Archive: May 2014

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Court Rejects Unilateral Decision to Apply Predictive Coding to Keyword Search Hits, Orders Production of All Hits Pursuant to Clawback Order as Stipulated
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“Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals.”
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Court Orders Forensic Examination for Inadequate Preservation & Collection, Confirms “Basic Rule” that Custodians must be Consulted for Input on Search Terms
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Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants
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Proposed Rule 37(e) Draft Committee Note Now Available
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State Bar of California Issues Interim Opinion on Attorneys’ Ethical Duties in the “Handling of Discovery of [ESI]” – Public Comment Invited

Court Rejects Unilateral Decision to Apply Predictive Coding to Keyword Search Hits, Orders Production of All Hits Pursuant to Clawback Order as Stipulated

Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014)

In this case, the parties agreed upon an e-discovery protocol which was memorialized in a court order.  Shortly into its review, Plaintiff determined that the agreed-upon methodology (manual review of search term hits) would be too time consuming and expensive and decided that it would instead apply predictive coding to those documents identified by the agreed-upon search terms—which it began doing without consulting the requesting party or the court.  The requesting party, FDIC-R (FDIC as Receiver), opposed Plaintiff’s unilateral action for several reasons, including the lack of transparency around the predictive coding methodology employed and that the predictive coding protocol did not comport with the recommended “best practices” for the chosen software program.  Ultimately, despite expressing support for the use of predictive coding in discovery, the court ordered Plaintiff to produce all of the documents identified by the agreed-upon keywords, subject to a clawback order, where such a production had been memorialized as an acceptable option in the stipulated order and where Plaintiff had abandoned the option it originally selected (manual review).  The court also noted the FDIC-R’s commitment to devoting the necessary resources to review the documents quickly and thus allow discovery—which had been “stalled for many months”—to move forward. Read More

“Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals.”

In re Domestic Drywall Antitrust Litig., —F. Supp. 2d—, 2014 WL 1909260 (E.D. Pa. May 12, 2014)

The issue presented is whether Plaintiffs must provide facts supporting Plaintiffs’ allegations—a frequent issue in antitrust litigation. The Court concludes, because of Plaintiffs’ counsel’s felicitous access to electronically stored information, that Plaintiffs must provide a pretrial statement setting forth the facts they now have, and Defendants must subsequently reciprocate.

Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals. Read More

Court Orders Forensic Examination for Inadequate Preservation & Collection, Confirms “Basic Rule” that Custodians must be Consulted for Input on Search Terms

Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014); No. 12-24356-CIV, 2014 WL 1047748 (S.D. Fla. Mar. 18, 2014)

In this pair of opinions, the court addressed the obligations of client and counsel with regard to the preservation and collection of electronically stored information and the obligation of counsel to obtain input from relevant custodians when crafting search terms.  In the first opinion, in light of deficient efforts to preserve and collect potentially relevant information, the court ordered an extensive forensic examination of Plaintiff’s data repositories by a neutral third party and crafted a protocol for the production of information identified by the search terms applied.  In the second opinion, the court confirmed the “basic rule” that “outside counsel ‘must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use’” and ordered Counsel to “obtain search word input from all the ESI custodians” and to pay a portion of the attorney’s fees awarded, with his firm to pay the rest.  The court was specifically critical of Plaintiff’s counsel’s communication (or lack thereof) with opposing counsel regarding how search terms were generated and whether Plaintiff’s custodians had been consulted, which caused Defendant to file its motion to compel. Read More

Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants

United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV), 2014 WL 1379717 (N.D. Cal. Apr. 8, 2014)

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the “Database”) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions. Read More

Proposed Rule 37(e) Draft Committee Note Now Available

As previously discussed on this blog, proposed amendments to the Federal Rules of Civil Procedure were recently approved by the Advisory Committee on Civil Rules for submission to the Committee on Rules of Practice and Procedure (the “Standing Committee”).  At the time of approval, the Committee Note for Proposed Rule 37(e) remained “under construction.”  The proposed note has now been drafted, however, and was published in the Agenda Book for the Standing Committee’s May meeting, to be held in Washington, D.C. on May 29-30.

A copy of the Agenda Book is available here.

State Bar of California Issues Interim Opinion on Attorneys’ Ethical Duties in the “Handling of Discovery of [ESI]” – Public Comment Invited

The State Bar of California Standing Committee on Professional Responsibility and Conduct has issued Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) for public comment.  By analyzing a hypothetical fact pattern, the interim opinion addresses the following question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” Public comment on the opinion is being accepted until June 24, 2014.  While this opinion will not directly affect practice outside of the State of California, it nonetheless may provide all attorneys with valuable insight into the duties of counsel in electronic discovery.  [Please Note: California has not adopted the Model Code of Professional Conduct.  Despite that, the opinion acknowledges that the authors “look[ed] to federal jurisprudence for guidance, as well as applicable Model Rules, and appl[ied] those principals [sic] based upon the California ethical rules and California’s existing discovery law outside the e-discovery setting.”] Read More

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