Another Judge is Asked to Settle a Keyword Squabble and He Hesitates To Go Where Angels Fear To Tread: Only Tells the Parties What Keywords NOT To Use

July 15, 2018

In this blog we discuss yet another case where the parties are bickering over keywords and the judge was asked to intervene. Webastro Thermo & Comfort v. BesTop, Inc., 2018 WL 3198544, No.16-13456 (E.D. Mich. June 29, 2018). The opinion was written in a patent case in Detroit by Executive Magistrate Judge R. Steven Whalen. He looked at the proposed keywords and found them wanting, but wisely refused to go further and tell them what keywords to use. Well done Judge Whalen!

This case is similar to the one discussed in my last blog, Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use, where Magistrate Judge Laura Fashing in Albuquerque was asked to resolve a keyword dispute in United States v. New Mexico State University, No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017). Judge Fashing not only found the proposed keywords inadequate, but came up with her own replacement keywords and did so without any expert input.

In my prior blog on Judge Fashing’s decision I discussed Judge John Facciola’s landmark legal search opinion in United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) and other cases that follow it. In O’Keefe Judge Facciola held that because keyword search questions involve complex, technical, scientific questions, that a judge should not decide such issues without the help of expert testimony. That is the context for his famous line:

Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.

In this weeks blog I consider the opinion by Judge Whalen in Webastro Thermo & Comfort v. BesTop, Inc., 2018 WL 3198544, No.16-13456 (E.D. Mich. June 29, 2018) where he told the parties what keywords not to use, again without expert input, but stopped there. Interesting counterpoint cases. It is also interesting to observe that in all three cases, O’Keefe, New Mexico State University and Webastro, the judges end on the same note where the parties are ordered to cooperate. Ah, if it were only so easy.

Stipulated Order Governing ESI Production

In Webastro Thermo & Comfort v. BesTop, Inc., the parties cooperated at the beginning of the case. They agreed to the entry of a stipulated ESI Order governing ESI production. The stipulation included a cooperation paragraph where the parties pledge to try to resolve all ESI issues without judicial intervention. Apparently, the parties cooperation did not go much beyond the stipulated order. Cooperation broke down and the plaintiff filed a barrage of motions to avoid having to do document review, including an Emergency Motion to Stay ESI Discovery. The plaintiff alleged that the defendant violated the ESI stipulation by “propounding overly broad search terms in its request for ESI.” Oh, how terrible. Red Alert!

Plaintiffs further accused defense counsel of “propounding prima facie inappropriate search criteria, and refusal to work in good faith to target its search terms to specific issues in this case.” Again, the outrageous behavior reminds me of the Romulans. I can see why plaintiff’s counsel called an emergency and asked for costs and relief from having to produce any ESI at all. That kind of approach rarely goes over well with any judge, but here it worked. That’s because the keywords the defense wanted plaintiff to use in its search for relevant ESI were, in fact, very bad.

Paragraph 1.3(3) of the ESI Order establishes a protocol designed to constrain e-discovery, including a limitation to eight custodians with no more than ten keyword search terms for each. It goes on to provide the following very interesting provision:

The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its product name, are inappropriate unless combined with narrowing search criteria that significantly reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g. ‘computer’ and ‘system’) narrows the search and shall count as a single term. A disjunctive combination of multiple words or phrases (e.g. ‘computer’ or ‘system’) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g. ‘and,’ ‘but not,’ ‘w/x’) is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery.

Remember, this is negotiated wording that the parties agreed to, including the bit about product names and “conjunctive combination.”

Defendant’s Keyword Demands

The keywords proposed by defense counsel for plaintiff’s search then included: “Jeep,” “drawing” and its abbreviation “dwg,” “top,” “convertible,” “fabric,” “fold,” “sale or sales,” and the plaintiff’s product names,  “Swaptop” and “Throwback.”

Plaintiff’s counsel advised Judge Whalen that the ten terms created the following results with five custodians (no word on the other three):

  • Joseph Lupo: 30 gigabytes, 118,336 documents.
  • Ryan Evans: 13 gigabytes, 44,373 documents.
  • Tyler Ruby: 10 gigabytes, 44,460 documents.
  • Crystal Muglia: 245,019 documents.
  • Mark Denny: 162,067 documents.
In Footnote Three Judge Whalen adds, without citation to authority or the record, that:
One gigabyte would comprise approximately 678,000 pages of text. 30 gigabytes would represent approximately 21,696,000 pages of text.

Note that Catalyst did a study of average number of files in a gigabyte in 2014. They found that the average number was 2,500 files per gigabyte. They suggest using 3,000 files per gigabyte for cost estimates, just to be safe. So I have to wonder where Judge Whalen got this 678,000 pages of text per gigabyte.

Plaintiff’s counsel added that:

Just a subset of the email discovery requests propounded by BesTop have returned more than 614,00 documents, comprising potentially millions of individual pages for production.

