Kroll’s Report and Analysis of the Most Significant e-Discovery Cases in 2008

David Letterman with Losey's eyes, glasses and noseKroll Ontrack has just released a report analyzing 138 judicial opinions pertaining to electronic discovery issued from Jan. 1, 2008 to Oct. 31, 2008. The title of the report pretty much says it all:  Year In Review: Courts Unsympathetic to Electronic Discovery Ignorance or Misconduct.

Kroll also selected what it considers the top five most significant e-discovery cases in 2008. I do not agree with these rankings and selection, but anyway, here is how Kroll sees it, followed by my  smart-aleck commentary.

  1. Keithley v., Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008).
  2. Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008).
  3. Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008).
  4. United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).
  5. Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).

Keithley as the top case in 2008? No way! It makes my top 10, but certainly not the most significant case of the year.

I really like the Keithley case; in fact, I a wrote an article about it this year as soon as it came out: Tech v. Law – a Plea for Mutual Respect. That is the blog where I pissed off Michael Lynch, the CEO of  Autonomy, by quoting what the Wall Street Journal said he said about e-discovery lawyers (hint – remember lawyers wasting their time reading menus). As I explained in my blog, “This is a case involving serious sanctions against defendants based in no small part upon techs obvious lack of respect of the law and lawyers.” No wonder Kroll picked Keithley as their top case. If I were them, I would too. In fact, I have devoted a whole website,, to the importance of both techs and lawyers respecting each other and working together in perfect peace and harmony (its a dream!).

Still, objectively speaking, even though it is a well written and well reasoned opinion by senior federal Magistrate  Elizabeth D. Laporte, a really nice person who I have had the honor to meet on several occasions, it is not the most important case of 2008. Cases where serious sanctions have been imposed because of incredible displays of incompetence and arrogance by both lawyers and techs are legion. We have seen that same message in numerous other cases. We are still not getting it, as many techs and lawyers know all too well, but that does not make it the big case of the year.

So what about Kroll’s number two pick? Peskoff v. Faber? Did they get this one right? No, sorry, wrong again! The opinion’s author, Judge John M. Facciola, is just about my favorite judge of all time, and I hope he forgives me for this, but Peskoff is not the second most important case in 2008. Again, this is an important case, and I would probably include it in my top 10. Indeed, I also wrote about Peskoff in my article: More “Must Read” 2008 Cases – Part Three. I have my own thoughts on what case should be ranked number two for 2008 and I will get to that near the end of this blog.

Kroll’s number three pick is Flagg v. City of Detroit. This is another pretty good case and I have already written about it in More “Must Read” 2008 Cases – Part One in a Three Part Series. But the third most important case in 2008? Nah! Sorry dear Kroll, but you got it wrong again, way wrong. Flagg is a text messages case coming out of Detroit that does not involve the mayor and his girlfriend, uh, I mean aide. It ordered the production of other government employee text messages involving a murder investigation and set up a protocol for their review by magistrates for relevancy before production. (I bet that was a choice job!) Sorry, I do not think the discoverability of text messages is all that earth-shattering. This case does not even make my top ten, much less number three.

Kroll’s number four pick is United States v. O’Keefe. This is another case by Judge Facciola and, again, I have previously written about it in Criminal Case Raises Interesting e-Discovery Search Issues. Ok. This is finally one I agree with. As I said in my article on this important case: “To my knowledge, O’Keefe is the first opinion to suggest that judicial review of alleged search deficiencies requires expert testimony.” This case is a gem for many reasons, including both its ideas and writing style. It contains the now famous line (or infamous depending on who you ask) by Judge Facciolla:

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.

I agree that O’Keefe is the fourth most important case in 2008.

Coming in last on Kroll’s top five list is Victor Stanley, Inc. v. Creative Pipe, Inc. I really like this case, so much so that I took the unusual (for me at least) step to study the docket sheet on Pacer, read most of the pleadings in the case related to discovery, and even a few related to the merits (shudder) of the case, and spoke with the plaintiff’s counsel.

