the Court’s reasoning behind this important ruling:

Protecting privacy interests in personal information stored in computerized systems, while also protecting the Government’s legitimate law enforcement needs, the Privacy Act creates a zone of privacy to protect internet subscribers from having their personal information wrongfully used and publicly disclosed by “unauthorized private parties,” S.REP. NO. 99-541, at 3 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3557.

*4 Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the Privacy Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas.

[T]he Court holds that “unauthorized private parties” and governmental entities are prohibited from using Rule 45 civil discovery subpoenas to circumvent the Privacy Act’s protections.

This means that if you want to discover email you need to subpoena the subscriber, the person whose email account it is, not the provider. If you receive a court order compelling the individual subscriber to produce the email, then, and only then will the Internet provider cooperate.

In Re World Trade Center Disaster Site Litigation, 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008).

This litigation involves approximately 10,000 cases relating to the respiratory injuries of workers exposed to toxic chemicals in the clean up and rescue efforts after the terrorist attacks of September 11, 2001. The court recognized the massive volume of e-discovery required to fairly resolve the many claims in this important case. For that reason, this opinion accepts and approves the Special Masters recommendation that Technology Concepts & Design, Inc. be hired to build, maintain, and operate a computer database to store “Core Discovery.”

The recommendation was made by the multiple Special Masters previously appointed in these consolidated cases. (By the way, the opinion notes that the Special Masters’ bills average $20,000 per month.) The court accepted the recommendation because, as the court put it, “it is imperative that a means be developed to process and organize the information on a consistent, reliable, and accessible basis.”

The Plaintiffs had opposed the hiring of the expert, and construction of the database, largely on the basis of the additional cost involved. Plaintiffs were keenly concerned with costs because all of the expenses are paid out of a capped recovery fund. The court rejected these arguments, claiming that a source of reliable information was indispensable to the efficient and inexpensive resolution of these 10,000 plus cases. The Court also explained its authority to appoint Special masters and experts to assist courts in complex discovery issues:

The court has ample power to appoint Special Masters, and to support their activities in manners that will create efficiencies and economies. Fed.R.Civ.P. 53; In re Peterson, 253 U.S. 300, 312-13 (1920) (”Courts have … inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties” including Special Masters); Manual for Complex Litigation §11.52 (4th ed. 2004).

The use of Special Masters in this case is a good example of an emerging trend in e-discovery. Like most people in the field, I predict a significant increase in the use of Special Masters for e-discovery specific issues in the coming years. These issues are frequently too complex and time consuming for district court judges or magistrates to deal with on their own. For consistency, predictability, and quality of ruling, not to mention speed, more and more parties to complex litigation will voluntarily agree to use a special master with special skills and experience to resolve their e-discovery disputes. Even if they do not all agree, the judges may well force it upon them. As this opinion shows, they have ample legal authority to do that, especially in an extraordinary case like this.

 

More “Must Read” 2008 Cases - Part One in a Three Part Series

This is the first of a three-part blog, and a follow-up to an earlier essay, Online Reference and Thirty One More e-Discovery Cases. In this and the next two blogs, I will add thirty new case summaries and analysis in alphabetical order. This first blog covers the first ten cases, A-G, from the first half of 2008. It is already pretty long at 4,698 words, and one Monty Python video on spam, which is why I am breaking this up into three blogs of ten cases each. These are all cases that I consider “must read” e-discovery cases for 2008. Of course, if you want to “have a life” outside of e-discovery, you might just settle for reading these summaries, and then come back and read the full case later, if and when you need to.

These 30 new reviews are in addition to the twelve lengthy articles on 2008 cases that I have already posted:

1. Qualcomm v. Broadcom.
2. Johnson v. Wells Fargo Home Mortgage, Inc.
3. R & R Sails, Inc., d/b/a Hobie Cat Co. v. Insurance Company of the State of Pennsylvania.
4. Victor Stanley, Inc. v. Creative Pipe, Inc.
5. Texas v. City of Frisco.
6. Petcou v. C.H. Robinson Worldwide, Inc.
7. Bro-Tech Corp. v. Thermax, Inc.
8. Victory Intern. (USA) Inc. v. Perry Ellis Intern., Inc.
9. ICU Medical, Inc. v. RyMed Technologies, Inc.
10. Diabetes Centers of America, Inc. v. Healthpia America, Inc.
11. United States v. O’Keefe.
12. D’Onofrio v. SFX Sports Group, Inc.

The above twelve cases are, in my view, the most important decisions so far in 2008, but the 30 others I will review today, and over the next two weeks, are no slouches either. The truth is, there are tons of good e-discovery cases this year, including many more that did not quite make the cut here for one reason or another.

These new cases will help make the e-Discovery Team blog more useful as an online reference tool for students, fans, and practitioners of e-discovery. In the future, just use the Search button on the right to help you find or remember the e-discovery cases you need. In the meantime, reading these short reviews should help keep you up to date. As usual, unlike the excellent K&L Gates Blog, I interject my own opinions and analysis into most of these reviews. Again, these are my views, not that of my firm or clients. I do this with the hope that some analysis may help in your own processing, or at least keep the study of the law a tad more interesting, and maybe even sometimes amusing. After all, learning should be fun, especially for cutting edge stuff like this.

Special thanks to Catherine Jackson, an Editor of Florida Law Review, and Summer Associate at Akerman, for her fine help on this project.

Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008). In a trademark infringement case, Defendant filed a motion to compel Plaintiff to produce a document titled EZTouch File Structure in native format with all metadata. Plaintiff argued that it had already produced the document electronically in PDF format and in paper format. Additionally, Plaintiff provided a “Document Modification History” representing a chronological list of all changes made since the document was created. The court denied Defendant’s request because Defendant had neither specifically asked for native format in its original document requests nor mentioned native format in any of its earlier motions. The court reasoned that “[Defendant] was the master of its production requests; it must be satisfied with what it asked for.”

The authority the opinion cites at page *560 to support this holding includes three cases, D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 48 (D.D.C.2008); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 248 F.R.D. 169, 170-72, 2006 WL 3091331, at *1-2 (D.Del.2006); Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.2006), and then my book:

See also Ralph C. Losey, E-Discovery, Current Trends and Cases 158-59 (2007) (summarizing recent cases as amounting to a “lesson … that in order to obtain metadata you may need, you should specifically ask for it to begin with”).

It would have been a must read case anyway, honest.

Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008). Plaintiff, a state employee, brought an action against his employer for failing to promote him based on the fact that he had exercised his constitutional rights. Plaintiff filed a motion to compel the production of emails. Defendants produced some responsive emails, but Plaintiff renewed the motion to compel based on inadequate production. After oral argument on the motion, the court ordered Defendants to submit an affidavit delineating the steps they took to locate the emails.

The Defendants filed an affidavit, but it did not describe the steps taken to find the emails as the court had requested. Instead, the affidavit outlined the necessary steps to restore deleted data from backup sources. Plaintiff argued that the emails should be produced even if Defendants had to restore deleted data.