Plaintiff’s counsel also filed an affidavit where he swore that he reviewed the first 100 consecutively numbered documents to evaluate the burden. Very impressive effort. Not! He looked at the first one-hundred documents that happened to be on top of a 614,000 pile. He also swore that none of these first one-hundred were relevant. (One wonders how many of them were empty pst container files. They are often the “documents” found first in consecutive numbering of an email collection. A better sample might have been to look at the 100 docs with the most hits.)

Judge Whalen Agrees with Plaintiff on Keywords

Judge Whalen agreed with plaintiff and held that:

The majority of defendant’s search terms are overly broad, and in some cases violate the ESI Order on its face. For example, the terms “throwback” and “swap top” refer to Webasto’s product names, which are specifically excluded under 1.3(3) of the ESI Order.

The overbreadth of other terms is obvious, especially in relation to a company that manufactures and sells convertible tops: “top,” “convertible,” “fabric,” “fold,” “sale or sales.” Using “dwg” as an alternate designation for “drawing” (which is itself a rather broad term) would call into play files with common file extension .dwg.

Apart from the obviously impermissible breadth of BesTop’s search terms, their overbreadth is borne out by Mr. Carnevale’s declarations, which detail a return of multiple gigabytes of ESI potentially comprising tens of millions of pages of documents, based on only a partial production. In addition, the search of just the first 100 records produced using BesTop’s search terms revealed that none were related to the issues in this lawsuit. Contrary to BesTop’s contention that Webasto’s claim of prejudice is conclusory, I find that Webasto has sufficiently “articulate[d] specific facts showing clearly defined and serous injury resulting from the discovery sought ….” Nix, 11 Fed.App’x. at 500.

Thus, BesTop’s reliance on City of Seattle v. Professional Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. 2008), is inapposite. In City of Seattle, the defendant offered no facts to support its assertion that discovery would be overly burdensome, instead “merely state[ing] that producing such emails ‘would increase the email universe exponentially[.]’” Id. at *3. In our case, Webasto has proffered hard numbers as to the staggering amount of ESI returned based on BesTop’s search requests. Moreover, while disapproving of conclusory claims of burden, the Court in City of Seattle recognized that the overbreadth of some search terms would be apparent on their face:

“‘[U]nless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.’” Id., quoting Boeing Co. v. Agric. Ins. Co., 2007 U.S. Dist. LEXIS 90957, *8 (W.D.Wash. Dec. 11, 2007).

As discussed above, many of BesTop’s terms are indeed overly general on their face. And again, propounding Webasto’s product names (e.g., “throwback” and “swap top”) violates the express language of the ESI Order.

Defense Counsel Did Not Cooperate

Judge Whalen then went on to address the apparent lack of cooperation by defendant.

Adversarial discovery practice, particularly in the context of ESI, is anathema to the principles underlying the Federal Rules, particularly Fed.R.Civ.P. 1, which directs that the Rules “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” In this regard, the Sedona Conference Cooperation Proclamation states:

“Indeed, all stakeholders in the system–judges, lawyers, clients, and the general pubic–have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge. It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by ‘gamesmanship’ or ‘hiding the ball,’ to no practical effect.”

The stipulated ESI Order, which controls electronic discovery in this case, is an important step in the right direction, but whether as the result of adversarial overreach or insufficient effort, BesTop’s proposed search terms fall short of what is required under that Order.

Judge Whalen’s Ruling

Judge Whalen concluded his short Order with the following ruling:

For these reasons, Webasto’s motion for protective order [Doc. #78] is GRANTED as follows:

Counsel for the parties will meet and confer in a good-faith effort to focus and narrow BesTop’s search terms to reasonably limit Webastro’s production of ESI to emails relevant (within the meaning of Rule 26) to the issues in this case, and to exclude ESI that would have no relationship to this case.

Following this conference, and within 14 days of the date of this Order, BesTop will submit an amended discovery request with the narrowed search terms.  …

Because BesTop will have the opportunity to reformulate its discovery request to conform to the ESI Order, Webasto’s request for cost-shifting is DENIED at this time. However, the Court may reconsider the issue of cost-shifting if BesTop does not reasonably narrow its requests.

Difficult to Cooperate on Legal Search Without the Help of Experts

The defense in Webastro violated their own stipulation by the use of a party’s product names without further Boolean limiters, such as “product name AND another term.” Then defense counsel added insult to injury by coming across as uncooperative. I don’t know if they alone were uncooperative, or if it was a two way street, but appearances are everything. The emails between counsel were attached to the motions, and the judge scowled at the defense here, not plaintiff’s counsel. No judge likes attorneys who ignore orders, stipulated or otherwise, and are uncooperative to boot. “Uncooperative” is  label that you should avoid being called by a judge, especially in the world of e-discovery. Better to be an angel for discovery and save the devilish details for motions and trial.

