Responding Party’s Complaints of Financial Burden of Document Review Were Unsupported by the Evidence, Any Evidence

August 5, 2018

One of the largest cases in the U.S. today is a consolidated group of price-fixing cases in District Court in Chicago. In Re Broiler Chicken Antitrust Litigation, 290 F. Supp. 3d 772 (N.D. Ill. 2017) (order denying motions to dismiss and discussing the case). The consolidated antitrust cases involve allegations of a wide spread chicken price-fixing. Big Food Versus Big Chicken: Lawsuits Allege Processors Conspired To Fix Bird Prices (NPR 2/6/18).

The level of sales and potential damages are high. For instance, in 2014 the sales of broiler chickens in the U.S. was $32.7 Billion. That’s sales for one year. The classes have not been certified yet, but discovery is underway in the consolidated cases.

The Broiler Chicken case is not only big money, but big e-discovery. A Special Master (Maura Grossman) was appointed months ago and she developed a unique e-discovery validation protocol order for the case. See: TAR for Smart Chickens, by John Tredennick and Jeremy Pickens that analyzes the validation protocol.

Maura was not involved in the latest discovery dispute where, Agri Stats, one of many defendants, claimed a request for production was too burdensome as to it. The latest problem went straight to the presiding Magistrate Judge Jeffrey T. Gilbert who issued his order on July 26, 2018. In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. 7/26/18).

Agri Stats had moved for a protective order to limit an email production request. Agri Stats claimed that the burden imposed was not proportional because it would be too expensive. Its lawyers told Judge Gilbert that it would cost between $1,200,000 and $1,700,00 to review the email using the keywords negotiated.

Fantasy Hearing

I assume that there were hearings and attorney conferences before the hearings. But I do not know that for sure. I have not seen a transcript of the hearings with Judge Gilbert. All we know is that defense counsel told the judge that under the keywords selected the document review would cost between $1,200,000 and $1,700,000, and that they had no explanation on how the cost estimate was prepared, nor any specifics as to what it covered. Although I was not there, after four decades of doing this sort of work, I have a pretty good idea of what was or might have been said at the hearing.

This representation of million dollar costs by defense counsel would have gotten the attention of the judge. He would naturally have wanted to know how the cost range was calculated. I can almost hear the judge say from the bench: “$1.7 Million Dollars to do a doc review. Yeah, ok. That is a lot of money. Why so much counsel? Anyone?” To which the defense attorneys said in response, much like the students in Ferris Beuller’s class:

“. . . . . .”

 

Yes. That’s right. They had Nothing. Just Voodoo Economics

Well, Judge Gilbert’s short opinion makes it seem that way. In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. 7/26/18).

If a Q&A interchange like this happened, either in a phone hearing, or in person, then the lawyers must have said something. You do not just ignore a question by a federal judge. The defense attorneys probably did a little hemming and hawing, conferred among themselves, and then said something to the judge like: “We are not sure how those numbers were derived, $1.2M to $1.5M, and will have to get back to you on that question, Your Honor.” And then, they never did. I have seen this kind of thing a few times before. We all try to avoid it. But it is even worse to make up a false story, or even present an unverified story to the judge. Better to say nothing and get back to the judge with accurate information.

Discovery Order of July 26, 2018

Here is a quote from Judge Gilbert’s Order so you can read for yourself the many questions the moving party left unanswered (detailed citations to record removed; graphics added):

Agri Stats represents that the estimated cost to run the custodial searches EUCPs propose and to review and produce the ESI is approximately $1.2 to $1.7 million. This estimated cost, however, is not itemized nor broken down for the Court to understand how it was calculated. For example, is it $1.2 to $1.7 million to review all the custodial documents from 2007 through 2016? Or does this estimate isolate only the pre-October 2012 custodial searches that Agri Stats does not want to have to redo, in its words? More importantly, Agri Stats also admits that this estimate is based on EUCPs’ original proposed list of search terms. But EUCPs represent (and Agri Stats does not disagree) that during their apparently ongoing discussions, EUCPs have proposed to relieve Agri Stats of the obligation to produce various categories of documents and data, and to revise the search terms to be applied to data that is subject to search. Agri Stats does not appear to have provided a revised cost estimate since EUCPs agreed to exclude certain categories of documents and information and revised their search terms. Rather, Agri Stats takes the position that custodial searches before October 3, 2012 are not proportional to the needs of the case — full stop — so it apparently has not fully analyzed the cost impact of EUCPs’ revised search terms or narrowed document and data categories.