The court examined the elements of Rule 26(b)(2)(B) for production of inaccessible ESI, such as deleted emails, and then made the interesting holding that the rule should not apply unless and until you first try and obtain the ESI from all accessible sources. In this case, that would include PST email archive folders that employees may have made on their personal computers. The existence of such files is unknown, which is one reason the affidavit on search was ordered to begin with. If the missing emails were located in these easy to access PST files, there would be no need to consider searching deleted space and thus no need to follow the analysis of Rule 26(b)(2)(B). In the words of the court explaining the rule:

Under this framework, a court does not reach the two-fold question of whether inaccessible sources of electronically stored information should be searched and, if so, which party should bear the associated costs unless it is first satisfied that the request seeks relevant information that is not available from accessible sources. . . . This is because relevant considerations in determining whether to order a search of inaccessible sources include “the quantity of information available from other and more easily accessed sources” and “the likelihood of finding relevant information that seems likely to have existed but is no longer available on more easily accessed sources.” Id. See also Zubulake v. UBS Warburg LLC, 217 F.R.D. at 323 (one of the two most important considerations is “the availability of such information from other sources”).

Since the defendant did not provide the court with the affidavit it requested to allow the court to determine whether accessible sources of the email might exist, such as the mentioned PST files, the court held that it still did not have enough information to determine whether it should force the government defendants to search through their deleted files or not. The court was obviously persuaded that such an effort would be expensive and time consuming, and seemed completely forgiving of the fact that the state defendants had previously ignored her prior request for information by affidavit. The court denied plaintiff’s motion to compel, but without prejudice. The defendants were ordered to submit to depositions by the plaintiff as to their purported efforts to locate email. After such discovery, which the court assumes will provide information on the availability, or not, or accessible email, the plaintiff can return to the court for appropriate relief

City of Seattle v. Prof’l Basketball Club, LLC , 2008 WL 539809 (W.D. Wash. Feb. 25, 2008). In a case involving a dispute over a lease, plaintiff City of Seattle requested defendant Professional Basketball Club (the Seattle “Sonics”) to search and produce responsive emails of six of its eight owners. The Sonics had already produced about 150,000 emails from two of its owners, Clay Bennett, and Aubrey McClendon. (Who knew professional basketball management types wrote so many emails!) The Sonics objected to the additional requests because such a search would “increase the universe exponentially” and would generally produce irrelevant documents. Still, I have got to believe that the Sonics email is a lot more interesting to read, and certainly more colorful, than the email in your typical landlord/tenant case. That is especially true in this case where these new team owners fought a huge public battle, of which this case is a part, to move the team from Seattle to Oklahoma City.

The City apparently really wanted to see the email of the rest of the Sonics owners too, so it moved to compel production. The court granted the motion because the Sonics had control over the owners’ emails under Federal Rule of Civil Procedure 34(a), the emails were likely relevant to the claims, and there were no specific objections as required under Federal Rule of Civil Procedure 26(b)(2)(B). The court ordered the production of the emails because the Sonics had not adequately explained why the production was unduly burdensome. In the words of the court:

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” Super Film, Inc. v. UCB Films, Inc., 219 F.R.D. 649, 651 (D.Kan.2004) (citation omitted). A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” Boeing Co. v. Agric. Ins. Co., 2007 U.S. Dist. LEXIS 90957, *8 (W.D. Wash. Dec. 11, 2007). A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection. Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (D.C.Pa.1980).

Here, PBC has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” (Dkt. No. 14, Ex. C). PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.”(Dkt. No. 14 at 7.) But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b) (2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that PBC previously used to search Messrs. Bennett and McClendon’s emails and the Court assumes those terms may be used again to make further searches efficient.

The lesson of this case is that you cannot rely upon general objections buttressed by big numbers alone to persuade a court to protect you from burdensome discovery. You have to spell it out and provide details as to why it is so burdensome. Otherwise, even if you are the Sonics in your home court in Seattle, you may not be heard. And if you are new owners trying to take the team away, it might not matter anyway, but you should at least try

Clearone Communications v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008). Plaintiff filed a motion for sanctions in this case involving claims of misappropriation of trade secrets, breach of contract, and conversion. Plaintiff argued that sanctions were warranted because of Defendant’s misrepresentations concerning the late source code production and Defendant’s failure to produce “smoking gun” email, which was produced by another party to the litigation. The other party was the recipient of the “smoking gun” email. Defendant argued that its computer system did not retain copies of any sent emails.

The court allowed an adverse inference instruction and monetary sanctions based on the belated production of source code and the misrepresentations about the existence of other versions of the source code. The court did not grant sanctions based on the missing “smoking gun” email because the court reasoned that the automatic deletion of the email was not done in bad faith. Instead it was their usual policy, albeit an uncommon one. The court did, however, question the wisdom of a business not saving any of its sent email, but that was beside the point for sanction analysis. Here is the Court’ ruling:

For any business this is a significant irregularity; almost unimaginable for a technology company; and even more unlikely for a person of Bowers’ importance in such a company. Nonetheless, it does not appear that the September 5, 2005, email was withheld by WideBand Defendants-they did not have any copies of emails sent by Bowers.

WideBand Solutions, Inc., did not maintain an email storage system that would retain a copy of the September 5, 2005 email. No evidence suggests that this was done in bad faith, but is rather the effect of design of the email system WideBand employed. However questionable the design may be, the effect is that the routine operation of the WideBand computer system did not capture the email. No sanction is needed on this point, as ClearOne is free to establish at trial that no one has complete access to or knows the entire contents of Bowers’ sent email. Each party will be free at trial to argue the implications of that fact.

The court did not mention Rule 37(e), but this case is a good example of where the rule would apply. Here is the wording of the Rule:

Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

That is exactly the situation the court describes in this case and so the refusal to impose sanctions here complies with the new rule.

Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008). In this employment discrimination action, Defendants sought to obtain a forensic examination of Plaintiff’s home computer. Defendants stated that the search would focus on information regarding Plaintiff’s employment with Defendants, the employment termination, Plaintiff’s claims, and possible damages. They offered to pay for the whole thing. Surprisingly, Plaintiff did not object to the forensic examination, but she wanted it to be a more “limited, focused” inspection. Plaintiff also opposed the request because she claimed Defendants did not set forth a protocol or methodology that would protect her against violations of privilege, privacy, and confidentiality interests.

The court did not really address Plaintiff’s scope concerns, but instead generally stated that the burden on Plaintiff was minimal, and noted that Defendants had agreed to pay for the imaging. The court cited Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999), with approval as establishing a good protocol to protect confidentiality. The court then followed Playboy and set forth its own detailed procedures to protect Plaintiff’s privacy rights.