In Webastro Thermo & Comfort v. BesTop, Inc., Judge Whalen struck down the proposed keywords without expert input. Instead Judge Whalen based his order on some incomplete metrics, namely the number of hits produced by the keywords that defense dreamed up. At least Judge Whalen did not go further and order the use of specific keywords as Judge Fashing did in United States v. New Mexico State University. Still, I wish he had not only ordered the parties to cooperate, but also ordered them to bring in some experts to help with the search tasks. You cannot just talk your way into good searches. No matter what the level of cooperation, you still have to know what you are doing.

If I had been handling this for the plaintiff, I would have gotten my hands much dirtier in the digital mud, meaning I would have done far more than just look at the first one-hundred of 614,000 documents. That was a poor quality control test, but obviously, here at least, was better than nothing. I would have done a sample review of each keyword and evaluated the precision of each. Some might have been ok as is, although probably not. They usually require some refinement. Sometimes it only takes a few minutes of review to determine that. Bottom line, I would have checked out the requested keywords. There were only ten here. That would take maybe three hours or so with the right software. You do not need big judgmental sampling most of the time to see the effectiveness, or not, or keywords.

The next step is to come up with, and test, a number of keyword refinements based on what you see in the data. Learn from the data. Test and improve various keyword combinations. That can take a few more hours. Some may think this is too much work, but it is far less time than preparing motions, memos and attending hearings. And anyway, you need to find the relevant evidence for your case.

After the tests, you share what you learned with opposing counsel and the judge, assuming they want to know. In my experience, most could care less about your methods, so long as your production includes the information they were looking for. You do not have to disclose your every little step, but you should at least advise, again if asked, information about “hit results.” This disclosure alone can go a long way, as this opinion demonstrates. Plaintiff’s counsel obtained very little data about the ineffectiveness of the defendants proposed searched terms, but that was enough to persuade the judge to enter a protective order.

To summarize, after evaluating the proposed search terms I would have improved on them. Using the improved searches I would have begun the attorney review and production. I would have shared the search information, cooperated as required by stipulation, case-law and rules, and gone ahead with my multimodal searches. I would use keywords and the many other wonderful kinds of searches that the Legal Technology industry has come up with in the last 25 years or so since keyword search was new and shiny.

Conclusion

The stipulation the parties used in Webastro could have been used at the turn of the century. Now it seems a little quaint, but alas, suits most inexperienced lawyers today. Anyway, talking about and using keywords is a good way to start a legal search. I sometimes call that Relevancy Dialogues or ESI Communications. Try out some keywords, refine and use them to guide your review, but do not stop there. Try other types of search too. Multimodal. Harness the power of the latest technology, namely AI enhanced search (Predictive Coding). Use statistics too and random sampling to better understand the data prevalence and overall search effectiveness.

If you do not know how to do legal search, and I estimate that 98% of lawyers today do not, then hire an expert. (Or take the time to learn, see eg TARcourse.com.) Your vendor probably has a couple of search experts. There may also be a lawyer in town with this expertise. Now there are even a few specialty law firms that offer these services nationwide. It is a waste of time to reinvent the Wheel, plus it is an ethical dictate under Rule 1.1 – Competence, to associate with competent counsel on a legal task when you are not.

Regarding the vendor experts, remember that even though they may be lawyers, they can only go so far. They can only provide technical advice, not legal, such as proportionality analysis under Rule 26, etc. That requires a practicing lawyer who specializes in e-discovery, preferably as a full-time specialty and not just something they do every now and then. If you are in a big firm, like I am, find the expert in your firm who specializes in e-discovery, like me. They will help you. If your firm does not have such an expert, better get one, either that or get used to losing and having your clients complain.

 


Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use

June 24, 2018

John Facciola was one of the first e-discovery expert judges to consider the adequacy of a producing parties keyword search efforts in United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). He first observed that keyword search and other computer assisted legal search techniques required special expertise to do properly. Everyone agrees with that. He then reached an interesting, but still somewhat controversial conclusion: because he lacked such special legal search expertise, and knew full well that most of the lawyers appearing before him did too, that he could not properly analyze and compel the use of specific keywords without the help of expert testimony. To help make his point he paraphrased Alexander Pope‘s famous line from An Essay on Criticism: “For fools rush in where angels fear to tread.

Here are the well-known words of Judge Facciola in O’Keffe (emphasis added):

As noted above, defendants protest the search terms the government used.[6]  Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?; 13 Ricn. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008).

Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.

Many courts have followed O’Keffe, even though it is a criminal case, and declined to step in and order specific searches without expert input. See eg. the well-known patent case, Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2012 US Dist LEXIS 163654 (ND Cal Nov 15, 2012). The opinion was by U.S. Magistrate Judge Paul S. Grewal, who later became the V.P. and Deputy General Counsel of Facebook. Judge Grewal wrote:

But as this case makes clear, making those determinations often is no easy task. “There is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work.”[9]

Unfortunately, despite being a topic fraught with traps for the unwary, the parties invite the court to enter this morass of search terms and discovery requests with little more than their arguments.

