Waymo v. Uber, Hide-the-Ball Ethics and the Special Master Report of December 15, 2017

December 17, 2017

The biggest civil trial of the year was delayed by U.S. District Court Judge William Alsup due to e-discovery issues that arose at the last minute. This happened in a trade-secret case by Google’s self-driving car division, WAYMO, against Uber. Waymo LLC v. Uber Techs., Inc. (Waymo I), No. 17-cv-00939-WHA (JSC), (N.D. Cal. November 28, 2017). The trial was scheduled to begin in San Francisco on December 4, 2017 (it had already been delayed once by another discovery dispute). The trial was delayed at Waymo’s request to give it time to investigate a previously undisclosed, inflammatory letter by an attorney for Richard Jacobs. Judge Alsup had just been told of the letter by the United States attorney’s office in Northern California. Judge Alsup immediately shared the letter with Waymo’s attorneys and Uber’s attorneys.

At the November 28, 2017, hearing Judge Alsup reportedly accused Uber’s lawyers of withholding this evidence, forcing him to delay the trial until Waymo’s lawyers could gather more information about the contents of the letter. NYT (11/28/17). The NY Times reported Judge Alsup as stating:

I can no longer trust the words of the lawyers for Uber in this case … You should have come clean with this long ago … If even half of what is in that letter is true, it would be an injustice for Waymo to go to trial.

NYT (11/28/17).

Judge Alsup was also reported to have said to Uber’s lawyers in the open court hearing of November 28, 2017:

You’re just making the impression that this is a total coverup … Any company that would set up such a surreptitious system is just as suspicious as can be.

CNN Tech (11/28/17).

Judge Alsup was upset by both the cover-up of the Jacobs letter and by the contents of the letter. The letter essentially alleged a wide-spread criminal conspiracy to hide and destroy evidence in all litigation, not just the Waymo case, by various means, including use of: (1) specialized communication tools that encrypt and self-destruct ephemeral communications, such as instant messages; (2) personal electronic devices and accounts not traceable to the company; and, (3) fake attorney-client privilege claims. Judge Alsup reportedly opened the hearing on the request for continuance by admonishing attorneys that counsel in future cases can be “found in malpractice” if they do not turn over evidence from such specialized tools. Fortune (12/2/17). That is a fair warning to us all. For instance, do any of your key custodians use specialized self-destruct communications tools like Wickr or Telegram?

Qualcomm Case All Over Again?

The alleged hide-the-email conduct here looks like it might be a high-tech version of the infamous Qualcomm case in San Diego. Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B(BLM) Doc. 593 (S.D. Cal. Aug. 6, 2007); Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (Plaintiff Qualcomm intentionally withheld from production several thousand important emails, a fact not revealed until cross-examination at trial of one honest witness).

The same rules of professional conduct are, or may be, involved in both Qualcomm and Waymo (citing to ABA model rules).

RULE 3.3 CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . .
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

Although, as we will see, it looks so far as if Uber and its in-house attorneys are the ones who knew about the withheld documents and destruction scheme, and not Uber’s actual counsel of record. It all gets a little fuzzy to me with all of the many law firms involved, but so far the actual counsel of record for Uber claim to have been as surprised by the letter as Waymo’s attorneys, even though the letter was directed to Uber’s in-house legal counsel.

Sarbanes-Oxley Violations?

In addition to possible ethics violations in Waymo v. Uber, a contention was made by the attorneys for Uber consultant, Richard Jacobs, that Uber was hiding evidence in violation of the Sarbanes-Oxley Act of 2002, Pub. L. 107-204, § 802, 116 Stat. 745, 800 (2002), which states in relevant part:

whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

18 U.S.C. § 1519. The Sarbanes-Oxley applies to private companies and has a broad reach not limited to litigation that has been filed, much less formal discovery requests. Section 1519 “covers conduct intended to impede any federal investigation or proceeding including one not even on the verge of commencement. Yates v. United States, – U.S. –, 135 S.Ct. 1074, 1087 (2015).

The Astonishing “Richard Jacobs Letter” by Clayton Halunen

The alleged ethical and legal violations in Waymo LLC v. Uber Techs., Inc. are based upon Uber’s failure to produce a “smoking gun” type of letter (email) and the contents of that letter. Although the letter is referred to as the Jacobs letter, it was actually written by Clayton D. Halunen of Halunen Law (shown right), an attorney for Richard Jacobs, a former Uber employee and current Uber consultant. Although this 37-page letter dated May 5, 2017 was not written by Richard Jacobs, it purports to represent how Jacobs would testify to support employment claims he was making against Uber. It was provided to Uber’s in-house employment counsel, Angella Padilla, in lieu of an interview of Jacobs that she was seeking.

A redacted copy of the letter dated May 5, 2017, has been released to the public and is very interesting for many reasons. I did not add the yellow highlighting seen in this letter and am unsure who did.

In fairness to Uber I point out that the letter states on its face in all caps that it is a RULE 408 CONFIDENTIAL COMMUNICATION FOR SETTLEMENT PURPOSES ONLY VIA EMAIL AND U.S. MAIL, a fact that does not appear to have been argued as a grounds for Uber not producing the letter to Waymo in Waymo v. Uber. That may be because Rule 408, FRCP, states that although such settlement communications are not admissible to “prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction” they are admissible “for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Also, Rule 408 pertains to admissibility, not discoverability, and Rule 26(b)(1) still says that “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

The letter claims that Richard Jacobs has a background in military intelligence, essentially a spy, although those portions of the letter were heavily redacted. I tend to believe this for several reasons, including the fact that I could not find a photograph of Jacobs anywhere. That is very rare. The letter goes on to describe the “unlawful activities within Uber’ s ThreatOps division.” Jacobs Letter at pg. 3. The illegal activities included fraud, theft, hacking, espionage and “knowing violations” of Sarbanes-Oxley by:

Uber’ s efforts to evade current and future discovery requests, court orders, and government investigations in violation of state and federal law as well as ethical rules governing the legal profession. Clark devised training and provided advice intended to impede, obstruct, or influence the investigation of several ongoing lawsuits against Uber and in relation to or contemplation of further matters within the jurisdiction of the United States.  …

Jacobs then became aware that Uber, primarily through Clark and Henley, had implemented a sophisticated strategy to destroy, conceal, cover up, and falsify records or documents with the intent to impede or obstruct government investigations as well as discovery obligations in pending and future litigation. Besides violating 18 U.S.C. § 15 19, this conduct constitutes an ethical violation.

Pages 5, 6 of Jacobs Letter. The practices included the alleged mandatory use of a program called WickrMe, that “programs messages to self-destruct in a matter of seconds to no longer than six days. Consequently, Uber employees cannot be compelled to produce records of their chat conversations because no record is retained.” Letter pg. 6.

Remember, Judge Alsup reportedly began the trail continuance hearing of November 28, 2017, by admonishing attorneys that in future cases they could be “found in malpractice” if they do not turn over evidence from such specialized communications tools. Fortune (12/2/17). There are a number of other secure messaging apps in adddition to Wickr that have encryption and self destruct features. A few I have found are:

There are also services on the web that will send self-destructing messages for you, such as PrivNote. This is a rapidly changing area so do your own due diligence.

Uber CEO Dara Khosrowshahi reacted to the November 29, 2017 hearing and Judge Alsup’s comments by tweeting on November 29, 2017 that Uber employees did, but no longer, use Wickr and another program like it, Telegram.

True that Wickr, Telegram were used often at Uber when I came in. As of Sept 27th I directed my teams NOT to use such Apps when discussing Uber-related business.