The case is interesting for the detailed protocols ordered. It is also unusual in that the inspection per se was unopposed. I expect many will gloss over this key fact, and try to use Coburn to argue for a right to inspect another’s computers, so long as privacy is protected, and the inspection is paid for. That is contrary to the law, where good cause or other unusual circumstances must be shown, such as discovery abuses, or evidence of missing ESI.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008). This case alleges breach of duty of loyalty and confidentiality based upon an employee’s leaving to go work for a competitor, and allegedly disclosing confidential information to the competitor. Defendant Ramin Younessi was a “high level executive” of plaintiff, Daimler Truck, before going to work for a competitor truck manufacturer. Daimler served a subpoena upon a truck dealer, Cascadia International LLC (”Cascadia”), who was not a party to this litigation. The subpoena requested production of Cascadia’s computers so that Daimler’s experts could search them for certain communications involving the alleged confidential information. Cascadia of course moved to quash the subpoena and for a protective order because the request was unduly burdensome and required disclosure of its trade secrets. No doubt you have already correctly deduced that Cascadia is not a Mercedes truck dealer.

The court did not entirely quash the subpoena because the requested communications were highly relevant. However, the court did not allow Daimler to inspect the computer hard drives because of the risk of disclosing trade secrets. The court ordered Cascadia to search its own computer systems and produce any relevant communications. In response to the objection that the search was unduly burdensome because of the many locations and computers involved, the court directed Cascadia to identify all sources that it did not search, and all potentially relevant documents that it did not produce, in order to evaluate the costs of providing the documents and likelihood of finding relevant documents. The court also limited the production to documents found on certain hard drives and other electronic devices.

Although the Court here reached the right result, the opinion is remarkable for it’s misunderstanding of the rules and the nature of ESI. Read this language of the decision and see if you can tell what is wrong.

The Federal Rules provide for discovery of electronically stored information either in its original state, i.e. actual production and copying of hard drives, or in a reasonably usable form, i.e. print outs. Fed.R.Civ.P. 34(a)(1)(A). . . . That is, the Rule allows for a subpoena of an entire hard drive for the limited purpose of finding a few documents which may be stored therein. See Fed.R.Civ.P. 34(a)(1)(A) (requesting party may obtain information stored in any medium); Fed.R.Civ.P. 34(b)(1)(C) (requesting party “may specify the form or forms in which electronically stored information is to be produced”). This would be analogous to allowing the search of a party’s entire collection of file drawers for the purpose of finding a single class of documents.

That is not what the rules mean at all. The rules allow for the request and production of relevant electronically stored information. ESI is not equivalent to hard drives. The original state of ESI is not hard drives. It is digital information. ESI is sometimes stored on hard drives. It lives there sometimes, it is it’s “house” so to speak. But it is not the same thing as the house itslef, anymore that I am. If you want to see the original of me (dubious desire) you do not subpoena my whole house and then go in there and look around for me. You subpoena me, and out I come. It is the same way for ESI. The original state of the ESI is not the same thing as the “hard drives” or other media in which it lives.

The ESI they were searching for in this case was computer files, most likely email. These files that can be stored on any device. When the original ESI is copied from one media to another, if it is done right, there is no alteration at all. It is still the same original ESI, it is just located on another medium. In that regard, ESI is just like a person. It is still the same person when he or she moves out of the house and into a car. It is also the same original ESI regardless of whether it is found on a hard drive, DVD, thumb drive, iPhone, or whatever.

It is obvious from the language that this fundamental nature of ESI has been misunderstood, and this misunderstanding then leads to needless machinations and worries about the rules. They are better written than that, and the revisions of December 1, 2006, do not, analogously speaking, turn common sense on its head and now allow a party to search another party, or worse, a third party’s “entire collection of file drawers for the purpose of finding a single class of documents.” People search their own drawers, thank you, just like they always have.

Ed Schmidt Pontiac-GMC Truck Inc. v. DaimlerChrysler Motors Co., LLC, 538 F. Supp. 2d 1032 (N.D. Ohio 2008). This is a case by an automobile dealer against its manufacturer, Daimler-Chrysler, alleging breach of a settlement agreement. The opinion addresses the dealer’s motion for leave to amend the complaint to add a new complaint under state law (Ohio) for spoliation. Plaintiff alleges that Daimler-Chrysler lost evidence by not instigating a proper litigation hold after the complaint was filed, and by intentionally destroying evidence by replacing employee computer hard drives only days before Plaintiff made forensic images of them. The court granted Plaintiff’s motion holding that Plaintiff presented sufficient evidence to allow the claim to be pled.

One of the arguments Daimler-Chrysler employed to try and defeat this motion was that arguments on this spoliation claim to the jury would be more prejudicial than an adverse inference instruction. The Court disagreed, and noted (correctly, I think) that such an instruction regarding destruction of evidence would also be extremely detrimental to the defense. Note that this maneuver, to add a new claim for spoliation, instead of just seeking sanctions for spoliation in the underlying claim, is not available in many states, such as Florida, that do not allow a separate tort for spoliation in these circumstances.

Ferron v. Search Cactus, LLC, 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008). Plaintiff, John W. Ferron, is an attorney who brought an action for himself under the Ohio Consumer Sales Practices Act for unlawful, deceptive spam. Ferron claimed that the emails he received from Search Cactus were misleading and deceptive, in that they offered “free products” without adequately disclosing the conditions attached to claiming those purported “prizes.” The unsolicited emails Ferron received were the main evidentiary support for his claim.

Search Cactus requested an inspection of Ferron’s computer systems to determine whether the emails and website visits were a legitimate consumer transaction under the statute. They in effect argued a kind of entrapment, that Ferron induced poor Search Cactus into spamming him, and then sued them for it as a consumer violation. Apparently Ferron admitted to filing many such suits for himself, and for his clients; to which I say, what’s wrong with that? Many people dislike spam and everybody needs a hobby.

Search Cactus wanted to inspect Ferron’s computers to seek information it said would allow it to determine “whether Plaintiff’s opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation.” Search Cactus was looking for the Internet browsing history shown by the computers, as if this would somehow prove their point. The opinion does not explain this, or many other technical aspects.

This case is again unusual in that Ferron, an attorney, does not oppose the inspection, or at least, this battle has been previously fought and lost for reasons not explained in this opinion. Instead, Ferron seeks only to limit the forensic inspection to one small segment of his computers. He argues that the Internet browsing history is stored in only one directory (typically true), but for some reason, again not explained, does not simply produce this information. Search Cactus disagrees that the history is only in one location, and instead argues that complete images of the entire drives are necessary to find the browsing history. Apparently, Search Cactus suspected Ferron of hiding the history in other areas of the drives and of deleting it, or at least trying to.

The court allowed a full forensic examination, but provides only vague justifications, holding that the inspection of the computers was necessary because: (1) there was evidence that Ferron had failed to preserve relevant evidence (the opinion does not explain what was supposedly destroyed); (2) Ferron had not produced the relevant information (again, that is a mystery - finding and producing the history should be easy, and it is hard to understand why this was not done by Ferron long ago); and (3) Ferron’s computer system was the only place where the evidence requested was contained (well yes, but again, it could easily be copied and live on a production CD as well). The court recognized Ferron’s concerns regarding confidential and privileged information. For that reason, it issued a Playboy type protocol to protect Ferron’s rights during the computer inspections. No word on what protection he was offered against tricky spam.