I wrote a long article on Victor Stanley called Hundredth Blog: Thoughts on SEARCH and Victor Stanley, Inc. v. Creative Pipe, Inc. where I took a moment to observe the writing of my one-hundredth blog, debunked the theory of the Hundredth Monkey effect, threw in a discussion of golf and Tiger Woods, and discussed this important case on search at length.

This 43 page opinion by Judge Paul W. Grimm is one of several masterpieces he wrote in 2008. Judge Grimm continued and elaborated on the story of search begun by Judge Facciolla in O’Keefe. Grimm’s tale concluded by finding waiver of privilege from negligent search. To quote just one of many important passages in this case:

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.

If so, then the trial judge must decide a method’s appropriateness with the benefit of information from some reliable source – whether an affidavit from a qualified expert, a learned treatise, or, if appropriate, from information judicially noticed. To suggest otherwise is to condemn the trial court to making difficult decisions on inadequate information, which cannot be an outcome that anyone would advocate.

Once again I must disagree with Kroll on the ranking of this case. Victor Stanley should not be ranked the number five case, it should be ranked number three. Kroll has understated the significance and important scholarship of this case. Victor Stanley is a treatise on e-discovery search and a guide to proving reasonable efforts. As Jason R. Baron is quoted as saying: “what Judge Grimm has done is give a road-map to lawyers in the United States on how to present to a court how they went about searching for relevant documents.”

My Top Two Cases for 2008

So what case do I think should be ranked number two for 2008? Well, it just happens to be another opinion by Judge Paul Grimm. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). It just squeaked in Kroll’s October 31, 2008 deadline here, so there is no excuse for their omission of this important case.

In Mancia Judge Grimm once again dazzles with scholarship and writes a law review article on the importance of Rule 26(g) and cooperation in discovery, which is not so cleverly disguised as a 30 page opinion on a motion for sanctions. Again, I wrote a long article on Mancia as soon as it came out entitled A New Opinion by Judge Grimm Makes the Legal Case for Cooperative Discovery.

As I previously stated in that blog:

Mancia contains an excellent overview of the federal rules and other law that require a cooperative approach to discovery. The opinion thus establishes a solid legal foundation for the new Sedona Conference Cooperation Proclamation,which I discussed at length in Hospital Defendants Martyred in the Cause of Cooperative e-DiscoveryMancia shows that far from being a Utopian ideal, the cooperative approach to discovery promoted by Sedona is already mandated by the law. 

This case should be included on everybody’s top five list. Judge Grimm correctly observed in Mancia that:

The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive-to the point of pricing litigants out of court. (extensive citations omitted)

Judge Grimm goes on to preach an important message that should be heard by all lawyers involved in litigation:

A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve.

Sorry, I think this is far more important than the discoverability of text messages and so I rank Mancia as my second most important case for 2008, and do not include Flagg v. City of Detroit as anything more than an interesting hick-up.

Now for the MOST IMPORTANT CASE OF 2008! Drumroll please. It is Qualcomm, what else? And it will probably be the most important case to e-discovery in 2009 as well. How in the world did Kroll omit Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (one of several relevant decisions in this case)? I have written on this landmark discovery ethics case many times:

All I can say at this point is  dictum meum pactum. If the lawyers do not follow the rules, who will? Certainly not Governor Rod Blagojevich, who, I am bleeping sorry to report, was a trial lawyer, a prosecutor, before going into politics.

To sum up, here are my Top Five cases for 2008:

  1. Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).
  2. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). 
  3. Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008). 
  4. United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).
  5. Keithley v., Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008). 