The Court wonders what the cost estimate is now after EUCPs have proposed to narrow the scope of what they are asking Agri Stats to do. (emphasis added) EUCPs say they already have agreed, or are working towards agreement, that 2.5 million documents might be excluded from Agri Stats’s review. That leaves approximately 520,000 documents that remain to be reviewed. In addition, EUCPs say they have provided to Agri Stats revised search terms, but Agri Stats has not responded. Agri Stats says nothing about this in its reply memorandum.

EUCPs contend that Agri Stats’s claims of burden and cost are vastly overstated. The Court tends to agree with EUCPs on this record. It is not clear what it would cost in either time or money to review and produce the custodial ESI now being sought by EUCPs for the entire discovery period set forth in the ESI Protocol or even for the pre-October 3, 2102 period. It seems that Agri Stats itself also does not know for sure what it would have to do and how much it would cost because the parties have not finished that discussion. Because EUCPs say they are continuing to work with Agri Stats to reduce what it must do to comply with their discovery requests, the incremental burden on what Agri Stats now is being asked to do is not clear.

For all these reasons, Agri Stats falls woefully short of satisfying its obligation to show that the information [*10] EUCPs are seeking is not reasonably accessible because of undue burden or cost.

Estimations for Fun and Profit

In order to obtain a protective order you need to estimate the costs that will likely be involved in the discovery from which you seek protection. Simple. Moreover, it obviously has to be a reasonable estimate, a good faith estimate, supported by the facts. The Brolier Chicken defendant, Agri Stats, came up with an estimate. They got that part right. But then they stopped. You never do that. You do not just throw up a number and hope for the best. You have to explain how it was derived. Blushing at any price higher than that is not a reasonable explanation, but is often honest.

Be ready to explain how you came up with the cost estimate. To break down the total into its component parts and allow the “Court to understand how it was calculated.” Agri Stats did not do that. Instead, they just used a cost estimate of between $1.2 to $1.7 million. So of course Agri Stats’ motion for protective order was denied. The judge had no choice because no evidence to support the motion was presented, neither factual or expert evidence. There was no need for Judge Gilbert to go into the secondary questions of whether expert testimony was also needed and whether it should be under Rule 702. He got nothing remember. No explanation for the $1.7 Million.

The lesson of the latest discovery order in Broiler Chicken is pretty simple. In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. 7/26/18). Get a real cost estimate from an expert. The expert needs to know and understand document review, search and costs of review. They need to know how to make reasonable search and retrieval efforts. They also need to know how to make reliable estimates. You may need two experts for this, as not all have expertise in both fields, but they are readily available. Many can even talk pretty well too, but not all! Seriously, everybody knows we are the most fun and interesting lawyer subgroup.

The last thing to do is skimp on an expert and just pull out a number from your hat (or your vendor’s hat) and hope for the best.

This is federal court, not a political rally. You do not make bald assertions and leave the court wondering. Facts matter. Back of the envelope type guesses are not sufficient, especially in a big case like Broiler Chicken. Neither are guesstimates by people who do not know what they are doing. Make disclosure and cooperate with the requesting party to reach agreement. Do not just rush to the courthouse hoping to  dazzle with smoke and mirrors. Bring in the experts. They may not dazzle, but they can get you beyond the magic mirrors.