Flagg v. City of Detroit, 2008 WL 787061 (E.D. Mich. Mar. 20, 2008). Detroit seems to be having more than its share of city employee text message problems. The sexual text messages and cover-up of the infamous Mayor of Detroit are well known. But the Flagg case, again involving text messages by city employees in Detroit, is not. Flagg concerns a more serious subject than a politician’s sex life, and the court established a detailed protocol for reviewing text messages between a large number of city officials.

The Plaintiff in Flagg is the minor son of a murder victim. The murder remains unsolved. Plaintiff alleges that the employees of the city did an incomplete investigation of the murder, and even intentionally ignored and concealed significant evidence. Plaintiff alleged that this negligence and willful misconduct resulted in Plaintiff not being able to bring a wrongful death lawsuit against the murderer.

In a previous order, the court denied Defendant’s motion to quash a subpoena given to SkyTel to produce text messages between city officials. The court found that the text messages might contain discoverable information, thus Plaintiff was allowed to pursue inspection of these messages. The order established a protocol where the PIN numbers of the text messaging devices of certain city officials were given to SkyTel to retrieve the messages. Two magistrate judges were assigned to oversee and control the receipt of the text messages from SkyTel, review the text messages, and determine if certain text messages are discoverable under Federal Rule of Civil Procedure 26(b)(1).

Grange Mutal Casualty Co. v. Mack, 2008 WL 744723 (6th Cir. March 17, 2008). This is a Sixth Circuit opinion affirming a default judgment entered as a sanction for a host of discovery abuses, both paper and electronic. Several insurance companies sued Greg Mack in District Court in Kentucky. Mack was an operator of medical clinics that specialized in the treatment of automobile accident victims. The insurer Plaintiffs sued Mack for fraud and Racketeer Influenced and Corrupt Organizations Act (RICO) violations. In the words of the Sixth Circuit, “Mack bilked the companies by setting up medical clinics to treat auto accident victims and then using those clinics to diagnose phony injuries and overcharge the companies for the needless medical services performed.”

The district court ordered a default judgment for liability and damages as a sanction for Mack’s many egregious discovery abuses, including a few e-discovery abuses, such as secretion and destruction of computers. Mack appealed to the Sixth Circuit, and not too surprisingly, in view of the incredible history of defiance and refusal to provide discovery, the default sanction was easily affirmed. The Court opinion recounts some of the most damning evidence against Mack, including testimony from one of his former attorneys. Here is an example from the opinion:

Although our court hesitates, but is not entirely unwilling, to approve a default judgment when any misconduct is solely the fault of the attorney, Harmon, 110 F.3d at 367-68, we need not hesitate here because Mack perpetrated the discovery abuse himself. Mack personally instructed Dr. Santelices not to produce numerous discoverable documents and personally fired Dr. Santelices when the doctor turned over a complete copy of his date book instead of the edited version that Mack initially turned over. Mack personally changed the office computers despite pending litigation, refused to turn over other computers, and issued blanket, frivolous objections to the Grange plaintiffs’ discovery requests. Prior courts have treated similar frivolous objections as evidence of willful conduct. Bank One, 916 F.2d at 1074-75.Furthermore, Mack’s former counsel, Robert Riley, admitted that important documents had been removed from his files. Documents do not jump out of file boxes on their own.

The final words of the Sixth Circuit in Grange are well put, and I predict will be quoted frequently by litigants seeking sanctions for discovery abuse:

Our civil legal system hinges on voluntary discovery. Discovery abusers must be sanctioned, because “[w]ithout adequate sanctions, the procedures for discovery would be ineffectual.” 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2281 (2d ed. 1994). Judge Hood acted well within his discretion in ordering the default judgment. We affirm, both to punish Mack for his egregious conduct and to deter other litigants who might be tempted to make a mockery of the discovery process. See Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam).

 

Online Reference and Thirty One More e-Discovery Cases

I find myself using the search feature of this blog more and more these days. It is the fifth box down on the right, and only searches the contents of this blog. It works very well. I need this search feature, not only because my memory is limited, but because the content of this blog has become quite large. I was surprised to notice that I have somehow written and posted over 100 essays in the past year and a half. They cover most of the important e-discovery cases and trends since I started this blog in the Fall of 2006. Some of the major cases like Qualcomm end up with multiple blogs. The search box helps me to find them all fast, and it has become a useful research tool for my daily legal practice.

So I got to thinking what I might do to make this blog a more useful research tool for everyone? The answer was to post my collection of favorite e-discovery cases, most of which have not been previously included in the blog because they preceded it in time. So my blog for this week is my list of favorite cases, along with a brief summary of each case. I include this case digest in my CLE handouts anyway, so I thought it might be helpful to make them available in electronic, searchable form.

I start off with a few particularly interesting cases, some of which you may not have seen before, but most of which are classics. Then, I switch to an alphabetical list of the better known e-discovery cases. You are welcome to copy and paste this into your own private case lists. If you redistribute, please just mention that I wrote the case descriptions. If you want to send me additional cases with short descriptions following this style, I will go back and include them in this blog, but I cannot preserve your copyrights, since it may end up in my next book. I will, however, mention you as a contributor to the case list. If you have any other ideas to make this blog a more useful reference, please let me know.

My website FloridaLawFirm.com is also a good reference, especially the Links Page. These links are all e-discovery related and are a good source of information. I just updated this list and included several new sites that friends suggested. Send me an email if you have suggestions.

You will also want to try out the Google Custom Search Engine at the beginning of each page of FloridaLawFirm.com. This specialized search tool not only includes all of my webs, but that of several other e-discovery webs. The Google powered search is limited to the specified webs, including, among others, the excellent reference webs by Kroll, Applied Discovery, KL Gates, EDRM.net and Law.com. I also include a few general law sites from West and Cornell University, and even Wikipedia, Webopedia and others should you have tech-related questions. The specialized search function set up at FloridaLawFirm.com is a good way to find e-discovery information, including hundreds of e-discovery cases, without wading through the entire Internet. It tends to find what you want without too many false positives, thus saving valuable time.

Finally, after filling your head with so much law, you may want to check out the new comic relief added last month to FloridaLawFirm.com. There is now a YouTube video at the bottom of every page, including my official attorney resume page, where I include a link to my own YouTube video. No doubt another first of dubious distinction. Sorry, but I had to delete the music from my webs after Sonific.com closed down, but look for a new music service coming soon.

RCL’s Favorite e-Discovery Cases

Ignorance of computers is no longer a viable excuse. See: Martin v. Northwestern Mutual Life Insurance Company, 2006 WL 148991 (M.D Fla. Jan. 19, 2006). Plaintiff, a trial lawyer, and his counsel, are sanctioned for failure to produce only paper records, and plead “computer illiteracy” as to the voluminous additional electronic records that were eventually found on the plaintiff’s office computers. The District Court held that the attorney’s “claim that he is so computer illiterate that he could not comply with production is frankly ludicrous.”