This seems like a good move to me on the part of Uber’s new CEO, a smart move. It is also an ethical move in a sometimes ethically challenged Silicon Valley culture. The culture is way too filled with selfish Ayn Rand devotees for my taste. I hope this leads to large scale housekeeping by Khosrowshahi. Matt Kallman, a spokesman for Uber, said after the public release of the letter:

While we haven’t substantiated all the claims in this letter — and, importantly, any related to Waymo — our new leadership has made clear that going forward we will compete honestly and fairly, on the strength of our ideas and technology.

NYT (12/15/17). You know the old saying about Fool me once …

Back to the Jacobs letter, it also alleges at pgs. 6-9 the improper use of fake attorney-client privilege to hide evidence:

Further, Clark and Henley directly instructed Jacobs to conceal documents in violation of Sarbanes-Oxley by attempting to “shroud” them with attorney-client privilege or work product protections. Clark taught the ThreatOps team that if they marked communications as “draft,” asked for a legal opinion at the beginning of an email, and simply wrote “attorney-client privilege” on documents, they would be immune from discovery.

The letter also alleges the intentional use of personal computers and accounts to conduct Uber business that they wanted to hide from disclosure. Letter pgs. 7-8.

The letter at pages 9-26 then details facts purporting to show illegal intelligence gathering activities by Uber on a global scale, violating multiple state and federal laws, including:

  • Economic Espionage Act
  • Uniform Trade Secret Act
  • California Uniform Trade Secrets Act
  • Racketeer Influenced and Corrupt Organizations Act (RICO)
  • Wire Fraud law at 18 U.S.C § 1343, and California Penal Code § 528.5
  • Wiretap Act at 18 U .S.C. § 25 10 et seq.
  • Computer Fraud and Abuse Act (CFAA)
  • Foreign Corrupt Practices Act (FCPA)

Special Master John L. Cooper

Judge Alsop referred the discovery issues raised by Uber’s non-disclosure of the “Jacobs Letter” to the Special Master handling many of the discovery disputes in this case, John L. Cooper of Farella Braun + Martel LLP. The Special Master Report with Cooper’s recommendations concerning the issues raised by the late disclosure of the letter is dated December 15, 2017. Cooper’s report is a public record that can be found here. This is  his excellent introduction of the dispute found at pages 1-2 of his report.

The trial of this trade secrets case was continued for a second time after the belated discovery of inflammatory communications by a former Uber employee came to light outside the normal discovery process. On April 14, 2017, Richard Jacobs sent a resignation e-mail to Uber’s then-CEO and then-general counsel, among others, accusing Uber of having a dedicated division with a “mission” to “steal trade secrets in a series of code-named campaigns” and engaging in other allegedly wrongful or inappropriate conduct. A few weeks later, on May 5, 2017, Mr. Jacobs’ lawyer, Clayton Halunen, sent a letter to Angela Padilla, Uber’s Vice President and Deputy General Counsel for Litigation and Employment. That 37-page letter expanded in some  detail on Mr. Jacobs’ e-mailed accusations regarding clandestine and concerted efforts to steal competitors’ trade secrets, including those belonging to Waymo. It also addressed allegations touching on Anthony Levandowski’s alleged downloading of Waymo trade secrets. The Jacobs Letter laid out what his lawyer described as a set of hardware and software programs, and usage protocols that would help Uber to allegedly carry out its thefts and other corporate espionage in secret and with minimized risk of evidence remaining on Uber servers or devices. By mid-August Mr. Jacobs and Uber settled their disputes and executed a written settlement agreement on August 14-15,2017.

Despite extensive discovery and multiple Court orders to produce an extensive amount of information related to the accusations in the Jacobs Materials, Waymo did not learn of their existence until after November 22, when the Court notified the parties that a federal prosecutor wrote a letter to this Court disclosing the gist of the Jacobs allegations.

The Special Master’s report then goes on to analyze whether Uber was obligated to produce the Jacobs Materials in response to any of the Court’s prior orders or Waymo’s discovery requests. In short, Master Cooper concluded that they were not directly covered by any of the prior court orders, but the Jacobs Letter was responsive to certain discovery requests propounded by Waymo, and Uber was obligated to produce it in response to those requests.

Special Master Cooper goes on to describe at page 7 of his report the Jacobs letter by Halunen. To state the obvious, this is clearly a “hot” document with implications that go well beyond this particular case.

That 37-page letter set forth multiple allegations relating to alleged efforts by Uber individuals and divisions. Among other things, the letter alleges that Uber planned to use certain hardware devices and software to conceal the creation and destruction of corporate records that, as a result, “would never be subject to legal discovery.” See ECF No. 2307-2 at 7. These activities, Mr. Jacobs’ lawyer asserted, “implicate ongoing discovery disputes, such as those in Uber’s litigation with Waymo.” Id. at 9. He continued:

Specifically, Jacobs recalls that Jake Nocon, Nick Gicinto, and Ed Russo went to Pittsburgh, Pennsylvania to educate Uber’s Autonomous Vehicle Group on using the above practices with the specific intent of preventing Uber’s unlawful schemes from seeing the light of day.

Jacobs’ observations cast doubt on Uber’s representation in court proceedings that no documents evidencing wrongdoing can be found on Uber’s systems and that other communications are actually shielded by the attorney-client privilege. Aarian Marshall, Judge in Waymo Dispute Lets Uber’s Self-driving Program Live—for Now, wired.com (May 3, 2017 at 8:47p.m.) (“Lawyers for Waymo also said Uber had blocked the release of 3,500 documents related to the acquisition of Otto on the grounds that they contain privileged information …. Waymo also can’t quite pin down whether Uber employees saw the stolen documents or if those documents moved anywhere beyond the computer Levandowski allegedly used to steal them. (Uber lawyers say extensive searches of their company’s system for anything connected to the secrets comes up nil.)”), available at (citation omitted).

Id. at 9-10.

Uber Attorney Angela Padilla

Angella Padilla was Uber’s Vice President and Deputy General Counsel for Litigation and Employment. She testified on these issues. Here is Special Master Cooper’s summary at pages 8-9 of his report:

Ms. Padilla testified in this Court that she read the letter “in brief’ and turned it over to other Uber attorneys, including Ms. Yoo, to begin an internal investigation. Nov. 29, 2017 Hr’g Tr. at 15:17-24. The letter also made its way to two separate committees of Uber’s Board of Directors, including the committee that was or is overseeing special litigation, including this case and the Jacobs matter. Id. at 20:10-13; 26:23-25. On June 27, Uber disclosed the allegations in the Jacobs Letter to the U.S. Attorney for the Northern District of California. Id. at 27:20-14. It disclosed the Jacobs Letter itself on or around September 12 to the same U.S. Attorney’s Office, to another U.S. Attorney, in the Southern District of New York, and to the U.S. Department of Justice in Washington. Id. at 28:4-10. Ms. Padilla testified that Uber made these disclosures to multiple prosecutors “to take the air out of [Jacobs’] extortionist balloon.” Id. at 28:18-19. Nearly one month before that distribution of the letter to federal prosecutors, on August 14, Uber settled with Mr. Jacobs—the terms of which included $4.5 million in compensation to Jacobs and $3 million to his lawyers. See id. at 62:6-63-12.

I have to pause here for a minute because the settlement amount takes my breath away. Not only the payment of $4.5 Million to Richard Jacobs who had a salary of $130,000 per year, but also the additional payment of $3.0 million dollars to his lawyers. That’s an incredible sum for writing a couple of letters, although I am sure they would claim to have put much more into their representation than meets the eye.

