Last week the ABA released e-Discovery: Current Trends and Cases (2008), the first book to introduce this high-tech field to all readers, not just lawyers. The book discusses the issues and cases in an easy-to-read format that can also be used as a reference. In seven chapters and fifty-eight separate articles, the book introduces electronic discovery and explains the latest trends and cases, in what I think you will find is an interesting manner. It also outlines the new interdisciplinary team approach to solving the unique problems of e-discovery–where the talents of law, IT and management are combined.
This book is intended for all levels of readers, including lawyers, judges, law students, academics, paralegals, IT professionals, e-discovery vendors, business executives and the general reader with an interest in technology and law. It can be ordered online at the American Bar Association website, or by phone from the ABA during business hours at: 1-800-285-2221. The discounted purchase price for ABA members is $79.95; for all others, it’s $99.95.
If you enjoy reading this blog, then you should like the book, since it is based on the blogs I wrote here from November 2006 to September 2007. You can find more details and background on the book at the ABA website or my own web at FloridaLawFirm.com.
e-Discovery: Current Trends and Cases is 313 pages in length, including an index. The book is organized and presented by categories in seven chapters:
Chapter One – Introduction to E-Discovery
Chapter Two – New Ethical Standards for E-Discovery;
Chapter Three – New Federal Rules of Civil Procedure;
Chapter Four – Spoliation and Sanctions;
Chapter Five – Metadata;
Chapter Six – Search and Review of ESI;
Chapter Seven – New Technologies.
There is also an Appendix with several useful reference materials, including the new Federal Rules of Civil Procedure on e-discovery.
I met a couple of people I know the other day, lawyers in other fields, and one non-lawyer who just likes techstuff, who have already started reading the book. They told me, all smiles, that they were astonished to find that they actually understood it, a book on electronic discovery! There is no reason a complex subject cannot be explained clearly. The trick is to also keep it interesting, fresh, and true for the experts. That was my goal, and I think I have done that, but do me a favor and buy the book to see for yourself. Feel free to leave me a comment here, or privately, as to what you think. Here is what a few others have already been kind enough to say about the book:
“…a brilliant combination of tales, advice, victories and defeats which brings technology within the easy grasp of lawyers, allows IT staff to understand why their attorneys can’t sleep at night, and explains the whole headache to upper management. (It) captures the pace and wit of the original blog and informs like a text. It is your e-discovery field guide. ”
—William F. Hamilton, Partner, Holland & Knight LLP and Adjunct Professor at the University of Florida’s Levin College of Law
“Ralph Losey’s book is an e-discovery tour-de-force. For every litigator who thinks he or she has heard enough about e-discovery already, I suggest that the book will be eye-opening. For every CEO and CIO who hasn’t heard about the e-discovery tsunami engulfing the profession, I recommend that he or she be given a copy as a holiday present this year.”
—Jason R. Baron, Esq., Editor in Chief of The Sedona Best Practices Commentary on The Use of Search and Retrieval Methods in E-Discovery
“By bringing together the law, science and art of e-discovery, Ralph Losey’s book brings the e-discovery discussion back to life – a most welcome accomplishment.”
Anne Kershaw, founder of A. Kershaw, P.C. // Attorneys & Consultants
“All participants in the enormous electronic discovery industry owe it to themselves to read Ralph Losey. His deep knowledge of the field never prevents him from approaching each new event or insight as a passionate, well-informed observer. The net-net is to make e-discovery a good read, and I don’t know of anybody who does that better.”
—Jon Neiditz, Author, Presenter, and Of Counsel, Locke, Lord, Bissell & Liddell LLP
“Ralph’s book is a terrific resource for the litigator about to dive into the seemingly murky waters of electronic discovery. He not only summarizes the key issues in the field, but provides valuable insights based on his practical experience in the area. His writing style is straightforward (and humorous at times). In other words, unlike much lawyer-authored material, it’s actually readable! An excellent tool for the practitioner.”