My favorite “war–story” case, which we call the Case of the Midnight Hacker. Optowave Co. Ltd. v. Nitikin, 2006 WL 3231422 (M.D. Fla. November 7, 2006). The Akerman case, where Jim Foster was the trial lawyer, shows how e-discovery can be used as a case-winning tool in commercial litigation. Here defendant Nikitin, a citizen of Russia living and doing business in central Florida, produced very few emails. Our client, Optowave, a Korean corporation, moved to compel. Defendant tried to explain the missing emails by claiming that a computer hacker broke into his network at night and deleted everything. We challenged the veracity of that story and moved for sanctions for spoliation. There was then a full day evidentiary hearing on our motion where we offered forensic evidence and other proof of spoliation by intentional, bad faith destruction of evidence. Magistrate Judge Baker did not believe defendant’s midnight-hacker story. Our motion for sanctions was granted, fees were awarded, and an all-important adverse inference was granted that the missing emails would have contradicted defendant’s version of the communications. In the ensuing bench trial, this became a near conclusive presumption on a key fact establishing liability. Proof of liability in this case without the spoliation sanctions would have been very difficult, if not impossible, since our clients spoke little or no English. In fact, Optowave did prevail after a one week trial and a money judgment was entered against Nikitin, which was ultimately paid.

The most famous and important e-discovery case of all, Zubulake:

Zubulake I, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, (S.D.N.Y. 2003). This first opinion addresses the legal standard for determining the cost allocation for producing e-mails contained on backup tapes. Basic facts of this case: the plaintiff, Laura Zubulake, 44, was the director of the bank’s Asian shares sales desk in New York with an annual salary of $500,000. She sued the Swiss financial giant for gender discrimination and illegal retaliation. In her words, noted in her personal comment to this blog below (which caused me to revise this case description), she complained of: “denial and removal from professional responsibilities, exclusion from business outings, being belitted and generally treated different from my male colleagues.” During e-discovery she found emails from her employer confirming these allegations. The supervisor, and many of his colleagues, tried to cover up by deleting emails and denying everything. Judge Scheindlin and the jury did not buy it, and ultimately Zubulake was awarded Ten Million Dollars in pay, and Nineteen Million in Punitive Damages, for a total award of $29,000,000.00.

Zubulake III, Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) This decision allocates the backup tape restoration costs between Zubulake and UBS with a detailed explanation of the appropriate criteria and weighting.

Zubulake IV, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) This decision ordered sanctions against UBS for violating its duty to preserve evidence and in the process established a scope of duty to preserve back up tapes, but only in special circumstances.

Zubulake V, Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) Zubulake V requires outside counsel to make certain that all potentially relevant information is identified and placed “on hold”. In the words of Judge Scheindlin:

To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information.

Judges are upset by all of the mistakes:

Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. 2000). $10,000 personal fine of the CEO as part of spoliation sanctions for failing to take reasonable steps to preserve ESI; $1.5 Million in Fees incurred to try and protect the CEO from this personal liability. Court held that the Board was not personally liable.

Phoenix Four, Inc. v. Strategic Resources Corporation, 2006 WL 1409413 (S.D.N.Y. May 23, 2006). Plaintiff obtained sanctions in the form of a fee award against both the defendant and its attorney for the late production of electronic records caused by dereliction of investigation duties set forth in Zubulake. The court also applied future Rule 26(b)(2) and required disclosure of the sources of inaccessible data. In this case, the data was not inaccessible at all, it was just hidden by defendants in a partitioned section of the hard drive. The attorney did not understand this and personally paid for his ignorance. Cases like this cause many attorneys to bring in experts to assist in e-discovery.

Keir v. UNUMProvident Corporation, 2003 WL 21997747 (S.D.N.Y. 2003). A series of total mess-ups and miscommunications by defense counsel, IT staff, IBM, and others concerning backup tapes and data retention lead to unintentional spoliation and violation of a preservation order.

Plasse v. Tyco Elec. Corp., 2006 WL 2623441, (D.Ma. Sept. 7, 2006). Employee/Plaintiff’s case is dismissed because of e-discovery abuses and attempt to fabricate computer files and defraud the court; the case is won by good computer forensics.

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla.Cir.Ct.. 2005). 1.45 BILLION DOLLAR ($1,450,000,000.00) Jury Verdict entered against defendant brokerage after numerous sanctioned e-discovery abuses and adverse inference instructions. Note the Plaintiff, Ron Perlman’s, initial settlement demand was purportedly “only” Two Hundred Million dollars. Defense counsel certified all records had been produced, but later many more backup tapes were discovered. The case demonstrates a series of technological blunders that look like spoliation. Reversed on appeal for grounds having nothing to do with discovery sanctions.

Carlucci v. Piper Aircraft, et al, 102 F.R.D. 472 (S.D. Fla. 1984). A horror story of e-discovery abuses and errors by defendant, involving a special master appointed by the court and an angry district court judge who enters the extreme sanction of default, plus fees and costs.

More cases of interest:

3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006). Patent infringement case where an adverse inference sanction is imposed against defendant because of failure to initiate a litigation hold, resulting spoliation and other improper discovery conduct, such as the president’s coaching of witnesses at depositions. The president is also banned from attending any more depositions.

Applied Telematics, Inc. v. Sprint Communications Co. L.P., 1996 WL 33405972 (E.D.Pa. 1996). Patent infringement case where plaintiff granted an adverse inference instruction, fees and costs as sanctions for spoliation because some backup tapes that were later determined to have relevant evidence were not preserved, but were instead allowed to be written over as part of routine procedure.

Bills v. Kennecott Corp., 108 F.R.D. 459 (D.Ut. 1985). Age discrimination suit where court considers the costs of computer production and requires employer defendant to bear the costs, rather than shift the burden to the plaintiffs.

Bob Barker Co., Inc. v. Ferguson Safety Products, Inc., 2006 WL 648674 (N.D.Ca. March 9, 2006). Lanham Act case where court rejects request for production or inspection of software based financial databases, noting that it is unclear how a dynamic collection of data which changes over time could be produced. Court noted the plaintiff could later request expert examination of defendant’s computers to run database reports upon a showing of good cause.

Dodge Warren & Peters Insurance Services, Inc. v. Riley, 105 Cal.App.4th 1414 (4th Div. 2003). In an action against former employees who left to start their own competing business, the California appeals court affirmed the trial court’s entry of a preliminary injunction requiring the preservation of electronic evidence, and allowing a court appointed expert to image and search defendant’s computers.

In re Carbon Dioxide Industry Antitrust Litigation, 155 F.R.D. 209 (M.D. Fl. 1993). Depositions under 30(b)(6) to “identify how data is maintained and to determine what hardware and software is necessary to access the information are preliminary depositions necessary to proceed with merits discovery.”