Case Law Background

Judge Paul S. Grewal, who is now Deputy G.C. of Facebook, said quoting The Sedona Conference in Vasudevan: There is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work.Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2012 US Dist LEXIS 163654 (ND Cal Nov 15, 2012) (quoting The Sedona Conference, Best Practices Commentary on the Use of Search and Information and Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 208 (2007). There is also no magic to the art of estimation, no magic to calculating the likely range of cost to search and retrieve the documents requested. Judge Grewal refused to make any decision in Vasudevan without expert assistance, recognizing that this area is “fraught with traps for the unwary” and should not be decided on mere arguments of counsel.

Judge Grewal did not address the procedural issue of whether Rule 702 should govern. But he did cite to Judge Facciola’s case on the subject, United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). Here Judge Facciola first raised the discovery expert evidence issue. He not only opined that experts should be used, but that the parties should follow the formalities of Evidence Rule 702. That governs things such as whether you should qualify and swear in an expert and follow otherwise follow Rule 702 on their testimony. I discussed this somewhat in my earlier article this year, Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use.

Judge Facciola in O’Keffe held that document review issues require expert input and that this input should be provided with all of the protections provided by Evidence Rule 702.

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.

Conclusion

In the Boiler Chicken Antitrust Order of July 27, 2018, a motion for protective order was denied because of inadequate evidence of burden. All the responding party did was quote a price-range, a number presumably provided by an expert, but there was no explanation. More evidence was needed, both expert and fact. I agree that generally document review cost estimation requires opinions of experts. The experts need to be proficient in two fields. They need to know and understand the science of document search and retrieval and the likely costs for these services for a particular set of data.

Although all of the formalities and expense of compliance with Evidence Rule 702 may be needed in some cases, it is probably not necessary in most. Just bring your expert to the attorney conference or hearing. Yes, two experts may well disagree on some things, probably will, but the areas of agreement are usually far more important. That in turn makes compromise and negotiation far easier. Better leave the technical details to the experts to sort out. That follows the Rule 1 prime directive of “just, speedy and inexpensive.” Keep the trial lawyers out of it. They should instead focus and argue on what the documents mean.

 

 

 


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.

 


Project Cost Estimation Is Key To Opposing ESI Discovery as Disproportionately Burdensome Under Rule 26(b)(1)

May 6, 2018

If you are opposing ESI discovery as over-burdensome under Rule 26(b)(1), then you MUST provide evidence of the economic burden of the requested review. You cannot just say it is over-burdensome. Even if it seems obvious, you must provide some metrics, some data, some hard evidence to back that up. That requires the ability to estimate the costs and burdens involved in a document review. In the old days, the nineties, almost every litigator could estimate the cost of a paper review. It was not a tough skill. But today, where large volumes of ESI are common, everything is much more complicated. Today you need an expert to accurately and reliably estimate the costs of various types of ESI reviews.

Requiring proof of burden is nothing new to the law, yet most lawyers today need outside help to do it, especially in large ESI projects. For example, consider the defense team of lawyers representing the City of Chicago and other defendants in a major civil rights case with lots of press, Mann v. City of Chicago, Nos. 15 CV 9197, 13 CV 4531, (N.D. Ill. Sept. 8, 2017); Chicago sued for ‘unconstitutional and torturous’ Homan Square police abuse (The Guardian, 10/19/15). They did not even attempt to estimate the costs of the review they opposed. They also failed or refused to hire an expert who could do that for them. Sine they had no evidence, not even an estimate, their argument under Rule 26(b)(1) failed miserably.

Mann v. City of Chicago: Case Background

The background of the case is interesting, but I won’t go into the fact details here; just enough to set up the discovery dispute. Plaintiffs in later consolidated cases sued the City of Chicago and the Chicago police alleging that they had been wrongfully arrested, detained and abused at “off the books” detention centers without access to an attorney. Aside from the salacious allegations, it does not look like the plaintiffs have a strong case. It looks like a fishing expedition to me, in more ways than one as I will explain. With this background, it seems to me that if defendants had made any real effort to prove burden here, they could have prevailed on this discovery dispute.

