A new survey on 103 e-discovery cases from the first half of 2010 shows that sanctions are up, along with motions to compel. It also shows that judges are fed up with hide-the-ball aggressive tactics, and continue to urge attorneys to learn how to cooperate. Cooperation is an important trend, but it requires hard work to make it happen. In the words of Andy Warhol: “They always say time changes things, but you actually have to change them yourself.”
The Law Firm Behind the Survey
This survey was created by Gibson Dunn, an 1,000 plus attorney firm with offices around the world. Gibson Dunn started a practice group earlier this year that they call Electronic Discovery and Information Law. A quick review of their website shows that none of the four partners who chair the firm’s group are full-time e-discovery lawyers. They are instead accomplished trial lawyers in various fields. But the Vice-Chair of the group, an attorney promoted to an Of Counsel position because of her work in this field, Farrah Pepper, is a full-time professional in electronic discovery. The firm’s press release explains that she was the driving force behind the formation of this new practice group. As Andy Warhol said: “It’s not what you are that counts, it’s what they think you are.”
Farrah Pepper and her group did an excellent job of research and analysis of 103 e-discovery opinions issued between January 1st and June 30th 2010. This does not purport to be exhaustive list. In fact, they do not share how they selected these cases. This is one suggestion I have for them to improve the year-end report, which they promise to prepare and share for all of 2010.
As the graph from the report indicates, the most popular sanction remains costs and fees. They were awarded in 67% of the cases. The second most popular is an adverse inference instruction, which is typically a death-blow. Five percent (one case) was an outright dismissal. All attorneys should pay special attention to the fact that counsel were sanctioned 10% of the time.
I predict that 10% rate will go up. It will go up because the old-liners who brag about how aggressive they are and market themselves as aggressive thinkers will continue to get caught. As Warhol said: “I don’t know where the artificial stops and the real starts.” Judges and opposing counsel are often forced to find out.
Eventually the rate will turn down again as counsel learn to channel and control their aggression and play by the rules. I dream of the day when lawyers will brag about being game-changing cooperative thinkers. Again, to quote Warhol: “And you live in your dream America that you’ve custom-made from art and schmaltz and emotions just as much as you live in your real one.”
The survey shows that bad lawyers who refuse to cooperate, or simply do not know how, continue to plague the system and drive these sanction cases. Their kind of traditional stale thinking is often a disservice to their clients. As the report notes:
Courts continue to urge counsel to avoid or resolve discovery disputes through cooperation, often explicitly relying on The Sedona Conference® Cooperation Proclamation (“Cooperation Proclamation”). See Home Design Servs., Inc. v. Trumble, 09-cv-00964, 2010 WL 1435382, at *5 (D. Colo. Apr. 9, 2010) (Shaffer, Mag. J.) (quoting Cooperation Proclamation and stating that counsel “bear a professional responsibility to conduct discovery in a diligent and candid manner”); JSR Micro, Inc. v. QBE Ins. Corp., C-09-03044, 2010 WL 1338152, at *3 (N.D. Cal. Apr. 5, 2010) (Laporte, Mag. J.) (citing Cooperation Proclamation in holding that proper response to uncertainty in definition of term in 30(b)(6) notice would have been to meet and confer rather than “to unilaterally assume a narrow interpretation”); Cartel Asset Mgmt v. Ocwen Fin. Corp., 01-cv-01644, 2010 WL 502721, at *14 (D. Colo. Feb. 8, 2010) (Shaffer, Mag. J.) (instructing counsel “to work together consistent with . . . The Cooperation Proclamation“); Bldg. Erection Servs. Co. v. Am. Bldgs. Co., 09-2104, 2010 WL 135213, *1 (D. Kan. Jan. 13, 2010) (Waxse, Mag. J.) (directing counsel to read Cooperation Proclamation to understand their obligations to work cooperatively).
Even when not specifically citing the Cooperation Proclamation, courts encouraged parties to reach agreement on solutions to e-discovery problems. See, e.g., Burt Hill, Inc. v. Hassan, No. Civ. A. 09-1285, 2010 WL 419433, at *8, *10 (W.D. Pa. Jan. 29, 2010) (Bissoon, Mag. J.) (ordering parties to meet and confer on scope of defendants’ request and search terms); Ross v. Abercrombie & Fitch Co., Nos. 2:05-cv-0819, et al., 2010 WL 1957802, at *13 (S.D. Ohio May 14, 2010) (Kemp, Mag. J.) (ordering parties to meet and confer to devise search protocol).
