In Part Two we consider the last seven gifts from the beloved client and how to deal with the problems and opportunities these presents present. Suggest you read Part One of this 2018 Christmas blog first. It has the full poem and discussion of the first five e-Discovery Gifts of Christmas.
What do you do
When a client sends to you
Six Gigabytes of ESI for production that They determined are the only relevant few.
The problem here is not the six gigabytes of data to produce. That is easy, routine. The problem is how that ESI was determined to be relevant. Apparently here the client did it. And if this is a corporate client, it may mean the actual person or persons who did it are unknown. Maybe the client simply asked the persons accused to pick out and send the relevant evidence of the defense. Maybe they even invited the fox into the hen-house? What were the circumstances of the identification of the six gigabytes for review? What custodians? What time filter? Other culling?
The issue here is reasonability of search effort. It arises out of Rule 26(g) and the requirement that a search in response to a request for ESI must be reasonable. Good faith is presumed under the Rules because attorneys of record in the court proceeding are in charge of the discovery effort. They have a duty to the court in which they are allowed to appear as a member of the Court’s Bar. The trial attorneys may delegate to specialized experts, to be sure, but counsel of record signing the 26(g) response is the attorney ultimately responsible.
That is the sound ethical basis for the presumption of good faith. Licensed lawyers did it, not only that, they appeared of record in the court and as such are subject to the discipline and sanctions of the court. That presumption of good faith inherent in Rule 26(g) can be overcome and rebutted in circumstances where the responsible trial attorney, and his work-product experts, do not know what happened. Other facts may suggest bad faith, even intentionally negligent efforts. Half-hearted efforts suggest no real desire to find evidence that might hurt your case. That is not good.
When this kind of gift is brought to you it should trigger a series of questions. Hopefully you turn to your trusted check-list on questions to ask. Were the PSTs of the following custodians collected? Check. Were the standard hybrid multimodal ESI searches used? Check. Who was in charge? Etc.
You audit the efforts made and analyze what additional actions, if any, may still be required to satisfy your legal and ethical responsibilities. If you are satisfied, then make the production and sign the Rule 26(g) certification. You are counsel of record and it is your license to practice law on the line.
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What do you do
When a client sends to you
Seven important emails that the opposing party omitted from the production to you?
What a great gift. This may be the evidence you need, literally, to prove that the other side is cheating on their discovery obligations, maybe even trying to hide the ball. That is game-changing news. Verify and authenticate first, as we will discuss with twelfth present. After you authenticate, then you may want to keep it secret for a while. See if gotcha-traps of counter-discovery might be possible to get them to lie even more, to dig the grave deeper. This is in accord with the general examination principle that when a witness is lying, go along with it, pretend you believe, and maybe they will embellish further under oath. Then, when you have their detailed lie as sworn testimony under oath, confront them with the lies. Every good lawyer deserves a Perry Mason moment. Every good liar in turn deserves their own Mueller moment of impeachment.
Use this information to try to flush out any fraud. And if none exists, which fortunately is still typical, and this prior omission by the producing party is usually an innocent (although colossal) mistake, then see if you can find out what happened.
Perhaps other documents important to the case still remain to be found? The aim is to force a redo and cure of the error, all to be paid for by the erring, producing party.
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What do you do
When a client sends to you
Eight i-Phone Pluses with dirty pictures to view?
Get it into forensic hands as soon as possible. Do not let any metadata be altered accidentally. Let an expert find the pictures on the phone and get them into a database for your review. Limit your work to the lawyer part, decide if they are “dirty” as the client said, and what that means to your case. Are they what you expected? Hope for? Feared? Or did you have no idea any evidence like this would be forthcoming, not to mention why? The forensic player must be included, must be inserted into the start of the chain of custody. That way you can make sure that the evidence coming out of these eight i-Phones is admissible.
What if those eight phones, which are in fact all sophisticated computers with large flash drives, have hundreds of thousands of photo files on them? What if the search for the relevant few images of any significance to the case would be a long and laborious process? Traditional TAR will not help with pure image search because it searches text alone. Is there smart facial recognition software that might be useful? Other software? Alternative to straight linear review? Is this really worth the effort? What suggestions do others have? Client? Opposing counsel? The court?
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What do you do
When a client sends to you
Nine portable hard-drives connected to custodian CPUs?
Same drill as with the iPhones, get all this data, and remember, there could be hundreds of millions of files with that many USB drives, into a forensic engineer’s hands ASAP. Preserve, cull and get some of the ESI into a database for review. Find the needles of important ESI in the vast haystacks of irrelevant data.
Think about the review, the cost and most prudent approach. Design a search process for this particular data that uses your standard tools and methods to meet the needs of the case. Analyze the proportionality factors. Improve your understanding of the search target. That is critical. How does that impact the outcome of the dispute? Do the math and start getting your hands into the digital mud, all at once, and all ASAP. Prevalence samples anyone? How many needles are there? That’s e-discovery for you, where all the effort should be front-loaded.
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What do you do
When a client sends to you
Ten back-up tapes with no labels to view?
First thing to do is get the labels and all other information from the client about these tapes. You don’t want to pay an outside vendor to tell you what is on the client’s tapes, but that is always possible if they are truly a mystery. Do they have to be preserved? Do they also have to be searched? Why?
Duplicate ESI is not relevant. You only need produce one copy of the same document. Thus back-up tapes are not usually discoverable under Rule 26(b)(2)(B). After all, they just contain copies. However, sometimes the back-up tape may be the only place where a file still remains. If that is the situation in your case, then these files need to be saved. They may also need to be retrieved and searched. A common example of this might include the entire Mailbox collection of an employee, key custodian, who left the company before the hold. All email and attachments of this key custodian could have been deleted in the ordinary course, except for copies on certain backup tapes. In this situation you may have to restore that one custodian’s PST files from the tape and review them.
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What do you do
When a client sends to you
Eleven Custodians with unfiltered data to purview?
Rejoice. The data is unfiltered so your techs get to do so, not the client’s IT. This way you can be sure that it is done right. You also do not have to worry about hidden filters, ones you did not know about or approve in advance. If it is global deduplication, for instance, no problem. You would want to do that anyway. But if it is keyword filtering, then look out. Easy to make mistakes at that, especially when not done by IT specialists. Better to test out keywords before you use them to eliminate ESI from review.
Testing and refining keywords is legal work because relevance is determined by legal analysis, not computer nor technical analysis. IT is notorious for sometimes exceeding their bounds and thinking they know best. When it comes to the Law, to the requirements of an adequate search, to relevance, client IT is out of their depth. That is your role as lawyer in a well functioning e-Discovery Team. Not sure, take a refresher of the TAR Course.
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What do you do
When a client sends to you
Twelve Word Docs on a hard drive
That are too good to be true?
When a “too good to be true” electronic documents are your present, inspect them very carefully, especially the metadata. It might be a fake. The smoking gun might be smoke and mirrors. Question your client about the background and origin of all ESI, but especially hot documents that appear unexpectedly and late in a case. You have a legal and ethical duty to do so. See Eg: Lawrence v. City of N.Y., Case No. 15cv8947 (SDNY, 7/27/18) copy linked (Judge William Pauley) (“This Opinion & Order showcases the importance of verifying a client’s representations.”). Also see: Model Rule of Professional Conduct 3.3, Duty of Candor Toward the Tribunal:
A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; … (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
The official Comment to Rule 3.3 has some good insights into the purpose of this requirement:
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.
6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.
For more on this subject, see my recent article Judge Pauley Reminds Lawyers Of Their Duty To Verify Client Representations (e-Discovery Team, 10/14/18).