Kroll’s Statistical Analysis of 138 Cases in 2008

Going back to Kroll’s report, it claims that over half of the e-discovery cases this year have addressed court-ordered sanctions, data production, preservation, and spoliation issues. That sounds about right to me. According to Kroll’s analysis, the major issues in these cases can be broken down as follows:

  • 25% of cases addressed sanctions 
  • 20% of cases addressed various production considerations 
  • 13% of cases addressed preservation and spoliation issues 
  • 12% of cases addressed computer forensics protocols and experts 
  • 11% of cases addressed discoverability and admissibility issues 
  • 7% of cases addressed privilege considerations and waivers 
  • 7% of cases addressed various procedural issues 
  • 6% of cases addressed cost considerations 

According to Michele Lange, director of Legal Technologies for Kroll Ontrack, the meaning of these cases is obvious:

It is clear that courts are no longer allowing parties to plead ignorance when it comes to ESI best practices. These cases exemplify that judges can and will hand out sanctions for mishandling ESI and lack of document retention policies. Having a well-crafted document retention policy, ensuring cooperation between legal and IT departments, and partnering with an e-discovery expert can help prevent the same mishaps described in these cases, ultimately saving organizations hundreds of thousands in sanctions and reputation damages.

On this point Kroll and I agree, which, considering how late it is on a Sunday night, seems a pretty good note of harmony on which to end this blog.

7 Responses to Kroll’s Report and Analysis of the Most Significant e-Discovery Cases in 2008

  1. Dean Gonsowski says:

    Hi Ralph. For fear of more Kroll-esque treatment I submit my top 5 list for your scrutiny. We did have Mancia and VS in common, but my omission of Qualcomm is probably the most serious delta. I did view Qualcomm as being an ’08 case (when I belive it started). Best, Dean

  2. Ralph Losey says:

    Thanks. I too like the “In re Seroquel Prods. Liab. Litig.,” 244 F.R.D. 650 (M.D. Fla. 2007)” case that you include in your top 5 cases of 2008, but as your cite shows it is a 2007 case.

  3. Dean Gonsowski says:

    Touché. I’ve taken it under advisement and since it’s not in hard copy I’ll be inserting Qualcomm for Seroquel. Thanks for the catch. Best, Dean

  4. […] for many was the case of the year given it’s far reaching implications for the legal community.  Some […]

  5. […] v. Faber and United States v. O’Keefe will be presiding. Ralph Losey said he’s “just about my favorite judge of all time” and it’s sure to be a fantastic session to get up to speed on the cutting edge of […]

  6. Robert DeFazio says:

    What is amazing to me is that the unmistakeable trend among average businesses is still to bury one’s head in the sand, believing that litigation will never occur. The utter disarray that characterizes the way data is stored and handled invites findings of spoliation and high e-discovery costs. It is this same tendency that causes companies that must conform to SOX regulations to go through the motions without ever learning a thing.

    Much of the resistance, frankly, comes from IT departments whose agenda of having to deliver data results yesterday or earlier doesn’t seem to allow it to pause long enough to consider the impact of how it manages data and how those management techniques can lead to crippling expenses in possible future litigation. All too often IT managers make judgment calls that should not be left to them.

    Those decisions properly belong to CEOs, who should be honest enough to understand that at one point or another, litigation will arrive at their doors as an unwelcome visitor. Not making the decision to manage data in a way that makes e-discovery inexpensive is probably one of the costliest decisions a CEO would ever make.

    Moreover, if businesses would maintain an e-discovery-oriented data management program in parallel to their normal data management procedures, they would discover that their perception of the success of their businesses would change. If, for instance, customer complaints were not buried in a manila folder buried in a mid-level functionary’s file cabinet and instead were accessible from a kind of executive control panel that would allow the executive to categorize complaints and to determine the subject matter of complaints, it would serve to alert executives well in advance of potential sources of future litigation as well as to provide an indicator of how to improve products and customer relations. These are things that normally don’t show themselves in the garden variety of reports of sales, production costs, total revenues, and the typical spreadsheets and flash reports that executives have come to accept as the best ways to view the companies they run.

  7. […] I would love to hear Ralph Losey’s take on that considering his opinion on the assessment of 2008. Tags: e-Discovery Blogs, e-Discovery News, opinions, press […]

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