Other Attorneys for Uber Involved

Back to Special Master Cooper’s summary of the testimony of Uber attorney Padilla and other facts in the record about attorney knowledge of the “smoking gun” Jacobs letter (footnotes omitted):

Uber distributed the Jacobs E-Mail to two of Uber’s counsel of record at Morrison Foerster (“MoFo”) in this case. See Dec. 4, 2017 Hr’g Tr. at 46:1-47:5. Other MoFo attorneys directly involved in this case and related discovery issues e-mailed with other MoFo attorneys in late April about “Uber’s ediscovery systems regarding potential investigation into Jacobs resignation letter.” See Waymo Ex. 21.

None of the Uber outside counsel working on this case got a copy of the Jacobs Letter. Neither did the two Uber in-house lawyers who were or are handling this case; Ms. Padilla testified that she did not send it to them. Nov. 29, 2017 Hr’g Tr. at 47:8-16. By late June, some attorneys from Boies Schiller and Flexner, also counsel in this matter for Uber, had discussions with other outside counsel and Ms. Padilla about issues arising from the internal investigation triggered by the Jacobs Materials. See Waymo Ex. 20, Entries 22-22(h).

So now you know the names of the attorneys involved, and not involved, according to Special Master Cooper at page 9 of his report. Apparently none of the actual counsel of record knew about it. I would have to assume, and I think the court will too, that this was intentional. It was so clever as to be obvious, or, as the British would say too clever by half.

U.S. Attorney Notifies Judge Alsup of the Jacobs Letter

To complete the procedural background, here is what happened next leading to the referral to the Special Master. Note that a U.S. Attorney taking action like this to notify a District Court Judge of a piece of evidence is extraordinary, especially to do so just before a trial. Judge Alsop said that he had never had such a thing happen in his courtroom. The U.S. Attorney for the Northern District of California is Brian Stretch. Obviously he was concerned about the fairness of Uber’s actions. In my opinion this was a good call by Stretch.

On November 22, 2017, the U.S. Attorney for the Northern District of California notified this Court of the Jacobs allegations and specifically referenced the account Jacobs put in his letter about the efforts to keep the Ottomotto acquisition secret. See ECF No. 2383. The Court on the same day issued an order disclosing receipt of the letter from the U.S. Attorney and asked the parties to inform the Court about the extent of any prior disclosure of the Jacobs allegations. See ECF Nos. 2260-2261. After continuing the trial date in light of the parties’ responses to that query, the Court on December 4, 2017, ordered the Special Master “to determine whether and to what extent, including the history of this action and both sides’ past conduct, defendants were required to earlier produce the Jacobs letter, resignation email, or settlement agreement, or required to provide any information in those documents in response to interrogatories, Court orders, or other agreements among counsel.” ECF No. 2334, 2341.

Special Master report at pgs. 9-10.

Special Master Cooper’s Recommended Ruling

Master Cooper found that the Richard Jacobs letter was responsive to two of Waymos’ requests to produce: RFP 29 and RFP 73. He rejected Uber’s argument that they were not responsive to any request, an argument that must have been difficult to make concerning a document this hot. They tried to make the argument seem more reasonable by saying that even if the letter was “generally relevant,” it was not responsive. Then they cite to cases standing for the proposition that you have no duty to produce relevant documents that you are not going to rely on, namely documents adverse to your position, unless they are specifically requested. Here is a quote of the conclusion of that argument from page 16 of Uber’s Response to Waymo’s Submission to Special Master Cooper Re the Jacobs Documents.

Congress has specified in Rule 26(a)(ii) what documents must be unilaterally produced, and they are only those that a party “may use to support its claims or defenses.” Thus, a party cannot use a document against an adversary at trial that the party failed to disclose. However, Rule 26 very pointedly does not require the production of any documents other than those that a party plans to use “to support” its claims. Obviously, Uber is not seeking to use any of the documents at issue to support its claims. If Waymo believes that this rule should be changed, that is an issue they need to address with Congress, not with the Court.

Master Cooper did not address that argument because he found the documents were in fact both relevant and directly responsive to two of Waymo’s requests for production.

Uber’s attorney also made what I consider a novel argument that even if the Jacobs letter was found to be responsive, they still did have to produce it because, get this – it did not include any of the keywords that they agreed to use to search for documents in those categories. Incredible. What difference does that make, if they knew about the document anyway? Their client, Uber, specifically including in-house counsel, Ms. Padilla, clearly knew about it. The letter was to her. Are they suggesting that Uber did not know about the letter because some of their outside counsel did not know about it? Special Master Cooper must have had the same reaction as he disposed of this argument in short order at page 17 of his report:

Uber argues, that in some scenarios, reliance on search terms is enough to satisfy a party’s obligation to find responsive documents. See, e.g., T.D.P. v. City of Oakland, No, 16-cv-04132-LB, 2017 WL 3026925, at *5 (N.D. Cal. July 17, 2017) (finding certain search terms adequate for needs of case). But I find there are two main reasons why an exclusive focus on the use of search terms is inappropriate for determining whether the Jacobs Letter should have been produced in response to RFP 29 and RFP 73.

First, the parties never reached an agreement to limit their obligation to searching for documents to only those documents that hit on agreed-upon search terms. See Waymo Ex. 5 (Uber counsel telling Waymo during search-term negotiations that “Waymo has an obligation to conduct a reasonable search for responsive documents separate and apart from any search term negotiations”). (Emphasis added)

Second, Uber needed no such help in finding the Jacobs Materials. They were not stowed away in a large volume of data on some server. They were not stashed in some low-level employee’s files. Parties agree to use search terms and to look into the records of the most likely relevant custodians to help manage the often unwieldy process of searching through massive amounts of data. These methods are particularly called for when a party, instead of merely having to look for a needle in a haystack, faces the prospect of having to look for lots of needles in lots of haystacks. This needle was in Uber’s hands the whole time.

I would add that this needle was stuck deep into their hands, such that they were bleeding profusely. Maybe the outside attorneys did not see it, but Uber sure did and they had a duty to advise their attorneys. Uber’s attorneys would have been better off saving their powder for attacking the accuracy of the contents of the Jacobs letter and talking about the fast pace of discovery. They did that, but only as a short concluding argument, almost an afterthought. See page 16-19 of Uber’s Response to Waymo’s Submission to Special Master Cooper Re the Jacobs Documents.

Here is another theoretical argument that Uber’s lawyers threw up and Cooper’s practical response at pages 17-18 of his report:

Uber argues that it cannot be that the mere possession and knowledge of a relevant document must trigger a duty to scrutinize it and see if it matches any discovery requests. It asked at the December 12, 2017, hearing before the Special Master: Should every client be forced to instruct every one of its employees to turn over every e-mail and document to satisfy its discovery obligations to produce relevant and responsive documents? Must every head of litigation for every company regularly confronted with discovery obligations search their files for responsive documents, notwithstanding any prior agreement with the requesting party to search for responsive documents by the use of search terms?

It is not easy, in the abstract, to determine where the line regarding the scope of discovery search should be drawn. But this is not a case involving mere possession of some document. The facts in this case suggest that Ms. Padilla knew of the Jacobs Letter at the time Uber had to respond to discovery requests calling for its production—it certainly was “reasonably accessible.” Mr. Jacobs’ correspondence alleged systemic, institutionalized, and criminal efforts by Uber to conceal evidence and steal trade secrets, and not just as a general matter but also specifically involving the evidence and trade secrets at issue in this case—maybe the largest and most significant lawsuit Uber has ever faced. Ms. Padilla, Uber’s vice president and deputy general counsel for litigation and employment received the Jacobs Materials around the same time that discovery in this case was picking up and around the same time that the Court partially granted Waymo’s requested provisional relief. Shortly after that, Uber told federal prosecutors about the Jacobs allegations and then later sent them a copy of the letter. It sent the materials to outside counsel, including lawyers at MoFo that Uber hired to investigate the allegations. Two separate Uber board committees got involved, including the committee overseeing this case. Uber paid Mr. Jacobs $4.5 million, and his lawyer $3 million, to settle his claims.