In re Ford Motor Co., 345 F.3d 1315 (11th Cir.2003). Ford obtained a writ of mandamus directing the district court judge to vacate a discovery order requiring Ford to provide plaintiffs with direct access of its computer databases to search for similar seat belt incidents. There is no right to directly access another’s computer systems. Instead, only the reports and data output of the computer systems must be produced. Must show prior noncompliance to justify direct access, and even then it should be restricted and other safeguards provided.

In re Prudential Insurance Company of America Sales Practice Litigation, 169 F.R.D. 598 (D. New Jersey 1997). Records were not preserved as a result of an ineffective litigation hold notice and enforcement. A $1,000,000 fine was imposed as a sanction, plus fees. The court severely criticized Prudential for not having “a comprehensive document retention policy with informative guidelines and lacks a protocol that promptly notifies senior management of document destruction.”

Leon, M.D. v. IDX Systems Corp., 2006 WL 2684512 (9th Cir. Sept. 20, 2006). Doctor employee case dismissed with prejudice and defendant awarded $65,000 in fees as spoliation sanctions. The defendant employer proved that the doctor had erased 2200 files from his employer owned-laptop during case pendency, including some pornographic files. District Court took this action even though the DOL determined during the case pendency that the doctor had been wrongfully discharged as his complaint alleged. Ninth Circuit affirmed, finding that no privacy rights had been violated.

Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Ca. 1999). Playboy sued a former playmate of the year for trademark infringement who counter-sued for emotional distress. A discovery dispute arose and Playboy asked the court to allow it to access the playmate’s hard drive to create a mirror image of the whole thing so as to search for deleted emails. The playmate testified it has always been her practice to delete emails the same day she reads them, and then to delete her trash. The Magistrate allowed the hard drive inspection, but only through a court appointed expert, who would act as an officer of the court, and protect the defendant’s privacy and attorney client privilege. Data recovered by the expert, along with the mirror image of her hard drive, would be turned over to defense counsel, not the plaintiff. Defense counsel would then review and produce any recovered emails or other materials deemed relevant and create a privilege log.

Pueblo of Laguna v. United States, 60 Fed.Ct. 133 (2004). The Pueblo Tribe sought an order requiring the government to preserve certain electronic records pertaining to their claims. The government argued unsuccessfully that the U.S. Court of Federal Claims did not have the authority to enter such an order tantamount to an injunction. The Court held that it was part of its inherent powers to order the preservation of evidence. A record retention preservation order was entered that not only prohibited the deletion of records, but provided the Plaintiff with inspection rights to inactive records. The Plaintiff’s requests to inspect active records or limit records transfers were denied. The order includes lengthy definitions of documents and preservation.

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006). Cost shifting case where defendant succeeded in having the plaintiffs pay for 30% of their $226,000 backup tape restoration and search expenses with Kroll.

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). District court denied defendant an adverse inference instruction because the email production was delayed due to negligence, not gross negligence or bad faith. Appeals court reverses; simple negligence alone is sufficient to justify this sanction, especially where plaintiff’s counsel was “purposely sluggish” in not producing the emails until after the trial had started.

Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001). Dismissal of Plaintiff’s case was upheld because of spoliation; he did not preserve his allegedly defective car for defendant to inspect. The court rejected arguments that it was not his fault, it was his attorney’s, and he had no duty to preserve the car because he did not own it, his parents did. The Court articulates its inherent powers to impose sanctions, including the ultimate sanction of dismissal, where critical evidence is not preserved, even if the loss was merely the result of negligence, and not bad faith.

Simon Property Group LLP v. mySimon, Inc., 194 F.R.D. 639 (S.D.In. 2000). Plaintiff moved to compel defendant to make computers available for inspection to attempt to recover deleted files. The court held that deleted computer records are discoverable documents and allowed the inspection at the plaintiff’s own expense, following the guidelines set forth in the Playboy case; imaging, outside expert review, followed by review by plaintiff’s counsel.

Stevenson v. Union Pacific Railroad Co., 354 F.3d 739 (8th Cir. 2004). Audio tapes concerning an accident were destroyed as part of the railroad’s usual records retention policy; still an adverse inference instruction was justified as a spoliation sanction because it was not reasonable to follow the policy under these circumstances, and because the railroad had departed from this practice in the past when the voice tapes were helpful to the defense. Appeals court did, however, reverse on the trial court’s refusal to allow the railroad to present evidence to try to rebut the inference by providing testimony that the tape destruction was in accord with its records management policy. The case was remanded for a new trial.

Tessera Inc. v. Micron Technology, Inc., 2006 WL 733498 (N.D.Ca. March 22, 2006). Third party subpoena of electronic database records where a key dispute was the parties’ inability to agree on search terms to harvest the data. The court decided what search terms should be used. The third party was ordered to produce certain other databases in their entirety on DVDs because the third party claimed that they could not be searched for screening. The third party’s request for an award of costs incurred, over $70,000, was granted.

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004). Sex harassment class action where the plaintiffs were looking for pornographic materials on defendant’s computers to prove hostile work environment. Kroll Ontrack was hired by plaintiffs to search the email server backup tapes in eleven offices. Pornography was found in 8,860 emails and the plaintiffs sought to have defendant pay Kroll’s entire $249,000 bill. The Kroll search system and deduplication is explained in some detail. Sampling was used, along with competing search terms. The parties debated how much porn was found on a percentage basis of total emails with plaintiffs claiming 21.3% and defendant claiming only 1.64%, and the overall value and utility of the search. A modified Zubulake II test was employed to determine who should pay for the e-discovery. The decision itself is a compromise; the plaintiffs were ordered to pay 75%, and the defendant 25%.

Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D.Kan. 2005). This is an important case discussing native files, metadata, and the hashing of electronic evidence. This was an age discrimination class action where defendant at first produced Excel spreadsheets in TIFF format. Plaintiffs complained, stating they needed active files so they could see the formulas and run the files for analysis. Defendant agreed to produce the active Excel files, and after several delays finally did so. Plaintiffs then discovered that the Excel files had all been scrubbed of all metadata and certain cells locked so they could not be accessed. The Court had ordered defendant to produce the Excel records as active files “in the same manner as they were maintained” and so ordered Sprint to show cause why sanctions should not be entered for its unauthorized metadata scrubbing. Defendants argued that there was an emerging standard against the production of metadata. The court discusses metadata at length, what it is, and why it can be important and what the commentaries, primarily Sedona, and case law suggest is the emerging trend as to metadata scrubbing or production. The Court in its lengthy opinion disagrees with defendant, holding that metadata must be produced absent agreement or court order, and so ordered Sprint to produce the Excel files again, but this time with metadata intact and cells unlocked. Sanctions were not, however, imposed since metadata had not previously been specifically discussed or ordered.

e-Discovery at the Harvard Club in New York City

The stately 19th Century Harvard Club this week hosted a cutting edge 21st Century conference on e-Discovery. It was organized by ALM, who also puts on the Legal Tech trade shows. I was curious to see this private club and happy to speak at this event for N.Y. paralegals and attorneys. I was not disappointed by the wood-paneled Harvard atmosphere (where I took a few photos shared here), nor the content of the CLE. The event entitled Managing Today’s Discovery Process was well run, thanks to the organizer, Karen Abrams of ALM, and the program chair, Sherry Harris, the Senior Case Management Specialist for Hunton & Williams.