–W. Lawrence Wescott II, author of the Electronic Discovery Blog
“E-Discovery- Current Trends and Cases is an excellent resource for any professional trying to stay current with the ever-changing world of Electronic Discovery. Mr. Losey tackles a very complex subject and makes it accessible and understandable to a wide spectrum of readers.”
—Keith D. Mobley, Esq., Legal Consultant, Legal Technologies, Kroll Ontrack
“Written in a clear, engaging style, Ralph Losey blends discussion of electronic discovery practice, case law, and issues into a concise and useful work. A must-read for the attorney new to e-discovery seeking a trustworthy mentor as well as to the experienced practioner seeking to deepen their knowledge.”
—Jim Barrick, President & CEO, Control Discovery, Inc.
“Litigation attorneys will increasingly find that courts will impose sanctions on those who do not know their client’s information systems, and who do not understand the e-discovery process and rules. This book is a must read for any litigation attorney who will inevitably have to deal with electronic data.”
–Ben Brush, Society of Corporate Compliance and Ethics; Account Manager, Datum Legal
“…(this book) does an extraordinary job of explaining challenges that frequently arise. Even more importantly, (Ralph Losey) proposes solutions to them. His book suggests ways to make e-discovery more manageable and discusses how new technologies and techniques may be used for e-discovery in the near future.”
—Peter D. Siddoway, Jones Day
Judges are not generally allowed to publicly praise a lawyers book, nor should they be. If they think a book is of any value, then they cite to it in an opinion. To a practicing attorney such as myself, this is really the highest compliment I can receive. For that reason, I was very excited to learn that immediately upon its release my book was both cited and quoted. I have Judge John M. Facciola to thank, who is Magistrate Judge in the hottest federal jurisdiction in the country for e-discovery, Washington D.C. He is one of the hardest working judges around and a true expert in the field of e-discovery. He is known for writing opinions that are not only learned, but also clever and well written.
The cite to my book is found at page 10 of the Memorandum Opinion rendered on January 23, 2008, in D’Onofrio v. SFX Sports Group, Inc., __ FRD __, 2008 WL 189842, or 2008 U.S. Dist. LEXIS 4252, (D.D.C., 2008). This part of the e-discovery order denied the plaintiff’s motion to compel production of metadata largely because the plaintiff did not ask for it in the original production request. Here is the specific cite to the book:
See also RALPH C. LOSEY, E-DISCOVERY, CURRENT TRENDS AND CASES 158-59 (2007) (summarizing recent cases as amounting to a “lesson . . . that in order to obtain metadata you may need, you should specifically ask for it to begin with”).
I am very honored by that. Thank you, Judge Facciola.
So that this blog won’t be all fluff, I want to end with some discussion and analysis of a few interesting points in D’Onofrio. This is a sex discrimination case where the plaintiff moved to compel discovery and impose sanctions against her former employer. Most of the discovery disputes relate to electronically stored information (“ESI”). Plaintiff asked the court to compel production of a business plan document and certain emails in their “original electronic format, with accompanying metadata.” D’Onofrio pg. 5. Plaintiff claimed that “defendants have deliberately caused the spoliation of electronic records and have purposely failed to produce many e-mails and documents.” Apparently, defendants produced the records requested, but they produced the business plan in paper form, and the emails in MSG format. (For more information on the deficiencies of MSG production, and why only PST production includes full metadata, see my prior blog: MSG is Bad for You.)
Rule 34(b) states that a discovery request “may specify the form or forms in which electronically stored information is to be produced.” If it does not, then the responding party must produce the information in a form “in which it is ordinarily maintained” or is “reasonably usable.” Rule 34 also only requires production of the same information in one form. Plaintiff argued that her original request for production specified that the information should be produced in its original form with metadata, and so the paper production was non-compliant. The problem is, her production did not say that; instead, it read as follows:
[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.
This is “so last century” boilerplate language. It is quite a stretch for the plaintiff to argue that the above is a request for native production with full metadata. It quite obviously does no such thing. To the contrary, it clearly refers to a paper production, and asks for the paper files to be produced in the paper folders in which they were originally maintained. Judge Facciola was not impressed by this attempt to convert such archaic language into an 21st Century request for native ESI.