The Federal Rules obligate a party to produce known, relevant and reasonably accessible material that on its face is likely to be responsive to discovery requests. RFP 29 and RFP 73 were served on Uber on May 9, just a few days after Ms. Padilla received the Jacobs Letter on May 5. Uber was therefore obligated to conduct a reasonable inquiry into those requests (and all others it received) to see if it had documents responsive to those requests and produce non-privileged responsive documents.

Special Master John Cooper concluded by finding that the “Jacobs letter was responsive to Waymo’s Request for Production No. 29 and Request for Production No. 73, and Uber should have produced it to Waymo in response to those requests.” It was beyond the scope of his assignment as Special Master to determine the appropriate remedy. Uber will now probably challenge this report and Judge William Alsup will rule.

Like everyone else, I expect Judge Alsup will agree with Cooper’s report. The real question is what remedy will he provide to Waymo and what sanctions, if any, will Judge Alsuop impose.

Conclusion

At the hearing on the request for a trial delay on November 28, 2017, Judge William Alsop reportedly told Uber’s in-house attorney, Angella Padilla:

Maybe you’re in trouble … This document should have been produced … You wanted this case to go to trial so that they didn’t have the document, then it turns out the U.S. attorney did an unusual thing. Maybe the guy [Jacobs] is a disgruntled employee but that’s not your decision to make, that’s the jury’s.

The Recorder (November 29, 2017).

In response to Angella Padilla saying that Jacobs was just a “extortionist” and the allegations in his letter were untrue. Judge Alsup reportedly responded by saying:

Here’s the way it looks … You said it was a fantastic BS letter with no merit and yet you paid $4.5 million. To someone like me and people out there, mortals, that’s a lot of money, that’s a lot of money. And people don’t pay that kind of money for BS and you certainly don’t hire them as consultant if you think everything they’ve got to contribute is BS. On the surface it looks like you covered this up.

The Recorder (November 29, 2017).

Judge William Alsup is one of the finest judges on the federal bench today. He is a man of unquestioned integrity and intellectual acumen. He is a Harvard Law graduate, class of 1971, and former Law clerk for Justice William O. Douglas, Supreme Court of the United States, 1971-1972.  How Judge Alsup reacts to the facts in Waymo LLC v. Uber Techs., Inc. now that he has the report of Special Master Cooper will likely have a profound impact on e-discovery and legal ethics for years to come.

No matter what actions Judge Alsup takes next, the actions of Uber and its attorneys in this case will be discussed for many years to come. Did the attorneys’ non-disclosure violate Rule of Professional Conduct 3.3, Candor Toward the Tribunal? Did they violate Rule 3.4, Fairness to Opposing Party and Counsel? Also, what about Rule 26(g) Federal Rules of Civil Procedure? Other rules of ethics and procedure? Did Uber’s actions violate the Sarbanes-Oxley Act? Other laws? Was it fraud?

Finally, and these are critical questions, did Uber breach their duty to preserve evidence when they knew that litigation was reasonably likely? Did their attorneys do so if they knew of these practices? What sanctions are appropriate for destruction of evidence under Rule 37(e) and the Court’s inherent authority? Should an adverse inference be imposed? A default judgment?

The preservation related issues are big questions that I suspect Judge Alsup will now address. These issues and his rulings, and that of other judges who will likely face the same issues soon in other cases, will impact many corporations, not just Uber. The use of software such as Wickr and Telegram is apparently already wide-spread. In what circumstances and for what types of communications may the use of such technologies place a company (or individual) at risk for severe sanctions in later litigation? Personally, I oppose intentionally ephemeral devices, where all information self-destructs, but, at the same time, I strongly support the right of encryption and privacy. It is a question of balance between openness and truth on the one hand, and privacy and security on the other. How attorneys and judges respond to these competing challenges will impact the quality of justice and life in America for many years to come.

 


Analysis of Important New Case on Predictive Coding by a Rising New Judicial Star: “Winfield v. City of New York”

December 10, 2017

There is an important new predictive coding opinion in the SDNY by a new judge in town. Winfield, Stewart, Noel v. City of New York, Case no. 15-CV-05236, 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y., Nov. 27, 2017). The opinion is by United States Magistrate Judge Katharine H. Parker. I have carefully studied this opinion and it looks like we have a new sTar in the making in our world of e-discovery and predictive coding. With all of the recent and forthcoming retirements on the bench, this is very welcome news.

Katharine H. Parker became a judge in November 2016 and before that was a partner in Proskauer’s Labor and Employment Law practice. See her interesting, humorous farewell message to her firm in Above The Law that took the form of a mock order that, among other things, said: Don’t let me take myself too seriously after I become a judge. 

Judge Parker obviously brings with her to the bench not only wit and wisdom, but also experience and knowledge of e-discovery, including legal search. As soon as she was one the bench she issued standard orders that include a Joint Electronic Discovery Submission and [Proposed] Order. It has a good e-discovery checklist built-in, albeit less complete than the new one out of Miami that I have been writing about. Good New 33-Point e-Discovery Checklist From Miami (e-Discovery Team, October 1, 2017). Item Six of her Joint Electronic Discovery Submission and [Proposed] Order is entitled “Search and Review” and states:

The parties have discussed methodologies or protocols for the search and review of electronically stored information, as well as the disclosure of techniques to be used. Some of the approaches that may be considered include: the use and exchange of keyword search lists, “hit reports,” and/or responsiveness rates; concept search; machine learning, or other advanced analytical tools; limitations on the fields or file types to be searched; date restrictions; limitations on whether back-up, archival, legacy, or deleted electronically stored information will be searched; testing; sampling; etc. To the extent the parties have reached agreement as to search and review methods, provide details below:

Way to go Judge Parker! That is a very good checklist for a Rule 26(f) conference and Case Management Report to get lawyers talking about the key legal issue in e-discovery, legal search. I especially like the reference to many different (“multimodal”) types of search and the use of the technically correct term, “machine learning.”

Transparency and GIGO

Judge Parker’s Order in Winfield v. City of New York (15-CV-05236) resolved a discovery dispute, which, among other things, challenged the Defendant City’s predictive coding process, in other words, it’s machine learning search. That challenge involved issues of transparency and relevance. Experts on predictive coding were apparently involved (although it looks like they were not retained until fairly late in the dispute). At that point the issues became much more technical and sophisticated. The plaintiffs wanted to know more about the defendant’s machine learning process, and the defendant did not want to share that. Instead, defendant invoked the attorney work-product secrecy cloak and good old, and I mean old, Sedona Principle Six. Protecting the Fourteen Crown Jewels of the Sedona Conference in the Third Revision of its Principles (my article requesting that Principle Six be updated).

Judge Parker then went hands-on, as a good judge should, and required in camera submissions. Then, after she was fully informed, she rendered this decision. Textbook procedure for how to resolve complex e-discovery issues. Note especially that she did not need expert testimony, nor a mini-trial, nor extensive discovery about discovery, to render her decision. These are all things that many nay sayers on predictive coding all said would happen. Aside from the ill-fated expert testimony for days on end by Dave Lewis and Dan Regard in Kleen Products back in 2012, it hasn’t happened. Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al.Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012).