More recently, e-discovery expert Judge James Francis addressed this issue in Greater New York Taxi Association v. City of New York, No. 13 Civ. 3089 (VSB) (JCF) (S.D.N.Y. Sept. 11, 2017) and held:

The defendants have not provided the necessary expert opinions for me to assess their motion to compel search terms. The application is therefore denied. This leaves the defendants with three options: “They can cooperate [with the plaintiffs] (along with their technical consultants) and attempt to agree on an appropriate set of search criteria. They can refile a motion to compel, supported by expert testimony. Or, they can request the appointment of a neutral consultant who will design a search strategy.”[10] Assured Guaranty Municipal Corp. v. UBS Real Estate Securities Inc., No. 12 Civ. 1579, 2012 WL 5927379, at *4 (S.D.N.Y. Nov. 21, 2012).

I am inclined to agree with Judge Francis. I know from daily experience that legal search, even keyword search, can be very tricky, depends on many factors, including the documents searched. I have spent over a decade working hard to develop expertise in this area. I know that the appropriate searches to be run depends on experience and scientific, technical knowledge on information retrieval and statistics. It also depends on tests of proposed keywords; it depends on sampling and document reviews; it depends on getting your hands dirty in the digital mud of the actual ESI. It cannot be done effectively in the blind, no matter what your level of expertise. It is an iterative process of trial and errors, false positives and negatives alike.

Enter a Judge Braver Than Angels

Recently appointed U.S. Magistrate Judge Laura Fashing in Albuquerque, New Mexico, heard a case involving a dispute over keywords. United States v. New Mexico State University, No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017). It looks like the attorneys in the case neglected to inform Judge Fashing of United States v. O’Keefe. It is a landmark case in this field, yet was not cited in Judge Fashing’s order. More importantly, Judge Fashing did not take the advice of O’Keefe, nor the many cases that follow it. Unlike Judge Facciola and his angels, she told the parties what keywords to use, even without input from experts.

The New Mexico State University opinion did, however, cite to two other landmark cases in legal search, William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) by Judge Andrew Peck and Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) by Judge Paul Grimm. Judge Fashing held in New Mexico State University:

This case presents the question of how parties should search and produce electronically stored information (“ESI”) in response to discovery requests. “[T]he best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009). Cooperation prevents lawyers designing keyword searches “in the dark, by the seat of the pants,” without adequate discussion with each other to determine which words would yield the most responsive results. Id.

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.

Id. (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008)).

Although NMSU has performed several searches and produced thousands of documents, counsel for NMSU did not adequately confer with the United States before performing the searches, which resulted in searches that were inadequate to reveal all responsive documents. As the government points out, “NMSU alone is responsible for its illogical choices in constructing searches.” Doc. 117-1 at 8. Consequently, which searches will be conducted is left to the Court.

Judges Francis, Peck and Facciola

Judge Laura Fashing had me in the quote above until the final sentence. Up till then she had been wisely following the four great judges in this area, Facciola, Peck, Francis and Grimm. Then in the next several paragraphs she rushes in to specify what search terms should be used for what categories of ESI requested. Why should the Court go ahead and do that without expert advice? Why not wait? Especially since Judge Fashing starts her opinion by recognizing the difficulty of the task, that “there are well-known limitations and risks associated with them [keyword searches], and proper selection and implementation obviously involves technical, if not scientific knowledge.” Knowing that, why was she fearless? Why did she ignore Judge Facciola’s advice? Why did she make multiple detailed, technical decisions on legal search, including specific keywords to be used, without the benefit of expert testimony? Was that foolish as several judges have suggested, or was she just doing her job by making the decisions that the parties asked her to make?

Judge Fashing recognized that she did have enough facts to make a decision, much less expert opinions based on technical, scientific knowledge, but she went ahead and ruled anyway.

Although NMSU argues that the search terms proposed by the government will return a greater number of non-responsive documents than responsive documents, this is not a particular and specific demonstration of fact, but is, instead, a conclusory argument by counsel. See Velasquez, 229 F.R.D. at 200. NMSU’s motion for a protective order with regard to RFP No. 8 is DENIED.

NMSU will perform a search of the email addresses of all individuals involved in salary-setting for Ms. Harkins and her comparators, including Kathy Agnew and Dorothy Anderson, to include the search terms “Meaghan,” “Harkins,” “Gregory,” or “Fister” for the time period of 2007-2012. If this search results in voluminous documents that are non-responsive, NMSU may further search the results by including terms such as “cross-country,” “track,” “coach,” “salary,” “pay,” “contract,” or “applicants,” or other appropriate terms such as “compensation,” which may reduce the results to those communications most likely relevant to this case, and which would not encompass every “Meaghan” or “Gregory” in the system. However, the Court will require NMSU to work with the USA to design an appropriate search if it seeks to narrow the search beyond the four search terms requested by the United States.