The report makes it obvious that in the world of e-discovery at least, true innovation requires fresh cooperative thinking, not the same old aggressive approaches. But that my friend is a big change. And as Warhol, a true innovator said:
When people are ready to, they change. They never do it before then, and sometimes they die before they get around to it. You can’t make them change if they don’t want to, just like when they do want to, you can’t stop them.
2010 Mid-Year Trends in Preservation
The survey found that judges are continuing to emphasize the duty to preserve ESI, and that this duty may be triggered before the filing of a complaint. See, e.g., Pension Comm., 2010 WL 184312, at *4 (noting that plaintiff’s ability to control timing of lawsuit can trigger plaintiff’s duty to preserve evidence prior to litigation); Crown Castle USA Inc. v. Fred A. Nudd Corp., No. 05-CV-6163T, 2010 WL 1286366, at *6, 10 (W.D.N.Y. Mar. 31, 2010) (Payson, Mag. J.) (plaintiff’s duty to preserve documents arose when plaintiff began labeling communications as privileged and hired litigation counsel, which was several months before suit was filed).
The report also notes that this duty to preserve goes beyond the obvious documents, such as email and attachments, and Office prodcuts, into what Gibson Dunn’s Farrah Pepper calls “outlier ESI.” See: “Honey, I Forgot the Cell Phone: The 411 on ‘Outlier’ ESI.” By this she and report mean instant messages, texts, flash drives, personal emails, and the like. To support this proposition, which by the way I agree with, the report cites: OCE N. Am., 2010 U.S. Dist. LEXIS 25523, at *18 (duty to preserve instant messages); Passlogix, 2010 WL 1702216, at *24, 28 (duty to preserve Skype messages); Wilson, 2010 WL 1712236, at *2 (duty to preserve USB flash drive). This reminds me of another Andy Warhol saying: “An artist is somebody who produces things that people don’t need to have.”
2010 Mid-Year Trends in Search
Perhaps the most interesting part of the survey/report pertained to search where it was noted that “So far this year, several courts have refused to compel productions where the requesting party could not justify its proposed search terms. See, e.g., Seger v. Ernest-Spencer, Inc., No. 8:08CV75, 2010 WL 378113, at *9 (D. Neb. Jan. 26, 2010) (Thalken, Mag. J.) (denying motion to compel where defendant failed to show relevance of information sought by each of its 24 proposed search terms); Bellinger v. Astrue, CV-06-321 (CBA), 2010 WL 1270003, at *6-7 (E.D.N.Y. Apr. 1, 2010) (Gold, Mag. J.) (denying motion to compel where plaintiff offered no reason for propounding broad range of search terms long after initial searches were conducted and results culled).
The report also noted that several courts refused to take an active role in the design of search terms or specific search methodology. I certainly agree with these courts. This is a difficult task that requires qualified professionals with training, background and experience in search. How many judges are full-time e-discovery professionals? They should not be asked to do this. Lawyers should either take the time needed to learn this subject (thousands of hours) and do it right, or they should bring in an outside expert who can. Back to the report, it has this to say on the subject:
In a dispute over keyword search techniques, one court observed that “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.” Eurand, Inc. v. Mylan Pharms., Inc., 266 F.R.D. 79, 84 (D. Del. Apr. 13, 2010) (Thynge, Mag. J.). While the court ordered the producing party to conduct another search, it refused to “enter the wilderness of keyword search usage and is not directing the appropriate search terms for plaintiffs to employ.” Id. at 85 n.31. This echoes similar discomfort expressed last year in William A. Gross Constr. Assocs. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135-36 (S.D.N.Y. 2009) (Peck, Mag. J.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, Mag. J.)
Edelen v. Campbell Soup Co.
Another case the report briefly mentions is Edelen v. Campbell Soup Co., 265 F.R.D. 676, 683, 692-93 (N.D. Ga. 2010). I think this employment discrimination case bears closer attention. But then again, like Andy Warhol, “I like boring things.” There are a number of interesting (to me) issues here. For one, the plaintiff sought sanctions against the defendant employer for designating too many documents as confidential. Talk about a frivolous motion! The defendants explained “that a large number of documents had to be marked confidential because they contained the personnel files of numerous employees not party to the lawsuit.” The motion was denied by the Magistrate Judge, then appealed to the District Court Judge J. Owen Forrester. Judge Forrester affirmed noting “that Plaintiff had not pointed to any document in particular that he felt was improperly designated. Reminds me of another Warhol quote: “I believe in low lights and trick mirrors.”
