Showing posts with label case opinion. Show all posts
Showing posts with label case opinion. Show all posts

When Duty to Preserve Meets Personal Social-Media Accounts

Bryant Bell

Here is a case where the Court ruled that the jury could draw an adverse inference against a plaintiff for his failure to preserve potentially relevant evidence. In this case it was spoliation of potentially relevant information contained on his Facebook account. Now, in my opinion, I believe that this plaintiff got the short end of the Court’s understanding and the Defendant’s counsel’s manipulation of social media as evidence.

Gatto v. United Air Lines, Inc.: Was the Baggage Handler Injured or Not?

The case, Gatto v. United Air Lines, Inc., et al., Case No. 10-cv-10909-ES-SCM (D.N.J. Mar. 25, 2013) was a personal-injury claim by the plaintiff, Frank Gatto, who was injured while unloading baggage from a United Airlines aircraft. Gatto claimed that the injuries he sustained, "rendered him permanently disabled" and limited his physical and social activities to the extent that he was no longer able to work.

Rolling the Dice on Legal Hold: Still Not Worth the Risk

Daniel Lim

On July 10, 2012, the Second Circuit issued an opinion in Howard Chin v. The Port Authority of New York & New Jersey, 2012 WL 2760776 (C.A.2, 2012), addressing the legal standard for failure to issue a legal hold notice for relevant evidence. The opinion limits the often-cited standard for legal holds announced in Pension Committee by Judge Schiendlin in 2010.

The Chin case is an appellate opinion that addresses the alleged failure to institute a legal hold for relevant files. The case involved a group of Asian American police officers alleging violations of Title VII by the New York and New Jersey Port Authority based on being passed over for promotions. Charges of discrimination were filed in January of 2001. During discovery, the plaintiffs learned that the Port Authority had failed to issue a legal hold to preserve at least thirty-two promotion folders used to make decisions between August 1999 and August 2002. Plaintiffs sought an adverse inference instruction for the spoliation. The district court denied the motion, finding ample alternative evidence regarding the relative qualifications of the plaintiffs. The district court found that the defendant’s destruction of relevant documents was “negligent, but not grossly so.”

Judge Schiendlin Re-Affirms Dangers of Self-Collection in Opinion

United States District Court Judge Shira A. Scheindlin (author of the Zubulake (2004) and Pension Committee (2010) decisions) has issued another seminal e-discovery opinion in the saga that is National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al. 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012). This marks her fifth decision in the case. The last time we discussed the NDLON case was in the context of metadata and Freedom of Information Act (FOIA) requests [i.e., metadata contained in responsive electronically stored information is producible in FOIA requests (opinion withdrawn)].

The July 13, 2012 opinion still centers on FOIA requests; however, the issue this time around focuses on the effectiveness of the defendants’ searches for relevant ESI in response to the plaintiffs’ request. 

The main take-away from this opinion is Judge Scheindlin’s harsh criticism of custodian self-collection, which is how many of the defendant agencies in this matter conducted their searches and collections.

Another Lesson from Delta Airlines – The Need For Evidence Re-Use And A Single Instance ESI Repository To Harmonize Productions Across Different Law Firms And Cases

Daniel Lim

A few months ago, we blogged on the In re Delta / AirTran Baggage Fee Antitrust Litigation, --F. Supp. 2d--, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012) as to the issue of the failure to have a defensible process for making sure that all of your collected evidence gets put into your review / processing platform. I recently reviewed the opinion again and noticed a second important lesson from the case --- the need to harmonize your productions across different cases and law firms.

The shoe that dropped in the Delta Airlines case was that after making repeated assurances to the Court that counsel for defendants had produced all relevant documents for the bag-fee case, 60,000 pages of documents surfaced from a separate DOJ investigation against the defendant that were relevant and had not been produced in the baggage-fee case. Upon investigation by defendant as to why the documents had not surfaced for the case, defendant explained that the documents were collected and reviewed in the DOJ investigation by a law firm that was not involved in the baggage fee case. In other words, the defendant had a classic case of the right-hand law firm not knowing what the left-hand law firm was doing. The Court described the oversight as a “huge hole” in the defendant’s electronic discovery process and granted plaintiffs’ motion for sanctions, including the costs of extending the discovery period for the newly-produced documents.

Law firms working with blinders on and focused on the particular case at hand is nothing new. It is an institutional factor endemic to the litigation process. Each case stands or falls on its own merits. Accordingly, ESI routinely is collected, processed, and reviewed on a case-by-case basis, without little or no view into what has been done for other cases.

Guidance’s EnCase eDiscovery provides two ways to mitigate such risks. First, our on-premises software provides Collected Data Re-Use, which allows the search of previously collected evidence containers across multiple cases for evidence that, as in the Delta case, was collected for a different matter but was relevant to the case at hand. Second, CaseCentral’s single instance repository provides a highly-efficient method to reduce ESI across multiple cases to its lowest common denominator (e.g., de-duping files and only storing a single copy), and to keep track of different matters for which the ESI is relevant.

In the Delta case, the combination of these solutions would have allowed the defendant to (1) search across individually collected evidence files from other cases and determine if such evidence was relevant to its baggage-fee case and (2) store only a single-instance of the files in its evidence repository and manage the same evidence across multiple cases.

Of course, the primary lesson about having a solution that enables a defensible process for tracking evidence from collection through review remains. The case illustrates that having a defensible process is more than just about hashing files or having secure evidence containers --- it is about having the right solution end-to-end that is focused on actual litigation work-flow needs beyond review and archiving.