The parties agreed on the majority of custodians whose ESI would be searched, but, as usual, the plaintiffs’ wanted more custodians searched, including that of the mayor himself, Rahm Emanuel. The defendants did not want to include the mayor’s email in the review. They argued, without any real facts showing burden, that the Mayor’s email would be irrelevant (a dubious argument that seemed to be a throw-away) and too burdensome (their real argument).

Here is how Magistrate Judge Mary M. Rowland summarized the custodian dispute in her opinion:

Plaintiffs argue Mayor Emanuel and ten members of his senior staff, including current and former chiefs of staff and communications directors are relevant to Plaintiffs’ Monell claim. (Id. at 5).[2] The City responds that Plaintiffs’ request is burdensome, and that Plaintiffs have failed to provide any grounds to believe that the proposed custodians were involved with CPD’s policies and practices at Homan Square. (Dkt. 74 at 1, 6). The City proposes instead that it search the two members of the Mayor’s staff responsible for liasoning with the CPD and leave “the door open for additional custodians” depending on the results of that search. (Id. at 2, 4).[3]

Another Silly “Go Fish” Case

As further background, this is one of those negotiated keywords Go Fish cases where the attorneys involved all thought they had the magical powers to divine what words were used in relevant ESI. The list is not shared, but I bet it included wondrous words like “torture” and “off the books,” plus every plaintiff’s favorite “claim.”

The parties agreed that the defendants would only review for relevant evidence the ESI of the custodians that happened to have one or more of the keyword incantations they dreamed up. Under this still all to common practice the attorneys involved, none of whom appear to have any e-discovery search expertise, the majority of documents in the custody of the defense custodians would never be reviewed. They would not be reviewed because they did not happen to have a “magic word” in them. This kind of untested, keyword filtering agreement is irrational, archaic and not a best practice in any but small cases, but that is what the attorneys for both sides agreed to. They were convinced they could guess that words were used by police, city administrators and politicians in any relevant document. It is a common delusion facilitated by Google’s search of websites.

When will the legal profession grow up and stop playing Go Fish when it comes to a search for relevant legal evidence? I have been writing about this for years. Losey, R., Adventures in Electronic Discovery (West 2011); Child’s Game of ‘Go Fish’ is a Poor Model for e-Discovery Search. Guessing keywords does not work. It almost always fails in both precision and recall. The keyword hits docs are usually filled with junk and relevant docs often used unexpected language, not to mention abbreviations and spelling errors. If you do not at least test proposed keywords on a sample custodian, then your error rate will multiply. I saw a review recently where the precision rate on keywords was only six percent, and that is with superficial feedback, i.w. – unskilled testing. You never want to waste so much attorney time, even if you are reviewing at low rates. The ninety-four irrelevant docs to find six is an inefficient expensive approach. We try to improve precision without a significant loss of recall.

When I first wrote about Go Fish and keywords back in 2010 most everyone agreed with me, even if they disagreed on the significance, the meaning and what you should do about it. That started the proportionality debate in legal search. E-Discovery search expert Judges Peck and Scheindlin joined in the chorus of criticism of negotiated keywords. National Day Laborer Organizing Network v. US Immigration and Customs Enforcement Agency, 877 F.Supp.2d 87 (SDNY, 2012) (J. Scheindlin) (“As Judge Andrew Peck — one of this Court’s experts in e-discovery — recently put it: “In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of `Go Fish’ … keyword searches usually are not very effective.” FN 113“); Losey, R., Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One (9/1/13). Don’t you love the quote within a quote. A rare gem in legal writing.

Judge Rowland’s Ruling

I have previously written about the author of the Mann v. City of Chicago opinion, Judge Mary Rowland. Spoliated Schmalz: New Sanctions Case in Chicago That Passes-Over a Mandatory Adverse Inference. She is a rising star in the e-discovery world. Judge Rowland found that the information sought from the additional custodians would be relevant. This disposed of the defendants first and weakest argument. Judge Rowland then held that Defendants did not meet the burden of proof “—failing to provide even an estimate—” and for that reason granted, in part, Plaintiffs’ motion to compel, including their request to add the Mayor. Judge Rowland reviewed all six of the proportionality factors under Rule 26(b)(1), including the importance of the issues at stake and the plaintiffs’ lack of access to the requested information.