The plaintiff in Edelen also appealed the Magistrate’s denial of his motion to declare that there had been a waiver of attorney-client privilege as to certain emails that were inadvertently produced. The emails were from H.R. managers to in-house counsel and sought legal advice. The Magistrate found the review was reasonable and so denied “Plaintiff’s motion for sanctions for Defendants’ voluntary production of allegedly privileged documents.” The review was found to be reasonable because: “Defendants had three levels of attorneys review their production and only four pages out of 2000 were inadvertently produced.” Again, the appeal raised no new grounds and the decision was summarily affirmed. As Andy puts it: “Isn’t life a series of images that change as they repeat themselves?”
But wait, there were still more Campbell Soup contentions for Judge Forrester to deal with. Plaintiff argued that defendants should have been held in contempt for their failure to meet and confer with plaintiff’s counsel as the Magistrate had instructed. One can understand the reluctance to meet, but the Magistrate Judge found that the parties had in fact met and conferred as ordered, but reached an impasse. I have heard that argument before (if you can even call it that). If you do not meet and agree with me then you obviously did not meet and confer in good faith. Sorry Charlie, parties can agree to disagree. The good faith or not is detectable by the actual conduct, like filing frivolous motions, and frivolous appeals when those motions are not granted. Naturally Judge Forrester affirmed the Magistrate again.
But wait, there’s more. The next argument by the plaintiff is so sketchy, that I just have to quote Judge Forrester’s description of it:
Plaintiff states his counsel was required to spend time responding to improper motions by Defendants and yet Plaintiff was awarded no attorney’s fees. Plaintiff contends, therefore, that the sanction of Plaintiff’s counsel for failure to comply with a discovery order related to electronically stored information “at the same time refusing Plaintiff’s meritorious motions for attorney’s fees suggests or demonstrates that the standard for awarding attorney’s fees appears to be one-sided.” See Objections, at 14.
What was that again? It almost sounds like the plaintiff is now proceeding pro se or something. Judge Forrester responded to that so-called argument by saying:
Plaintiff’s objections are too generalized for review. The fact that Defendants were awarded attorney’s fees in one circumstance and Plaintiff was not in another is not a sufficient basis upon which to challenge the denial of attorney’s fees.
Judge Forrester next considered the plaintiff’s two Rule 30(b)(6) notices. Each was 40 pages long and contained 120 topics. Naturally the defendant objected as over-broad. Judge Forrester agreed saying: “It is not difficult to conclude that such notices are unreasonable in a single plaintiff employment discrimination action.”
Of course, there is still more. Plaintiff also made requests for production of ESI. You knew that was coming, I’m sure. Here is the court’s description of what happened, where the only thing surprising at this point is that he didn’t ask for 500 search terms:
Plaintiff then proposed a request that encompassed 55 custodians and 50 search terms over a three-year period. Defendants objected to this proposal noting that for 2006 alone, such a request would produce 474,456 pages of documents. Defendants proposed narrower search terms and fewer custodians. Plaintiff never filed objections to this proposal and the court directed Defendants to conduct the search as they proposed.
But still, even though he did not object at the time, the plaintiff appeals the Magistrates order and argues that:
Defendants’ simple cry of “burdensome” is factually unsupported. Plaintiff argues that the search terms proposed by him were reasonable and should have been adopted by the Magistrate Judge.
Pretty persuasive argument, huh? Here is Judge Forrester’s response, which shows far more patience that I would have had at this point:
Based on Defendants’ proffer as to the number of documents that would be generated by Plaintiff’s proposed electronic search, the Magistrate Judge had a sufficient factual basis upon which to determine that Plaintiff’s electronically stored information document request should be narrowed.
Plaintiff’s Go Fish approach is a model of inefficiency. See: The Multi-Modal “Where’s Waldo?” Approach to Search and My Mock Debate with Jason Baron, and Child’s Game of “Go Fish” is a Poor Model for e-Discovery Search. The actions of plaintiff’ and his counsel in this case help explain why my preferred Where’s Waldo approach to search put the producer in charge of search and limits the requesting party’s input. It also puts proportionality front and center, which is another trend the survey notes.
2010 Mid-Year Trends in Proportionality
The Gibson Dunn report has a good section on proportionality. The report concludes that there is a growing awareness in courts about the burdens associated with collecting, searching and producing ESI. It recommends that claims of expense and burden be supported by technical consultants and cites to: Universal Delaware, Inc. v. Comdata Corp., 07-1078, 2010 WL 1381225, *7 (E.D. Pa. Mar. 31, 2010) (Perkin, Mag. J.) (opinion of “electronic evidence consultant” relied upon for advice on construction of least-expensive search database); Seger, 2010 WL 378113, at *8 (affidavit from “the Director of Information Technology and Architecture” relied upon to show that the production requests were “overly broad” and “costly”); Rodriguez-Torres v. Gov’t Dvlp’t Bank of Puerto Rico, 265 F.R.D. 40, 44 (D.P.R. Jan. 20, 2010) (consultant’s report relied upon to show cost of producing requested ESI).