It is apparent that this language, when first written, was not meant to encompass electronic data. Instead it addresses a common concern of paper discovery: the identification of a document’s custodian and origination. It is for this reason that the Instruction applies to documents “stored or maintained in files,” and why it seeks to “preserve and identify” the identity of that file. Indeed, the Instruction makes perfect sense when one presumes “file” to refer to a physical file cabinet or folder.
Id. pgs. 7-8. The court properly concluded that plaintiff’s request permitted paper production of the business plan. It is in this context that the court cited and quoted several authorities, including my new book. Here is the full string cite:
Ultimately, then, it does not matter whether the Instruction referred to paper or electronic files – a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata. See Vanston Bondholders Prot. Comm. v. Green, 329 U.S. 156, 170 (1946) (“Putting the wrong question is not likely to beget right answers even in law.”). A motion to compel is appropriate only where an appropriate request is made of the responding party. See Fed. R. Civ. P. 37(a)(1)(B); Raghavan v. Bayer USA, Inc., No. 3:05-cv-682, 2007 WL 2099637, at *4 (D. Conn. July 17, 2007) (“The court will not compel discovery that has not been sought.”).
Because no such request has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata.9 See, e.g., Ponca Tribe of Indians v. Continental Carbon Co., No. CIV-05-445-C, 2006 WL 2927878, at *6 (W.D. Okla. Oct. 11, 2006) (“The original document requests issued by Plaintiffs failed to specify the manner in which electronic or computer information should be produced. [Defendant] elected to use a commonly accepted means of complying with the request. Nothing in the materials provided by Plaintiffs supports requiring [Defendant] to reproduce the information in a different format. Accordingly, Plaintiffs’ request for reproduction of documents in their native electronic format will be denied.”); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 2006 WL 3091331, at *1-2 (D. Del. Oct. 26, 2006) (“Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files”). Cf. Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006) (requiring production in native format where requesting party asked for it and producing party did not object). See also RALPH C. LOSEY, E-DISCOVERY, CURRENT TRENDS AND CASES 158-59 (2007) (summarizing recent cases as amounting to a “lesson . . . that in order to obtain metadata you may need, you should specifically ask for it to begin with”).
Id. pgs. 9-10. The court next considered the defendants’ email production in MSG format, instead of PST format. Here defendants claim they did make production in PST format, and the complaint is ill founded. Defendants submitted an affidavit in opposition to plaintiff’s motion by John Cavender, who is identified as a “Security Principal.” I am not sure what that is, but he was obviously an IT expert of some kind, probably in charge of IT security. Cavender’s affidavit stated that he was responsible for the “retention and extraction of Clear Channel’s archived email on the Legato system” and that:
he has reviewed the DVDs that were produced to plaintiff and can confirm that they contain defendants’ e-mail production in .PST format, and that the production can be “searched by many criteria.”
Id. pg. 11. Apparently, plaintiff offered no contradictory testimony, and so there was no real dispute. This appears to be another classic example of law-IT miscommunication which I previously wrote about in Who’s On First?
On the sanctions motion, plaintiff offered additional grounds, including an alleged non-production of relevant emails. Plaintiff alleged that her expert, a representative of Kroll Ontrack, could verify the omission of the emails. Judge Facciola found the record on the missing email issue to be “too thin” to make a ruling, so he ordered an evidentiary hearing to hear testimony on the alleged claim by Kroll. The last half of the opinion goes on to address other issues that are not too interesting to anyone other than the parties.
The first half of the opinion in D’Onofrio v. SFX Sports Group, Inc. is very interesting and well worth reading. It may become well known as a case which exemplifies what can go wrong when a request for production uses obsolete language. The Electronic Discovery blog has already tagged this case for that proposition. The case thus shows the importance for practitioners to study up on e-discovery and use the correct language. Reading e-Discovery: Current Trends and Cases is one way to do that.