Of course, I am ready to testify at any time to explain my now open-source methodology, Predictive Coding 4.0. See Eg. TARcourse.com. Most good experts are. But, so far, there have been no challenges, nor any reason for disputes. After Da Silva Moore, where my firm represented the defendants, and the series of opinions on predictive coding by Judge Andrew Peck, and others, things have settled down. Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 183 (S.D.N.Y. 2012); Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016). Time has proven the pro-technology lawyers, myself included, were right. The cost savings realized by use of AI technology has not been robbed by the expense of expert litigation, as many predicted. Moreover, there have been very few challenges of any kind to predictive coding methodology since Da Silva Moore, which is why the instant case of Winfield v. City of New York is so interesting.

Plaintiffs’ challenge and demand for greater transparency in predictive coding in Winfield was based primarily on plaintiff’s contention that the defendant was too narrowly interpreting relevance, that it was miscoding relevant documents as irrelevant and not producing them. In other words, they had a disagreement on True Relevance. Plaintiffs argued that since defendant was miscoding documents, it must also have been incorrectly training documents in its machine learning. The logic is impeccable. If you prove one – misconception of relevance, then the other necessarily follows – incorrect training.

It is the oldest truism in computers, and remains a valid principle even in active machine learning, albeit mitigated somewhat by good software and good methods: GIGO – Garbage In, Garbage Out. The active machine learning is based on the input by the SME (“subject matter expert”). If the SME misdefines relevance, then so will the AI. It is, after all, just a creation of the SME, his or hers leveraged servant. Still, any good machine learning software can handle some bad input, it is a question of degree and methods. These are precisely the questions raised and answered, at least in a general way, in Winfield.

The artificial intelligence that your active machine training creates will only look for what you tell it to look for. It has no intelligence of its own. It is a type of specialized AI that starts out as a blank slate. It knows nothing. Someday our legal AI may know the law and know what is relevant, but we are not there yet. Right now it only knows that you tell it. If you tell it to look for garbage, that is what it will find. It can not hit a bullseye of relevance if you have trained it to find a different relevance target.

The problem here is that one person’s treasure is another trash. In other words, the lead counsel on both sides did not agree on the target, they did not agree on relevance. They did not even agree on Judge Parker’s rulings on relevance. This necessarily means they did not agree on the documents should be used in the training. I have written on this at great length in the TARcourse.com. See especially the Ninth Class: GIGO, QC, SME, Method, Software.

The SMEs in Winston Did Not Understand Judge Parker’s Rulings on Relevance

The first step in my open-sourced eight-step workflow is designed to address this issue, ESI Communications. Eleventh Class: Step One – ESI Communications. Some consider this the hardest step. The talk includes communications with opposing counsel on relevance, and communications with the judge where you cannot agree. Elsewhere I define an SME, the subject matter expert in charge of determining the target relevance, as the lawyer best able to predict the judge’s rulings on relevance. In litigation the ultimate SME is the judge. The relevance target is what she says it is. This is covered in Class Nine of the TAR Course where I explain:

If the attorney in charge (SME) does not understand the scope of discoverable information, does not understand probative value, then the odds of finding the documents important to a case are significantly diminished. You could look at a document with high probative value and not even know that it is relevant. This is exactly the concern of many requesting parties, that the responding party’s attorney will not understand relevance and discoverability the same way they do. That is why the first step in my recommended work flow is to Talk, which I also call Relevance Dialogues. . . .

The job of the SME is to know relevance. In the law that means you must know how the ultimate arbitrator of relevance will rule – the judge assigned to your case. They determine truth. An SME’s own personal opinion is important, but ultimately of secondary importance to that of the judge. For that reason a good SME will often vary on the side of over-expansive relevance because they know from history that is what the judge is likely to allow in this type of case.

Judges-Peck_Grimm_FacciolaThis is a key point. The judges, not the attorneys, ultimately decide on close relevance and related discoverability issues. The head trial attorney interfaces with the judge and opposing counsel, and should have the best handle on what is or is not relevant or discoverable. A good SME can predict the judge’s rulings and, even if not perfect, can gain the judicial guidance needed in an efficient manner.

In Winfield the SMEs on both sides got it wrong. Even though Judge Parker made several rulings on relevance, the attorneys did not properly interpret the rulings. In the case of defense counsel, the SME interpreted the relevance rulings too narrowly. For this reason their reviewers mismarked relevant documents as irrelevant and so did not properly train the system. Here is Judge Parker’s ruling on relevance, which sets the stage for her other rulings on predictive coding.

In sum, the City must expand its search for documents responsive to Plaintiffs’ document requests as it construed this Court’s prior ruling too narrowly. If the City finds additional documents in the DCP/Banks review population regarding the primary issues and defenses in this case responsive to Plaintiffs’ other document requests—such as documents concerning the Community Preference Policy and the City’s justification for the same, including the Policy’s role in overcoming community opposition—such documents should be produced, absent privilege or other objection for which the City has a good-faith basis to withhold the document. If, after review of the City’s production of responsive documents from the DCP/Banks review population, Plaintiffs believe that the City impermissibly withheld documents responsive to specific requests, Plaintiffs shall meet-and-confer with the City and thereafter may file a motion to compel.

Relevance is the threshold issue. As seen defense counsel did not get it right, did not properly construe Judge Parker’s rulings on the relevance, including such topics as the Community Preference Policy. For that reason, they also got the machine training wrong on that issue. The defense SME told the machine, and the human document reviewers, that, as to that issue at least, black was white, relevant was irrelevant. That is confusing to anyone, even a smart AI.

Of course, I have done that myself, many times. Any SME has. Perfection in relevance construction is nearly impossible in a complex case. What separates the good SMEs from the mediocre or bad ones is the number of errors made and the significance of those errors. As it turns out in Winfield, Judge Parker did not consider the errors made by the defendant’s SME to be that serious. That evaluation tempered her ruling and ultimately limited the remedies granted to plaintiffs.

Usually the AI points out obvious errors to you, the oops kind of errors, not systemic ones. If the software is good, it will still predict documents to be relevant if logic suggests they must be so in order to be consistent with other documents coded relevant. It will do so in spite of the fact you have already coded the documents as irrelevant. (If the software you are using does not do that, find other software!) If the mistake is systemic and widespread or across a whole class, it may not do so, but still, even then, the error is usually not hard to correct. You just change the coding on the disputed documents and retrain the system. Good software will usually adjust rankings easily, if you can find and correct all, or nearly all of the incorrectly coded ESI. One round of training should do it. No big deal. Mistake fixed. Again, if your software can not do that, then your software is no good, out of date. Get new software. See: WHY I LOVE PREDICTIVE CODING: Making Document Review Fun Again with Mr. EDR and Predictive Coding 4.0.

Procedural Background in Winfield

Here is Judge Parker’s summary of the parties convoluted discovery disputes.

Plaintiffs have sought wide-ranging discovery, which the City has resisted vigorously. This Court has issued various rulings consistent with Federal Rule of Civil Procedure 26(b)(1) to ensure that discovery is focused on information that is relevant and proportional to the needs of this case, considering “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). This included directing phased discovery and limiting some of Plaintiffs’ discovery demands.  . . .

Notice how Judge Parker, fresh out of private practice, well understands new Rule 26(b)(1) and proportional relevance. She also understands the need to phase discovery.

The history of the parties e-discovery dispute on document search and review is all too common. Both sides start off playing the Go Fish keyword guessing game, just like there were still in the nineties. Apparently they all slept through Judge Peck’s Wake Up call in Gross Construction. William A. Gross Constr. Assocs., Inc. v. Am. Mutual Mfrs. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009); Losey, R., Adventures in Electronic Discovery (West 2011); Child’s Game of ‘Go Fish’ is a Poor Model for e-Discovery Search; National Day Laborer Organizing Network v. US Immigration and Customs Enforcement Agency877 F.Supp.2d 87 (SDNY, 2012) (J. Scheindlin) (“As Judge Andrew Peck — one of this Court’s experts in e-discovery — recently put it: “In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of `Go Fish’ … keyword searches usually are not very effective.” FN 113“).