Here is the report’s conclusion based on analysis of the first six months of 2010:
Where litigants made a sufficient showing of undue burden–e.g., that the expense was disproportionate to the anticipated benefit–courts denied discovery. See, e.g., Rodriguez-Torres, 265 F.R.D. at 44 (denying plaintiff’s motion to compel production of emails over 3-year period on grounds that “the ESI requested is not reasonably accessible because of the undue burden and cost”). Courts also ordered limitations on the number of search terms, the number of custodians, and the length of time covered. See, e.g., Edelen, 265 F.R.D. at 693; Rosenbaum v. Becker & Poliakoff, P.A., 08-CV-81004, 2010 WL 623699, at *9 (S.D. Fla. Feb. 23, 2010) (Johnson, Mag. J.) (applying “rule of proportionality” to limit defendant’s search for responsive documents to 6-month period, rather than plaintiff’s requested 18-month period).
As Warhol said: “Art is what you can get away with.”
2010 Mid-Year Trends in Social Networking and E-Discovery
I am not going to report on all of the topics the survey/report covers, but one more bears examination here, namely the current rage of social media discovery. Here is their conclusion, which I generally agree with:
Information found on social networking sites continues to regularly appear as evidence in courtrooms around the country in both civil and criminal cases. … see also Partee v. United Recovery Group, No. CV 09-9180, 2010 WL 1816705, at *2 (C.D. Cal. May 3, 2010) (introducing evidence from plaintiff’s MySpace page); Zamecnik v. Indian Prairie Sch. Dist. No. 204 Bd. of Educ., No. 07 C 1586, 2010 WL 1781771, at *6 (N.D. Ill. Apr. 29, 2010) (noting number of people joining Facebook page as evidence); United States v. Gagnon, No. 10-52-B-W, 2010 WL 1710066, at *3 (D. Me. Apr. 23, 2010) (Kravchuk, Mag. J.) (accepting evidence from Facebook page); Sedie v. United States, No. C-08-04417, 2010 WL 1644252, at *23 (N.D. Cal. Apr. 21, 2010) (Laporte, Mag. J.) (introducing evidence from plaintiff’s MySpace and Facebook pages to dispute personal injury claims); Steinberg v. Young, No. 09-11836, 2010 WL 1286606, at *7-8 (E.D. Mich. Mar. 31, 2010) (accepting evidence from LinkedIn profile); United States v. Beckett, No. 09-10579, 2010 WL 776049, at *2 (11th Cir. Mar. 9, 2010) (accepting evidence from MySpace page).
Courts that have considered the issue acknowledge that discovery from social networking sites may carry different privacy concerns than traditional discovery. In EEOC v. Simply Storage Management, LLC, No. 1:09-cv-1223 (S.D. Ind. May 11, 2010) (Lynch, Mag. J.), the defendant sought discovery from the plaintiffs’ Facebook and MySpace accounts, because plaintiffs’ “emotional health” was in issue. Id. at 3. The court allowed the discovery, observing that “[i]t is reasonable to expect severe emotional or mental injury to manifest itself in some [social networking] content.” Id. at 8. Plaintiffs and defendant disagreed on the scope of information to be discovered, with plaintiffs fearing that the information discovered could embarrass them. Id. at 12. The court discounted this argument, noting that the production of information posted to Facebook or MySpace had already been shared “with at least one other person through private messages or a larger number of people through postings.” Id. In another case where a party raised privacy concerns about the public dissemination of photographs she had already posted to her Facebook account, the magistrate judge offered to create a Facebook account for himself “[i]f [the parties] will accept the Magistrate Judge as a ‘friend’ on Facebook for the sole purpose of reviewing photographs and related comments in camera.” Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010) (Brown, Mag. J.).
The Gibson Dunn 2010 Mid-Year Electronic Discovery and Information Law Update provides discovery professionals with yet another valuable legal research tool. The price is right too. They ask us all to “stay tuned” for their 2010 Year-End Report. I for one will do that. As mentioned, I would like to know more about the research and selection that goes into the survey. It would also be helpful to have a chart of all of the cases with issue demarkation, or maybe by Circuit. Kroll and Fullbright look out, there is yet another annual e-discovery survey and report on the scene.
Please feel free to leave a comment about this survey, cooperation, game changers, the Campbell Soup case, social networking, your favorite Warhol quote or image, or whatever. As Andy Warhol put it: “In the future, everybody will be world famous for fifteen minutes.” Now’s your chance for about 30 seconds of that.