“Championing” the Preservation of Keywords in eDiscovery

Chad McManamy

Judge Nolan Suggests “Irish Charm” in Kleen Products

With less than four months remaining on the bench, Magistrate Judge Nan Nolan (Nolan \n(o)-lan\ that of Irish and Gaelic origin with a meaning of "champion"), is attempting to bring closure to the heated discovery dispute in the high profile Kleen Products, LLC et al. v. Packaging Corporation of America, et al., 1:10-cv-05711 case. At issue in the dispute is plaintiffs’ motion to order defendants into a do-over on their document collection and production process. The plaintiffs have moved the court to require defendants to use alternative technology (suggesting either “predictive coding” or “content based advanced analytics”) as opposed to the custodian-specific keyword search the defendants have already employed. The request came at a time when defendants were nearly finished with their collection and were preparing for production. As could be anticipated, the plaintiff’s untimely motion has provided an even more contentious discord between the parties. With a playful nod towards her lineage, during a March 28, 2012 hearing, Judge Nolan suggested the parties have a call with each other prior to a call with the court and that they each at least bring “whoever has the most charm, some Irish person . . .” to facilitate cooperation between the parties.

Apart from parties’ willingness or unwillingness to cooperate on discovery issues, the idea of technology assisted review has come to top of the agenda in many e-discovery discussions. Often overshadowed in these discussions is the continued need to use keywords in some capacity to search, collect cull, and review electronically stored information. In fact, keywords can be the starting point for initial sample set used to train the predictive coding algorithms. And since most litigants have experience negotiating keyword lists, this continues to be a good starting point for identifying potentially relevant data.

To her credit, Judge Nolan appears to making every effort to move the discovery disputes along. And, while she is not moving mountains for the parties, she is willing to accommodate their schedules to hold as many hearings as necessary and get a grasp on the oft confusing technical issues being argued. At one recent hearing, she foreshadowed her likely decision on plaintiff’s motion should they continue down the path of asking for the imposition of a completely different technology by stating her support for The Sedona Conference Principles for Electronic Document Production, Principle 6: Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
Perhaps if the parties had employed TSC’s Principle 3 early in the discovery process, they could have avoided this costly expedition and monopolization of the courts precious resources.
Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
In one of the more straightforward statements to the court, counsel for one defendant speaking on behalf of all defendants stated:
We really believe both sides are trying to do the same thing which is to figure out who are the people and where are the places in the company where responsive, relevant information exists and how can we get it produced?

The difference is that because the plaintiffs are obviously coming to this without having worked at these companies, they need to describe things in a certain level of generality, and the companies very familiar with how their businesses work have attempted to identify the actual people who are doing the things that are the subject matter of the plaintiffs’ complaint.
If only it were that easy! The asymmetrical nature of this antitrust case could mean plaintiffs counsel’s discovery detour is more tactical than substantive. To date, plaintiffs have produced less than 1% of the volume of documents compared to the cumulative total of the seven defendants (roughly 25,000 pages for plaintiffs compared to around 3 million pages with additional productions likely to happen in the coming months for defendants). Waiting until the defendants were 99% finished with their collection and processing to demand an alternative approach would not likely have occurred in a case where the moving party would be subjecting itself to the same costs and burdens it is asking the court to impose on the other party. Incidentally, it is not clear if the plaintiffs employed the same technology for their collection and production that they are asking the court to impose on the defendants.

Given the conspiratorial nature of the allegations and the sophistication of the senior executives allegedly involved, plaintiffs attempted to force defendant’s to use technology assisted review to look for evidence to support their Sherman Antitrust claim. Judge Nolan took a different tact by getting an expert witness to agree to the viability of using a non-custodial Boolean search to accomplish this same goal. And while there are still many more steps necessary to resolve the discovery issues, Judge Nolan appears to have gotten the parties to engage in a dialog of modifying the keyword approach rather than abandoning it completely. In the famous words of Samuel Clemens (better known as Mark Twain) the son of a not so famous attorney and judge, “the reports of my death are greatly exaggerated.” So too are the reports of the death of keywords.

Unfortunately, Judge Nolan may be running out of time to get this across the finish line. Following a suggestion by plaintiff’s counsel, the parties met and conferred just prior to an April 19, 2012 hearing in an effort to get some scope around the issues. Based on these seven separate conferences, plaintiffs estimated to the court that just to get to a state of completed productions would take until the end of this year. Follow that with potential motions to compel and further procedural morass and this case may not get to the merits until Judge Nolan’s one year anniversary from leaving the bench. Should she continue “championing” an agreement between these parties involving a non-custodial Boolean search that moves the case forward before she leaves, it would be an amazing accomplishment and provide litigants in other cases to consider avoiding over-reliance on alternative technologies.

Southern District of New York Implements Pilot Program for ComplexCivil Cases, Order Requires Express Certification of Competence

Patrick Burke

On November 1, 2011, the Judicial Improvements Committee of the Southern District of New York ("JIC") – chaired by prominent e-discovery judicial thought-leader US District Court Judge Shira Scheindlin – implemented a new Pilot Program that expressly imposes, among other things, a duty of competence in complex cases involving issues of electronic discovery.

This order, which can be found here, is anticipated to be in place for 18 months. Section 2 of the Submission requires counsel to certify e-discovery competence:

(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.