Here is Judge Parker’s charitable description of the legal search efforts of the attorneys in this case at that point.

Pursuant to the Court’s directives, the City began its document review process with HPD and the Mayor’s Office. As it pertained to ESI, the parties disagreed as to the search terms that would be applied to the electronic documents collected from these custodians. Ultimately, the City applied a set of search terms that was heavily negotiated by the parties, with some guidance from the Court, to the custodians from HPD and the Mayor’s Office. The City then began reviewing the electronic documents from these custodians.

Plaintiffs lodged numerous complaints about the pace of discovery and document review, which initially involved only manual linear review of documents. Accordingly, given the volume of documents collected, this Court directed the City to complete linear review as to certain custodians and begin using Technology Assisted Review (“TAR”) software (also commonly referred to as “predictive coding”) to hasten the identification, review, and production of documents responsive to Plaintiffs’ document requests.

Keyword negotiation and linear review! Can you believe it? No wonder the City had already reviewed “over 100,000 documents at a cost of over $350,000.” Yes. It pays to be computer illiterate and practice law like you were still in the nineties. I wonder if they used Summation? Judge Parker properly threw up her hands at this and cajoled counsel to jump into the Twenty-First Century TAR pits with the rest of us.

Her description is pretty good, although it still uses the old-fashioned seed-set term and does not take into consideration that machine training these days continues throughout the review as an iterated process (steps 4, 5 and 6 in the 8-step method of Predictive Coding 4.0). See the Tar Course,  Fourteenth Class: Steps Four, Five and Six – Iterative Machine Training. The particular flavor of continuous training that I include in my open source methodology is called Intelligently Spaced Training or IST. It is explained in the Tar Course: Sixth Class: 2nd Insight – Balanced Hybrid and Intelligently Spaced Training (IST).

TAR allows parties to prioritize and/or categorize documents for purposes of document review and has been shown to produce more accurate results than manual review. See Rio Tinto PLC v. Vale S.A., No. 14-cv-3042 (RMB) (AJP), 2015 WL 872294, at *3 (S.D.N.Y. Mar. 2, 2015); Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) (noting that linear manual review was too expensive when there were over three million emails to review and that computer-assisted review can save both parties significant time and money in document review and is at least as, if not more, accurate as manual review). For TAR to work properly, the producing party must prepare a training, or seed set, of responsive and non-responsive documents to train the computer system how to distinguish between them. For purposes of this review, the City trained its TAR system using documents that it had already reviewed during its linear review, as well as by completing several training rounds of additional documents that had not yet been reviewed. Once the computer system is trained, it segregates the potential review population into responsive and non-responsive documents and prioritizes them in terms of relevancy (based on similarity to documents in the seed set) so that trained document reviewers can focus on documents that are likely to be most relevant first among the documents classified as responsive. Best practices also dictate that the producing party validate the results of its trained TAR system using certain metrics, such as a recall rate that measures the effectiveness of the software in finding responsive documents.  . . .

Even with this good guidance from Judge Parker to go beyond mere keyword search and use active machine learning, aka TAR, counsel for both sides resisted. Instead, they spent most of their time doing what they know best, arguing about keywords. I do not think they had retained their outside experts yet. Defendant finally agreed to some stupid list, but said they would also use active machine learning – TAR – to only review the keyword hits with the highest ranking. Yes. Finally. Of course, the Plaintiff’s attorneys would not agree with that because they did not trust defendant’s ability to do TAR properly.

Requesting Parties Demand for Quality and Transparency

At this point, with experts now likely on board for both sides, the plaintiffs counsel finally got smart and started arguing about relevance and quality of process. Here is how Judge Parker explained it.

After further negotiation and a modest reduction in Plaintiffs’ number of search terms, the City agreed that it would accept all of Plaintiffs’ modified proposed terms, but that it would use its predictive coding system to reduce the DCP/Banks review population to a more manageable number of documents. Plaintiffs, in turn, have indicated that the City’s proposal is not acceptable because they are concerned about the reliability of the City’s predictive coding processes. Specifically, Plaintiffs contend that the City has over-designated documents as privileged and non-responsive, including by applying an impermissibly narrow view of responsiveness during its review process. As a result of this alleged practice, Plaintiffs assert that the City’s TAR software was improperly trained on what constitutes a responsive and nonresponsive document, leading to a predictive coding system that is unable to recognize documents that are truly responsive to the issues in this case.

Now we finally have a valid issue, one that goes beyond last-centuries keyword search arguments. Did the City properly train the system? Or did it train the algorithm to avoid certain types of relevant ESI, such as documents related to the Community Preference Policy? Did we have GIGO in play here or not? If so, how serious is this mistake to the overall discovery process? And what should be done now to correct the mistake? These are legitimate predictive coding quality issues. Here we see a new judge, one who has practiced this century and knows her way around e-discovery, succeed in elevating the dispute. Back to Judge Parker’s narrative.

In response to Plaintiffs’ concerns, this Court has issued several orders. It required the City to submit a letter for in camera review describing its predictive coding process and training for document reviewers. The City asserted that these materials are core work product, but nevertheless provided this information to the Court on September 8 and October 5, 2017.  . . .

After studying the material submitted by defense counsel, or rather, I would hope and expect, material submitted by defense counsel’s e-discovery experts (Maura Grossman perhaps?), Judge Parker was in a position to rule on both the relevance and transparency issues. Here is her description of the dispute at this point.

To increase transparency and confidence in the City’s document review, Plaintiffs have proposed that the Court direct the City to provide for review by Plaintiffs’ counsel random samples of each of the following (size and methodology to be negotiated by counsel and their e-discovery experts, or determined by the Court in the absence of agreement):

  • non-privileged documents collected from DCP and Banks that were subject to TAR that are above the predictive-coding ranking cut-off used by the City, but where the City ultimately determined that the documents were non-responsive;
  • non-privileged documents collected from DCP and Banks that were subject to TAR that are just below the predictive-coding ranking cut-off used by the City;
  • non-privileged documents collected from HPD and the Mayor’s Office that were subject to TAR that were above the predictive-coding cut-off, but that the City ultimately designated as non-responsive through its attorney review; and
  • non-privileged documents collected from HPD and the Mayor’s Office that were subject to TAR that were just below the predictive-coding cut-off used by the City.

Plaintiffs also seek:

  • information about the ranking system used (i.e., what cut-off was used, and how
    many documents were deemed responsive and unresponsive at each ranking);
  • all materials submitted by the City for the Court’s in camera review relating to
    predictive coding, other than materials that are in fact privileged, on an
    attorneys’ and experts’ eyes-only basis;
  • an order requiring the City to search for documents responsive to all of Plaintiffs’
    document requests other than those specifically limited or stricken by the Court
    at prior court conferences (or those that had been withdrawn by Plaintiffs);

This is a pretty sophisticated proposal by plaintiffs’ counsel. I have to assume they finally have, or are finally following, the advice of outside e-discovery experts, probably a vendor advising them on predictive coding. (Anybody in a position to share with me who that was? I assume it is probably a matter of public record in the court file somewhere.)

Judge Parker Rules

Judge Katharine Parker begins her ruling in traditional fashion by reciting the governing law. Here is the key part.