David Shonka of the FTC

Before the event, I got a chance to speak with the head of the Federal Trade Commission’s e-discovery team, David Shonka. David is also the FTC Assistant General Counsel for Litigation. David, like me, didn’t go to Harvard and was delighted to see the inside of the Harvard Club for the first time. We started talking about Qualcomm and both agreed it was The Big Case of the year. He endured my righteous rant about Qualcomm and attorneys who do not play by the rules, the ones who deliberately hide evidence they know should be produced. We also agreed that this kind of unethical conduct was nothing new, nor unique to e-discovery. It has always gone on, but in the olden days of paper discovery, it was far harder to expose. Today, with electronic discovery, hide the ball is suddenly a high risk undertaking. David picked up on my somewhat angry tone (over the years I have suspected several opposing counsel of playing this game, but have never been able to prove it). He said that in view of my strong opinions on this topic, I would probably like his presentation.

He was right. The FTC e-discovery team leader began with an overview of the incredible facts of the Qualcomm case. This was a prelude for this primary message, that there are only three fundamental principles to follow in e-discovery. They are, in his words:

Don’t Lie.
Don’t Hide Things.
Don’t Make Promises You Can’t Keep.

David pointed out that a law firm’s reputation for truth and honesty are key. If David thinks he is dealing with a lawyer that does not follow these fundamental precepts, then the FTC will naturally be much more demanding in their requests for information, and harsh in their treatment. Conversely, David is willing to negotiate and exercise leniency when an attorney is honest and forthcoming, and reveals the bad with the good. This attitude, in my experience, is also followed by most judges.

On the point of “don’t hide things,” he stated that anytime you have to have meetings, to try to “figure out an argument why something is not responsive, it is responsive.” You should produce it, you should not try to hide it. If not, in David’s words, you risk the principle that: “You are known by your last lie.” And that reputation will last for a long time. No doubt the boys in the 18th Century Harvard Philosophy and Advocacy Clubs (certificates shown above) would have agreed.

The FTC e-discovery chair stated that, in his view, parties have three general options for responding to discovery:

1. Hardball - prolongs investigation and is costly.
2. Let’s-see-if-they-can-find-it - again, prolongs investigation and is costly.
3. Co-operation - fastest, surest results and is the least costly.

David said the third path of “negotiation” is only the way to go for all e-discovery situations, but especially if you are responding to the FTC. No doubt the Harvard class of 1925 shown below would agree. (Note the sign they are holding on the right is not about one of my ancestors, instead it says “The Mess is Still Fundamentally LOUSY”, which is, I think, a reference to the food.)

Aside from general principles, David also had some practical advice on e-discovery, and how to find the relevant information, and not waste your time on non-responsive ESI. Here is his chart of the process he recommends:

Process of Narrowing ESI:

1. Preliminarily Identify Issues and Sources of Information:

a. Key players (12-36 max in any case)
b. Occasional players (only search if you have to)
c. Fringe players (rarely ever search)

2. Data

a. Enterprise systems
b. Local systems (particular office or groups)
c. Individual systems
d. Archives
e. Back-ups (and Legacy Data)

Most of the time all of the relevant data needed for a case will be stored on the key players’ Enterprise, Local and Individual systems. Sometimes you may also need to look at Archives too, depending on what you find in the more easily accessible stores, and how difficult it is to get at the ESI on Archives. Back-up tapes and Legacy Data are not usually needed. David explained that the FTC typically only requires two daily backup tapes be preserved, just in case they want to look at them later, which they usually don’t. He noted with a chuckle that the FTC picks which two tapes to preserve, not the respondent, and they usually just pick two at random.

On the issue of Litigation Holds, the FTC team leader recommended that a senior, experienced attorney personally supervise the preservation process and deal with all of the key players directly. This is at odds with the practice of many companies and firms that tend to delegate this task to younger, less experienced attorneys or paralegals. Probably not a good idea to do that when dealing with the FTC. If a second year associate messes up, you are not likely to have much sympathy. If an older guy like me screws up (yes, it happens), maybe they will cut you some slack.

On a promising note for large companies, he said that parties and the courts should always remember that companies are not in the business of preserving and holding evidence to produce to adversaries who may someday sue them. If e-discovery becomes so burdensome that it impairs businesses’ operations, then something is fundamentally wrong.

David’s presentation also included the fundamental message of this blog, that building an interdisciplinary team is key to e-discovery compliance. He recommended, as do I, that the team include IT, in-house and outside counsel, and vendors. He also advised that you “get everybody in the same room.” Otherwise, you will inevitably play the old child’s game of telephone, where a simple message is whispered for one person to the next, and by the time it reaches the last person, it is totally screwed up. He said it may seem expensive to some companies to assemble such a multidisciplinary team, and have them meet regularly and in-person, but he is convinced you save money in the long run.

Apparently the FTC has been using such a team approach to e-discovery for several years now and they are pleased with the results. He told me before the CLE started that they now have two attorneys who only do e-discovery, and they have help from a number of techs and paralegals. Of course, the FTC cannot force companies under investigation to also use a team approach, and specialized attorneys, but David did say publicly that they will sometimes refuse to meet with a company’s lawyers unless they bring the IT liaison with them to the meeting.

David also spoke of the serious risk of just relying on custodians for self-collection. They may print out, or transfer to a disk, but they are likely to do it in a way that messes up the metadata. He stated that metadata is only rarely needed for production, and depends on the case, but you should still try and preserve it as best you can. Still, the main reason you should not rely on custodians alone for collection is that they are “self-interested.” They may, for instance, want to avoid embarrassment and not produce certain very relevant emails that they wished they had not written. In his opinion, you can do the collection in-house, and do not have to hire an outside vendor, but you should use a qualified technician to go to the computers and collect the data, and not just rely on the custodians. As to forensic imaging, where outside experts are typically used, that is only rarely needed in special cases where there are indications of criminal conduct.

Sherry Harris

Sherry provided the opening keynote address. She has over 30 years experience with Hunton & Williams and is now the dynamo behind their e-discovery efforts. Although not an attorney, she knows far more about the subject than most experts. She commented on my sports analogy blog on e-discovery, and said how important it was for paralegals to help make sure the attorneys they support never drop the ball. Like most everyone else, she also talked about Qualcomm, and the outside counsel who now stand to be sanctioned. She emphasized that this is something you never want to have happen to your law firm. One way to avoid this is for lawyers and paralegals alike to, in her words, “stay aware of evolving case law.” She also said that in her experience, “traditional discovery is gone forever; but right now people are resisting the changes.” Her advice: “Make technology your friend.”