Judge Fashing goes on to make several specific orders on what to do to make a reasonable effort to find relevant evidence:

NMSU will conduct searches of the OIE databases, OIE employee’s email accounts, and the email accounts of all head coaches, sport administrators, HR liaisons working within the Athletics Department, assistant or associate Athletic Directors, and/or Athletic Directors employed by NMSU between 2007 and the present. The USA suggests that NMSU conduct a search for terms that are functionally equivalent to a search for (pay or compensate! or salary) and (discriminat! or fair! or unfair!). Doc. 117-1 at 13. If NMSU cannot search with “Boolean” connectors as suggested, it must search for the terms “pay” or “compensate” or “salary” and “discriminate” or “fair” or “unfair” and the various derivatives of these terms (for example the search would include “compensate” and “compensation”). The parties are to work together to determine what terms will be used to search these databases and email accounts.

Judge Laura Fashing hangs her hat on cooperation, but not on experts. She concludes her order with the following admonishment:

The parties are reminded that:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

William A. Gross Const. Assocs., Inc., 256 F.R.D. at 136.

Conclusion

Of course I agree with Judge Fashing’s concluding reminder to the parties. Cooperation is key, but so is expertise. There is a good reason for the fear felt by Facciola’s angels. They wisely  knew that they lacked the necessary technical, scientific knowledge for the proper selection and implementation of keyword searches. I only wish that Judge Fashing’s order had reminded the parties of this need for experts too. It would have made her job much easier and also helped the parties. Sometimes the wisest thing to do is nothing, at least not until you have more information.

There is widespread agreement among legal search experts on such simplistic methods as keyword search. They would have helped. The same holds true on advanced search methods, such as active machine learning (predictive coding), at least among the elite. See TARcourse.com. There is still some disagreement on TAR methods, especially when you include the many pseudo experts out there. But even they can usually agree on keyword search methods.

I urge the judges and litigants faced with a situation like Judge Fashing had to deal with in New Mexico State University, to consider the three choices set out by Judge Francis in Greater New York Taxi Association:

  1. Cooperation with the other side and their technical consultants to attempt to agree on an appropriate set of search criteria.
  2. Motions supported by expert testimony and facts regarding the search.
  3. Appointment of a neutral consultant who will design a search strategy.

Going it alone with legal search in a complex case is a fool’s errand. Bring in an expert. Spend a little to save a lot. It is not only the smart thing to do, it is also required by ethics. Rule 1.1: Competence, Model Rules of Professional Conduct. The ABA Comment two to Rule 1.1 states that “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” Yet, in my experience, this is seldom done and is not something that clients are clamoring for. That should change, and quickly, if we are ever to stop wasting so much time and money on simplistic e-discovery arguments. I am again reminded of the great Alexander Pope (1688–1744) and another of his famous lines from An Essay on Criticism.

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After I wrote this blog I did a webinar for ACEDS about this topic. Here is a one-hour talk to add to your personal Pierian spring.

 

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Disproportionate Keyword Search Demands Defeated by Metric Evidence of Burden

June 10, 2018

The defendant in a complex commercial dispute demanded that plaintiff search its ESI for all files that had the names of four construction projects. Am. Mun. Power, Inc. v. Voith Hydro, Inc. (S.D. Ohio, 6/4/18) (copy of full opinion below). These were the four projects underlying the law suit. Defense counsel, like many attorneys today, thought that they had magical powers when it comes to finding electronic evidence. They thought that all, or most all, of the ESI with these fairly common project names would be relevant or, at the very least, worth examining for relevance. As it turns out, defense counsel was very wrong, most of the docs with keyword hits were not relevant and the demand was unreasonable.

The Municipal Power opinion was written by Chief Magistrate Judge Elizabeth A. Preston Deavers of the Southern District Court of Ohio. She reached this conclusion based on evidence of burden, what we like to call the project metrics. We do not know the total evidence presented, but we do know that Judge Deavers was impressed by the estimate that the privilege review alone would cost the plaintiff between $100,000 – $125,000. I assume that estimate was based on a linear review of all relevant documents. That is very expensive to do right, especially in large, diverse data sets with high privilege and relevance prevalence. Triple and quadruple checks are common and are built into standard protocols.

Judge Deavers ruled against the defense on the four project names keywords request, and granted a protective order for the plaintiff because, in her words:

The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.

The plaintiff made its own excessive demand upon defendant to search its ESI using a long list of keywords, including Boolean logic. The plaintiff’s keyword list was much more sophisticated than the defendants four name search demand. The plaintiff’s proposal was rejected by the defendant and the judge for the same proportionality reason. It kind of looks like tit for tat with excessive demands on both sides. But, it is hard to say because the negotiations were apparently focused on mere guessed-keywords, instead of a process of testing and refining – evolved-tested keywords.

Defense counsel responded to the plaintiff’s keyword demands by presenting their own metrics of burden, including the projected costs of redaction of confidential customer information. These confidentiality concerns can be difficult, especially where you are required to redact. Better to agree upon an alternative procedure where you withhold the entire document and log them with a description. This can be a less expensive alternative to redaction.

When reading the opinion below note how the Plaintiff’s opposition to the demand to review all ESI with the four project names gave specific examples of types of documents (ESI) that would have the names on them and still have nothing whatsoever to do with the parties claims or defenses, the so called “false positives.” This is a very important exercise that should not be overlooked in any argument. I have seen some pretty terrible precision percentages, sometimes as low as two percent.