Collection, review, and production of ESI presents special challenges and requires “cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009). Courts have recognized that keyword searches used to search for and collect documents for review must be carefully crafted. Id. Here, Plaintiffs have provided 665 additional search terms to be applied to the DCP/Banks review population. The City has stated that the supplemental search would require review of 90,000 additional documents at a cost of approximately $248,000. Nevertheless, it has stated that it is willing to use all of Plaintiffs’ proposed search terms and use TAR, leveraging the training already done on the software. (Doc. No. 203.) Plaintiffs object to the City’s proposal because they believe that the City’s TAR processes are flawed insofar as it results in the over-designation of documents as nonresponsive. . . .

Judge Parker then rules against the defendant, at least in part, on the relevance issue. They had been construing her prior rulings on relevance too narrowly. I have previously quoted this part of her order a little out of sequence. Recall that she held that defense counsel had construed this Court’s prior ruling too narrowly . . . by, for instance, excluding documents concerning the Community Preference Policy and the City’s justification for the policy.

That means appropriate training documents had not been used, at least as to certain issues. Plaintiff’s were right to challenge the machine training. Here is how Judge Parker then rules on the key issue of process.

C. Plaintiffs’ Challenges To The City’s TAR Processes and Responsiveness Designations

Finally, Plaintiffs object to the City’s continued use of its TAR system. Plaintiffs contend that the system is improperly trained because the City’s human document reviewers overdesignated documents as non-responsive during both the linear review and during the TAR training stages. As a result, Plaintiffs claim, the TAR software is unable to recognize and properly categorize responsive documents.

As I have previously stated, good predictive coding software today corrects and mitigates against such errors. Now that the errors have been pointed out by Judge Parker, it should not be too hard for the defense to retrain the TAR software so that it is able to recognize and properly categorize responsive documents. Plaintiff’s claim is an exaggeration, assuming, as we must, that defendant’s predictive coding experts are competent.

Judge Parker goes on with a very long paragraph reciting the law to date on process, and duty of the responding party to make reasonable, good faith efforts.

As courts have noted, the producing party is in the best position to “evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Hyles v. New York City, No. 10-cv-3119 (AT) (AJP), 2016 WL 4077114, at *3 (S.D.N.Y. Aug. 1, 2016) (citing Principle 6 of the Sedona Conference). Traditionally, courts have not micro-managed parties’ internal review processes for a number of reasons. First, attorneys, as officers of the court, are expected to comply with Rules 26 and 34 in connection with their search, collection, review and production of documents, including ESI. Second, internal attorney ESI work processes may reveal work product, litigation tactics, and trial strategy. See generally Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139, 142-43 (D.D.C. 2007) (holding that a compilation of documents culled from a larger protection is protectable as attorney work product). Third, as noted above, the producing party is better equipped than the court to identify and utilize the best process for producing their own ESI consistent with their obligations under the Federal Rules of Civil Procedure. See Hyles, 2016 WL 4077114, at *3 (citing Principle 6 of the Sedona Conference). Fourth, perfection in ESI discovery is not required; rather, a producing party must take reasonable steps to identify and produce relevant documents. See HM Elecs., Inc. v. R.F. Techs., Inc., No. 12-cv-2884 (BAS) (MDD), 2015 WL 471498, at *12 (S.D. Cal. Aug. 7, 2015), vacated in part on other grounds, 171 F. Supp. 3d 1020 (S.D. Cal. 2016); Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 461 (S.D.N.Y. 2010); see also Advisory Committee Notes, 2015 Amendments to Fed. R. Civ. P. 37(e). However, “‘[p]arties cannot be permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents.’” HM Elecs., Inc., 2015 WL 4714908 at *12 (quoting Bratka v. Anheuser-Busch Co., Inc., 164 F.R.D. 448, 463 (S.D. Ohio 1995)). “Litigation is not a game. It is the time-honored method of seeking the truth, finding the truth, and doing justice.” Id. (citation and quotations omitted). In keeping with these principles, this Court is of the view that there is nothing so exceptional about ESI production that should cause courts to insert themselves as super-managers of the parties’ internal review processes, including training of TAR software, or to permit discovery about such process, in the
absence of evidence of good cause such as a showing of gross negligence in the review and production process, the failure to produce relevant specific documents known to exist or that are likely to exist, or other malfeasance.

Judge Parker then address the transparency issue.

Courts are split as to the degree of transparency required by the producing party as to its predictive coding process. See Rio Tinto PLC., 306 F.R.D. at 128 (citing John M. Facciola & Philip J. Favro, Safeguarding the Seed Set: Why Seed Set Documents May Be Entitled To Work Product Protection, 8 Fed. Cts. L. Rev. 1 (2015)). In some cases, parties have agreed to—or courts have ordered—transparency into the TAR or predictive coding processes. See, e.g., id. at 129 (“[t]he Court, however, need not rule on the need for seed set transparency in this case, because the parties agreed to a protocol that discloses all non-privileged documents in the control sets.”); In re Actos Prods. Liab. Litig., No. 6:11-md-299, 2012 WL 7861249, at *4-5 (W.D. La. July 27, 2012) (the parties’ protocol had “experts” from each side simultaneously reviewing and coding the seed set); Bridgestone Ams., Inc. v. Int’l Bus. Machs. Corp., No. 3:13-cv-1196, 2014 WL 4923014, at *1 (M.D. Tenn. July 22, 2014) (party offered to provide responsive and non-responsive seed set documents—an offer endorsed by the court). In other cases, courts have not required production of seed set documents. See In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., No. 3:12-md-2391, 2013 WL 6405156, at *1-2 (N.D. Ind. Aug. 21, 2013) (refusing to direct party to produce seed set, but encouraging transparency); Aurora Coop. Elev. Co. v. Aventine Renewable Energy-Aurora W., LLC, No. 4:12-cv-230, 2015 WL 10550240, at *2 (D. Neb. Jan. 6, 2015) (encouraging the parties to work cooperatively in developing a TAR process, but observing that the Federal Rules of Civil Procedure do not require a party to disclose information that is not relevant to any party’s claim or defense).

While it is true that Plaintiffs here do not have clear insight into the City’s predictive coding process and training, this Court has required the City to provide in camera submissions addressing these subjects. These in camera submissions reveal that the City appropriately trained and utilized its TAR system. The City’s seed set included over 7,200 documents that were reviewed by the City’s document review team and marked as responsive or nonresponsive in order to train the system. Its seed set included randomly selected documents, as well as pre-coded example documents such as the pleadings, Plaintiffs’ document requests, and other relevant, privileged and non-privileged documents. At the conclusion of the TAR training phase, which include five full training rounds, the City conducted a validation process.

Judge Parker’s hands-on review of the process provides reasonable safeguards to the requesting party, here the plaintiffs. This represents a good working compromise on the transparency issue. Disclosure was made to the judge, but not the opposing party of counsel. The producing parties confidentiality rights were protected. The disclosure made Judge Parker comfortable that the errors made in the training to date by the improper relevance classification was not too serious and could be corrected. As she put it, “these in camera submissions reveal that the City appropriately trained and utilized its TAR system” including a “validation process.”

Judge Parker goes on to describe other disclosures made to her by the responding party, here the defendant City, that  convinced her that their efforts were very reasonable. You would be well advised to incorporate these same quality control procedures into all of your document review projects.

Moreover, the City provided detailed training to its document review team as to the issues in the case. The document review team also was provided with all of Plaintiffs’ document requests to use in connection with their review and designation of documents as responsive and non-responsive. In sum, the City’s training and review processes and protocols present no basis for finding that the City engaged in gross negligence in connection with its ESI discovery – far from it.

Judge Parker then addresses head-on the important relevance issue, GIGO. Based on what she saw, she did not think the responding party’s mistakes were that serious. The number of misclassified documents used in the training was relatively small.