Vendor Selection and Negotiation

Next, Jennifer Tomaino, attorney member of the Verizon e-Discovery Team, and Oliver Gierke, Litigation Case Manager for White & Case, presented on Vendor Selection and Negotiation. It would be hard to imagine two people better qualified to speak on that topic. Jennifer is Patrick Oot’s “right hand man” (so to speak) for Verizon, and so has a good perspective on corporate e-discovery teams and their procurement of vendor services. Oliver is a key technical member of the White & Case e-discovery team, a law firm with 2,300 lawyers in 37 offices located in 25 countries.

Jennifer and Oliver both noted that paralegals play a key role in vendor selection because they work closely with vendors to get the work done, and are in the best position to evaluate performance. They also both commented on how big the e-discovery industry has become, now approaching three billion dollars a year

Jennifer Tomaino stated that Verizon does its own preservation and collection, and vendors do not usually get involved until the procession stage. Verizon is looking to take even more of the e-discovery process in-house in the next few years, and may move into review. In her experience, the review tools that the vendors offer are all fairly similar. She cautioned that “technology can help, but is only as good as the people using it.”

Jennifer suggested that you look for recommendations from others who have recently used a vendor. Also, you may want to employ a formal two-step procedure where you issue an RFI - request for info, and then an RFP - request for product proposal. She suggested you study the Sedona’s sample RFP in their vendor selection paper, but do not simply use the form without thought and customization. Jennifer also noted, and Oliver agreed, that a Vendors’ project managers are key. They need to provide quality, accessibility and responsiveness (24/7). Since Verizon is, in Jennifer’s words, a serial litigant, they can get the best rates because of the volume. Still, try and be creative in making deals with vendors, who usually charge by the amount of ESI, and/or time. For instance, she suggested trying to get a deal where you only pay for hits, not misses.

Oliver Gierke has found that vendors can offer both expertise and cost control. Their expertise includes: 1) data forensics, which he has never seen done in-house because you may need an independent expert to testify on authenticity and chain of custody; 2) collection; 3) processing; 4) hosting data for review because most companies and firms do not have the capacity to store large amounts of ESI; 5) production; and 6) consulting. Vendors can provide cost control by: 1) exclusive or long term contracts at discounted rates; 2) retention of data only when needed; and 3) hiring contract lawyers for review. He thinks that a good vendor can save you a lot of money, although the expenses are front-loaded at the beginning of the case. Oliver also noted a few pitfalls of reliance on outside vendors. Their services are expensive, there is less control than doing things in-house, and more room for miscommunications.

Oliver recommends that you meet with vendors in person and know in advance who will be assigned to the project. You should make sure that the vendors can clearly explain what they will do in a way you can understand and explain to others. Beware of those who speak only in jargon. Also, and many who spoke at the CLE later emphasized this point, be sure to find out if the vendor is going to use subcontractors and check them out as well. Look out for vendors who get the contract and then sub everything out to third parties. Finally, Oliver recommends that you renegotiate pricing with a vendor every 6-12 months. The industry is rapidly changing and prices are going down.

Tom O’Connor

Next up was Tom O’Connor, who spoke on Cost Containment Strategies. Tom is an independent consultant from New Orleans, and the Director of the Legal Electronic Document Institute, a non-profit he organized. Tom noted the technology consulting company, Gartner, estimates that 20% of the e-discovery companies existing today will be out of business in a year. He suspects many of the rest will be lost through consolidation, with a few big companies buying all of the rest.

Tom opined that process management is key to cost containment. You need to set up best practices that are repeatable, yet still flexible. Tom also pointed out the inherent tension between in-house counsel trying to preserve costs, and outside counsel who must answer to the judge, and have an ethical duty to the client and the court. Again he talked about Qualcomm, but pointed out that this is nothing new; there are many cases driven by this conflict.

The part of Tom’s presentation I liked the most was his discussion of the paradigm shift now in progress in e-discovery, as a mirror of the world. The Old Paradigm was based on single page TIFF with bates numbers, and review as single pages. It thought of documents in terms of paper pages. The New Paradigm is native file based, where you produce, process and review in native format. Our idea of a “document” should completely change. It is all bits and bytes now. Stop treating it like paper where you Bates stamp each page. Under what Tom calls the new Docucentric paradigm, you set up a unified enterprise wide relational database with data extraction as needed. Under the new system you automatically extract metadata fields, and do deduplicating, near deduplicating and other processing. He thinks that good content management systems are key to making this happen. The new native ESI paradigm is faster, more efficient and far less expensive than old paper concept systems.

I agree with Tom wholeheartedly on these new native paradigm insights. Tom said that many object to going native because they think you need TIFF and bates numbers in order to preserve authenticity and stay organized. Tom disagrees and thinks that the Bates stamp has been replaced conceptually by hash, and cited to my law review article, HASH: The New Bates Stamp. He thought I was going to speak about that later (I wasn’t). The bottom line for Tom is that there is a huge cost reduction possible by eliminating TIFF and working in native. Tom claims it is in the range of 30-40%, but notes that some vendors claim the savings is more like 80-90%.

Afternoon Program

Next came lunch, followed by my presentation: e-Discovery Teams: the New Gold Standard. I explained why corporations and law firms are moving to the multidisciplinary team approach, and corporations’ especially are taking it in-house. I covered the benefits of the team approach, and why so many companies are having trouble doing it. Everyone seems to agree it is the Holy Grail of e-discovery, but just like the mythical chalice, it is nearly impossible to find. I had a good time because the attendees were very attentive and laughed at the right times. As a plus, I got to use my new Macbook Air and Keynote 2008 presentation software.

After me came several good presentations, but they will be shortchanged in this blog simply because I was too tired after my work to focus and take notes of what they said. Scott M. Cohen, Director of Practice Support for Proskauer Rose presented with Dottie Perillo, a paralegal from Dupont’s e-discovery team. They spoke on a subject close to mine, Achieving a State of Litigation Readiness - Bringing About Effective Dialogue Between Inside and Outside Counsel and the IT Department. I do recall meeting Scott the night before and trading old computer stories. I do not run into that many people who remember my first computer, the TI-99/4A, nor appreciate how amazing it was to be able to program both speech and animation on it back in 1981. Scott is also one of the few people I have met who actually used the whistle in the Captain Crunch cereal boxes as part of his telephony research when he was a kid in high-school.

Next came the unforgettable Monica Bay, Editor-in-Chief of Law Technology News. Her topic was How EDD is Changing the Job Market. I remember her strong presence and unbridled enthusiasm, but not enough of the content about the job market to try to summarize it. I think she said it was in fast transition, and right now, no one is too sure where it is going. The only thing clear is that paralegals with good computer e-discovery skills are in very strong demand, and this demand is certain to increase. I also recall her scolding many blue chip law firms for not being inclusive enough of paralegals and IT. She also talked about Darwin and survival of the most agile, and that if the old line big firms did not change fast, and form bona fide interdisciplinary teams, that they will go the way of the dinosaur. They will not be able to compete, and their l