Get your hands in the digital mud. Go deep into TAR if you need to. It is where the time warps happen and we bend space and time to attain maximum efficiency. Our goal is to attain: (1) the highest possible review speeds (files per hr), both hybrid and human; (2)  the highest precision (% of relevant docs); and, (3) the countervailing goal of total recall (% of relevant docs found). The recall goal is typically given the greatest weight, with emphasis on highly relevant. The question is how much greater weight to give recall and that depends on the total facts and circumstances of the doc review project.

Keywords are the Model T of legal search, but we all start there. It is still a very important skill for everyone to learn and then move on to other techniques, especially to active machine learning.

In some simple projects it can still be effective, especially if the user is highly skilled and the data is simple. It also helps if the data is well known to the searcher from earlier projects. See TAR Course: 8th Class (Keyword and Linear Review).

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Below is the unedited full opinion (very short). We look forward to more good opinions by Judge Deavers on e-discovery.

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION. No. 2:17-cv-708

June 4, 2018

AMERICAN MUNICIPAL POWER, INC., Plaintiff, vs. VOITH HYDRO, INC., Defendant.

ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE. Judge Algenon L. Marbley.

MEMORANDUM OF DECISION

This matter came before the Court for a discovery conference on May 24, 2018. Counsel for both parties appeared and participated in the conference.

The parties provided extensive letter briefing regarding certain discovery disputes relating to the production of Electronically Stored Information (“ESI”) and other documents. Specifically, the parties’ dispute centers around two ESI-related issues: (1) the propriety of a single-word search by Project name proposed by Defendant Voith Hydro, Inc. (“Voith”) which it seeks to have applied to American Municipal Power, Inc.’s (“AMP”) ESI; 1 and (2) the propriety of AMP’s request that Voith run crafted search terms which AMP has proposed that are not limited to the Project’s name. 2 After careful consideration of the parties’ letter briefing and their arguments during the discovery conference, the Court concluded as follows:

  • Voith’s single-word Project name search terms are over-inclusive. AMP’s position as the owner of the power-plant Projects puts it in a different situation than Voith in terms of how many ESI “hits” searching by Project name would return. As owner, AMP has stored millions of documents for more than a decade that contain the name of the Projects which refer to all kinds of matters unrelated to this case. Searching by Project name, therefore, would yield a significant amount of discovery that has no bearing on the construction of the power plants or Voith’s involvement in it, including but not limited to documents related to real property acquisitions, licensing, employee benefits, facility tours, parking lot signage, etc. While searching by the individual Project’s name would yield extensive information related to the name of the Project, it would not necessarily bear on or be relevant to the construction of the four hydroelectric power plants, which are the subject of this litigation. AMP has demonstrated that using a single-word search by Project name would significantly increase the cost of discovery in this case, including a privilege review that would add $100,000 – $125,000 to its cost of production. The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.
  • AMP’s request that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of common construction terms and the names of hydroelectric parts is overly inclusive and would yield confidential communications about other projects Voith performed for other customers. Voith employees work on and communicate regarding many customers at any one time. AMPs proposal to search terms limited to certain date ranges does not remedy the issue because those employees still would have sent and received communications about other projects during the times in which they were engaged in work related to AMP’s Projects. Similarly, AMP’s proposal to exclude the names of other customers’ project names with “AND NOT” phrases is unworkable because Voith cannot reasonably identify all the projects from around the world with which its employees were involved during the decade they were engaged in work for AMP on the Projects. Voith has demonstrated that using the terms proposed by AMP without connecting them to the names of the Projects would return thousands of documents that are not related to this litigation. The burden on Voith of running AMP’s proposed search terms connected to the names of individual employees and general construction terms outweighs the possibility that the searches would generate hits that are relevant to this case. Moreover, running the searches AMP proposes would impose on Voith the substantial and expensive burden of manually reviewing the ESI page by page to ensure that it does not disclose confidential and sensitive information of other customers. The request is therefore overly burdensome and not proportional to the needs of the case.

1 Voith seeks to have AMP use the names of the four hydroelectric projects at issue in this case (Cannelton, Smithland, Willow and Meldahl) as standalone search terms without qualifiers across all of AMP’s ESI. AMP proposed and has begun collecting from searches with numerous multiple-word search terms using Boolean connectors. AMP did not include the name of each Project as a standalone term.

2 AMP contends that if Voith connects all its searches together with the Project name, it will not capture relevant internal-Voith ESI relating to the construction claims and defenses in the case. AMP asserts Voith may have some internal documents that relate to the construction projects that do not refer to the Project by name, and included three (3) emails with these criteria it had discovered as exemplars. AMP proposes that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of generic construction terms and the names of hydroelectric parts.

IT IS SO ORDERED.