Plaintiffs’ objections to the City’s use of TAR largely stems from their beliefs that the City
has over-designated documents as non-responsive. In support of this claim, Plaintiffs rely on a few documents that were inadvertently produced by the City that they contend are responsive to their discovery requests and should have been produced. Plaintiffs also point to the fact that the City has flip-flopped on its designation of documents when challenged. For example, the City has admitted that the two “slip sheeted” documents initially marked as non-responsive are in fact “arguably responsive.”7 Although the City has not provided an explanation for the additional three “slip-sheeted” documents that Plaintiffs have identified, these documents also appear to be at least “arguably responsive” to Plaintiffs’ discovery requests.

Additionally, Plaintiffs emphasize that the City’s document review has resulted in many
documents being categorized as responsive, but ultimately withheld on privilege grounds. As mentioned above, the City has produced a sample of 80 of these supposedly privileged
documents for in camera review. And, as noted above, the City has withdrawn its claim of
deliberative process privilege as to 59 of the documents initially designated as privileged (out of the 80-document sample set), but also has changed its responsiveness designation to nonresponsive and, as a result, has withheld these 15 documents as non-responsive to Plaintiffs’ document requests (the “NR Documents”). This Court has reviewed these 15 NR Documents in camera and determined that nearly all of them are responsive to Plaintiffs’ document requests to some degree, though most are only of marginal relevance.

In sum, the City incorrectly categorized at least five “slip-sheeted” documents as nonresponsive during the electronic review process and correctly categorized 15 other documents as responsive during the electronic review process but later labeled them as non-responsive. However, this Court does not find the labeling of these 20 documents, only 5 of which were “incorrectly” categorized as non-responsive during the initial ESI review—out of the 100,000 documents that have been reviewed thus far in this case—sufficient to question the accuracy and reliability of the City’s TAR process as a whole. In any ESI review, “the Federal Rules of Civil Procedure do not require perfection.” Moore, 287 F.R.D. at 191. Instead, the proper inquiry is whether the “search results are reasonable and proportional.” Hyles, 2016 WL 4077114, at *3 (citing Fed. R. Civ. P 26(g)(1)(B)).

Here, neither this Court nor Plaintiffs have identified anything in the TAR process itself that is inherently defective; rather, Plaintiffs’ objections are premised upon human error in categorizing a small subset of documents as responsive or non-responsive. The City in this case has produced over 12,500 documents that were all designated as responsive. Moreover, it seems unlikely that the misdesignations identified by Plaintiffs would have affected the City’s TAR processes in any meaningful way, given that the seed set was comprised of over 7,000 documents. The City’s validation process, which was described to this Court in the City’s in camera submission, further supports this conclusion.

Still, as described before, the City’s SME did make a mistake in relevance and thus a mistake in machine training. For that reason a limited remedy was provided to the requesting party plaintiffs. Limited disclosure of non-privileged sample documents was ordered to plaintiff’s attorneys and experts’ eyes-only basis.

While the Court disagrees with Plaintiffs’ assertions that the TAR process as a whole is
defective, it nevertheless finds that Plaintiffs have presented sufficient evidence to justify their request for sample sets of non-privileged documents from the documents pulled from the 50 custodians. In particular, this Court agrees that the sample sets will increase transparency, a request that is not unreasonable in light of the volume of documents collected from the custodians, the low responsiveness rate of documents pulled for review by the TAR software, and the examples that Plaintiffs have presented, which suggest there may have been some human error in categorization that may have led to gaps in the City’s production.

Thus, this Court will grant Plaintiffs’ request in part as follows:

  • The City is directed to produce the five “slip-sheeted” documents and the 15 NR
    Documents within one week of the date of this order.
  • The City is directed to provide to Plaintiffs a sample of 300 non-privileged
    documents in total from the HPD custodians and the Mayor’s Office.8 These
    documents should be randomly pulled from the corpus of non-responsive
    documents. The City shall provide these documents to Plaintiffs’ counsel on an
    attorneys’ and experts’ eyes-only basis. The City shall be required to produce the
    300 non-privileged documents from the HPD custodians and the Mayor’s Office
    by December 22, 2017.
  • The City shall apply the Plaintiffs’ search terms to the DCP/Banks review
    population and shall leverage its existing TAR process to segregate the additional
    documents into responsive and non-responsive categories and begin producing
    any responsive documents, subject to its objections and this Court’s orders
    limiting Plaintiffs’ discovery requests. It then shall provide Plaintiffs with a
    random sample of 100 non-privileged, non-responsive documents in total from
    the DCP/Banks review population.9 These too shall be provided to Plaintiffs’
    counsel on an attorneys’ and experts’ eyes-only basis. The City shall be required
    to produce the 100 non-privileged documents from the DCP/Banks review
    population by January 12, 2018.
  • To the extent Plaintiffs contend that the sampling process described above
    suggests that there are documents within the HPD/Mayor’s Office or DCP/Banks
    review populations that are responsive and relevant, but have not been
    produced, they shall meet and confer with the City to determine whether
    additional training and review is necessary with the understanding that
    reasonableness and proportionality, not perfection and scorched-earth, must be
    their guiding principles. See Rio Tinto PLC, 306 F.R.D. at 129 (“[o]ne point must
    be stressed—it is inappropriate to hold TAR to a higher standard than keywords
    or manual review. Doing so discourages parties from using TAR for fear of
    spending more in motion practice than the savings from using TAR for review.”).

This seems to me to be a fair compromise. The requesting party had asked for even more disclosure, namely information on the predictive coding ranking system. It looks like their experts were asking for the probability cut-off metric, in other words, how far down in the ranking did the review extend. As you can see by the ruling below, the court denied this, but at the same time Judge Parker encouraged the City to share such information with Plaintiffs. Personally, I would do it. It is not a big deal. The rational cut-off point is typically 51% probable relevance, but again with a validation process, typically a random sample of the null-set. The null-set refers to the documents ranked below 51%, or whatever the cut-off point is, that will not be reviewed. I would not produce the documents produced in camera. That would defeat the whole in camera process. Trust the judge. She seems pretty terrific to me.

This Court denies Plaintiffs’ request for information about the ranking system used by Plaintiffs (i.e., what cut-off was used, and how many documents deemed responsive and unresponsive are at each ranking) and for all materials submitted by defendant in camera relating to predictive coding. Plaintiffs have failed to explain why information about the City’s ranking system is needed, particularly given that Plaintiffs’ request to sample non-responsive documents from the review populations is being granted. It is also unclear how this information is even potentially relevant to the claims and defenses in this litigation, as required under Federal Rule of Civil Procedure 26. However, in the interests of transparency and cooperation in the discovery process, the City is encouraged to share such information with Plaintiffs. With respect to the City’s in camera submissions, this Court views this information as being protected by the work product privilege and, accordingly, is not subject to disclosure.

Conclusion

Winfield v. City of New York (SDNY, Nov. 27, 2017) is a next generation predictive coding case that gets into the methodologies and quality controls of the active machine learning process. It assumes that of course you should do predictive coding and moves on to the practical issues of methods. Specifically, how to deal with relevance training errors, quality controls and transparency. You would be well advised to carefully study this opinion and cite to it often.

With the recent retirement of so many great e-discovery judges, including soon the predictive coding champion, Judge Andrew Peck, it is encouraging to see new judges like Katharine H. Parker come onto the scene. Electronic discovery and the sub-specialty of Legal Search need the continued encouragement and guidance of skilled judges. My congratulations to Judge Parker’s hands-on, proactive approach in Winfield and her good grasp of the sticky subject of TAR. Yes, it is fair to say that with Winfield a star is born. Long may she shine.

 


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