DATED: June 4, 2018

/s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

 

 


Proportionality Analysis Defeats Motion for Forensic Examination

May 28, 2018

It is rare of a judge to change their mind after making a decision. It is rarer still for a judge to celebrate doing so in a written opinion for the world to see. But that is exactly what Magistrate Judge Jeffrey Cole has done in his opinion dated May 17, 2018 in Motorola Sols., Inc v. Hytera Communications Corp., No. 17 C 1973 (N.D. Ill.).

This celebration is one reason that Judge Cole’s Order denying Motorola’s motion for forensic inspection is so remarkable. Another is that it begins with a quote, a rare occurrence in judicial orders, one that I always like. The quote celebrates the better late than never philosophy of changing your mind to follow a new understanding, a personal wisdom. The quote is by the late, great Supreme Court Justice, Felix Frankfurter. Felix served as a judge on the Supreme Court from 1939 to 1962.  Before that he was, among other things, a Harvard Law Professor and co-founder of the American Civil Liberties Union. Here is the quote with which Cole begins his order:

“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct. 290, 93 L. Ed. 259, 1949-1 C.B. 223 (1949)

(Frankfurter, J., dissenting)

Another unusual thing about Judge Cole’s order, and the real reason I am writing about it, is that the wisdom that came to him was from the doctrine of proportionality and Rule 26(b)(1). This was the basis for Judge Cole to deny plaintiff’s motion for a forensic inspection of defendant’s computers, in China no less.

District Court Judge Ronald Norgle had previously allowed the parties until October 6, 2017, to conduct discovery on the statute of limitations defense only and stayed all other discovery. The parties had one month in which to take discovery on a very limited topic of fraudulent concealment, which is a type of tolling within the doctrine of equitable estoppel of the limitations defense. Nothing else. After all, Motorola has waited almost ten years before filing a trade-secret theft suit against a Chinese corporation for allegedly stealing its radio wave technology. As Judge Cole colorfully described the situation (citations to record removed in all quotes) with a reference to Hannibal:

While the inquiry should have been uncomplicated, it has become a long, drawn out, pitched battle — one, in a rhetorical sense, to rival the Punic Wars — albeit without the elephants and the Alps and the sheer drama.

After that, the parties exchanged motions to compel repeatedly. Deadlines were extended, from one month to several. Thousands of pages of memoranda and exhibits were filed. 1  And, again, this was all over the supposedly limited discovery on a limited topic that ought to have taken little time and effort. The very nature of what occurred tends to sustain the all too prevalent observation that discovery has become more important than the actual case. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 595, n.13, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986).

1 The filings and orders in this case which, again, is only in the preliminary stage of determining whether Motorola’s filing is timely, already cover more than 7,500 pages. See also n. 5, infra.

Five months into this “limited” discovery process Motorola asked to conduct a forensic examination of the computers of “key Hytera witnesses who have been involved in the use of Motorola’s confidential information and any relevant Hytera servers … on which Hytera has stored Motorola documents,” all of which are located in China. Motorola said it wanted to “begin with forensic inspection of the computers” of seven Hytera employees. Judge Cole said this request reminded him of Winston Churchill’s famous quip: “Now this is not the end. It is not even the beginning of the end.”

Flip Flopping Towards Wisdom

After several hearings Judge Cole was persuaded by the siren songs of plaintiff’s counsel from the well-known firm of Kirkland & Ellis LLP. They must have been very good orators and put on a compelling argument to support their motion. They convinced Judge Cole to allow them to begin a forensic examination process in China under elaborate Hague Convention procedures. Only after the hearings and oral decision to compel the inspection did Judge Cole realize the error of that decision. Judge Cole to his credit does not blame Kirkland and Ellis litigators for leading him astray. Following standard judicial protocol Judge Cole assumed full responsibility for the initial error:

Over the course of two lengthy hearings on March 21 and April 4, 2018, I tentatively concluded that forensic examination of Hytera’s computers would be appropriate, but only if the parties could arrive at a suitable protocol that would not, among other things, run afoul of Chinese law. As we discuss, infra at 5, that was a mistake. But the law frowns on relying on a blunder to gain an opportunistic advantage. Cf. Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1231 (7th Cir.1995); Market Street Associates; Packer Trading Co. v. CFTC, 972 F.2d 144, 150 (7th Cir 1992); Centex Construction v. James, 374 F.2d 921, 923 (8th Cir.1967). 2

2 We should not be understood as ascribing fault to plaintiff’s counsel. After all, in our adversary system, lawyers properly play a partisan role. Masias v. Secretary of Health and Human Svcs, 2009 U.S. Claims LEXIS 281, at *27 (Fed. Cl. 2009); Philips Medical Systems Intern. B.V. v. Bruetman, 8 F.3d 600, 606 (7th Cir.1993) (Posner, J.). See also Smith v. Robbins, 528 U.S. 259, 293, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (Souter, J., dissenting) (“a partisan scrutiny of the record and assessment of potential issues, goes to the irreducible core of the lawyer’s obligation to a litigant in an adversary system … .”). Mistakes are ultimately (and in most cases) the responsibility of the court.

Judge Cole went on to celebrate a jurists right to change their mind in order to get things right.

The scope of discovery that I was initially inclined to allow was, in the context of the present inquiry that had been narrowed by the district court to the limitations issue, overbroad. What is being sought goes beyond the issue of equitable tolling. In the end, Motorola’s counsel and I were talking about relevance to allegations in Motorola’s complaint. And so, well beyond the statute of limitations, by the end of the April 4 hearing, discovery was encompassing documents related to Motorola’s entire case.

As we have said, “all judges make mistakes,” Fujisawa Pharm. Co., 115 F.3d at 1339, and, when possible, it is best that judges put them right.

Proportionality Applied to Restrain Discovery

In the May 17, 2018 order Judge Cole found the wisdom to say no and forbid the forensic examination of the computers in China. He did so because he found that this discovery was “out of proportion with the needs of this case, as presently limited by the district court” and cited Rule 26 (b)(1), Federal Rules of Civil Procedure. Although I am sure that he heard extensive argument and evidence concerning the estimated costs and burdens imposed by the forensic exams, his decision did not focus on costs. Instead it focused on one of the other very important factors in 26(b)(1), “the importance of the discovery in resolving the issues.” Judge Cole realized that the computers in China could not possibly have information in them of any real relevance to equitable tolling of the statute of limitations defense.

At a minimum, even if relevant to the present limited issue, discovery of computers in China is not proportional to the importance of discovery in resolving the issues and the burden and expense of the proposed discovery manifestly outweighs its likely benefit to the very limited question of equitable tolling. Although the federal discovery rules are permissive, they are not, as Judge Moran wisely put it, “a ticket to an unlimited … exploration of every conceivable matter that captures an attorney’s interest.” Sapia v. Bd. of Educ. of the City of Chi., 2017 U.S. Dist. LEXIS 73153, 2017 WL 2060344, at *2 (N.D. Ill. 2017); see also Leibovitch v. Islamic Republic of Iran, 2018 U.S. Dist. LEXIS 31713, 2018 WL 1072567, at *11 (N.D. Ill. 2018). “[J]udges should not hesitate to exercise appropriate control over the discovery process.” Herbert v. Lando, 441 U.S. 153, 177, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979). Failure to exercise that control results in needless and enormous costs to the litigants and to the due administration of justice.

Judge Cole also understood that a forensic inspection is a drastic remedy that requires good cause not shown by plaintiff here:

The original idea here was for a month or so of discovery focused on the very limited issue of the statute of limitations. While it is rare for parties to complete discovery even by dates chosen by their counsel, there can be no dispute that things have already gone far beyond what was intended and what was necessary in the statute of limitations portion of this case, in terms of time and scope. Now, Motorola wants things to go very much further. Forensic examination is generally regarded as a drastic step even in general discovery. See, e.g.,John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (“mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.”). As the court said in In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003):

““In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information … . This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information.”

The Advisory Committee Notes to Rule 34 recognize that courts must use caution in evaluating requests to inspect an opposing party’s electronic devices or systems for ESI, in order to avoid unduly impinging on a party’s privacy interests:

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Fed. R. Civ. P. 34, Advisory Committee Notes—2006 Amendment (emphasis added). Likewise, the Sedona Principles urge general caution in this area:

Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail … . [M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.

The Sedona Principles, supra, at 34, 47. 4

Conclusion

Judge Cole’s wrap up is wise and witty and something you may want to quote in many discovery disputes, especially the footnote:

Parties are entitled to a reasonable opportunity to investigate the relevant facts — and no more. Upjohn Company v. United States, 449 U.S. 383, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981); Vakharia v. Swedish Covenant Hosp., 1994 U.S. Dist. LEXIS 2712, at *2 (N.D. Ill. 1994) (Moran, J.). Motorola has already had that reasonable opportunity and far more. What was intended to be a month-long process of discovery on a very limited issue has turned into a protracted affair in which Motorola has received 700,000 documents — nearly 3 million pages — over a period of eight months. 5

5 A ream of paper is 500 sheets, which is 2 inches tall. Three million pages is 6,000 reams, meaning that 3 million pages of discovery, which is about 1,000 feet high or 100 stories high. By any measure, that is extraordinary.

Yet, apparently for Motorola, it’s not enough. It now wants a forensic inspection of several computers in China — and it warns that that is only the “beginning.” What should have been limited discovery on a “straightforward [issue has] spiral[ed] out of control.” Montanez v. Simon, 755 F.3d 547, 552 (7th Cir. 2014). The time has come to say: “enough is enough.” Walker v. Sheahan, 526 F.3d 973, 981 (7th Cir. 2008). Eight months of “limited,” single-issue discovery are now at an end. Motorola’s motion for forensic inspection is denied.

Enough is enough. To go further would have been a disproportionate burden, especially considering the very narrow issue allowed in discovery. Judge Cole at first made a mistake, and then he changed his mind and made it right. He is a wise judge. I wish there were more like him. Except of course if you change your mind to rule against me! <‘_’>


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