On the relevance issue Judge Rowland held that, in addition to the agreed-upon staff liaisons, the Mayor and his “upper level staff” might also have relevant information in their email. As to the burden argument, Judge Rowland held that the City did not “offer any specifics or even a rough estimate about the burden.” Judge Rowland correctly rejected the City’s argument that they could not provide any such information because “it is impossible to determine how many emails there may be ‘unless the City actually runs the searches and collects the material.’” Instead, the court held that the defendants should have at least provided “an estimate of the burden.” Smart Judge. Here are her words:

The City argues that it will be “burdened with the time and expense of searching the email boxes of nine (9) additional custodians.” (Dkt. 74 at 5). The City does not offer any specifics or even a rough estimate about the burden. See Kleen Prods. LLC 2012 U.S. Dist. LEXIS 139632, at *48 (“[A] party must articulate and provide evidence of its burden. While a discovery request can be denied if the `burden or expense of the proposed discovery outweighs its likely benefit,’ Fed. R. Civ. P. 26(b)(2)(C)(iii), a party objecting to discovery must specifically demonstrate how the request is burdensome.”) (internal citations and quotations omitted).

As the Seventh Circuit stated in Heraeus Kulzer, GmbH, v. Biomet, Inc., 633 F.3d 591, 598 (7th Cir. 2011):

[The party] could have given the district court an estimate of the number of documents that it would be required to provide Heraeus in order to comply with the request, the number of hours of work by lawyers and paralegals required, and the expense. A specific showing of burden is commonly required by district judges faced with objections to the scope of discovery . . . Rough estimates would have sufficed; none, rough or polished, was offered.

The City argues in its sur-reply that it is impossible to determine how many emails there may be “unless the City actually runs the searches and collects the material.” (Dkt. 78-1 at 4). Still, the City should have provided an estimate of the burden. The Court is not convinced by the City’s argument about the burden.

Judge Rowland also held that the City should have addressed the “other Rule 26 factors—the importance of the issues and of the discovery in resolving the issues, and the parties’ relative access to information and their resources.” She noted that these other factors: “weigh[ed] in favor of allowing discovery of more than just the two custodians proposed by the City.”  However, the court declined to compel the search of four proposed custodians based on their “short tenure” or the “time during which the person held the position,” concluding the requested searches were “not proportional to the needs of the case.”

Judge Rowland’s opinion notes with seeming surprise the failure of the City of Chicago to provide any argument at all on the five non-economic factors in Rule 26(b)(1). I do not fault them for that. Their arguments on these points were necessarily weak in this type of case, but a conciliatory gesture, a polite acknowledgement showing awareness, might have helped sweeten the vinegar. As it is, they came across as oblivious to the full requirements of the Rule.

What Chicago Should Have Done

What additional information should the defendants have provided to oppose the search and review of the additional nine custodians, including the Mayor’s email? Let’s start with the obvious. They should have shared the total document count and GB size of the nine custodians, and they should have broken that information down on a per-custodian basis. Then they should have estimated the costs to review that many emails and attachments.

The file count information should have been easy to ascertain from the City’s IT department. They know the PST sizes and can also determine, or at least provide a good estimate of the total document count. The problem they had with this obvious approach is that they wanted a keyword filter. They did not want to search all documents of the custodians, only the ones with keyword hits. Still, that just made the process slightly more difficult, not impossible.

Yes, it is true, as defendant’s alleged, that to ascertain this supporting information, they would have to run the searches and collect the material. So what? Their vendor or Chicago IT department should have helped them with that. It is not that difficult or expensive to do. No expensive lawyer time is required. It is just a computer process. Any computer technician could do it. Certainly any e-discovery vendor. The City could easily have gone ahead and done the silly keyword filtering and provide an actual file count. This would have provided the City some hard facts to support their burden argument. It should not be that expensive to do. Almost certainly the expense would have been less than this motion practice.

Alternatively, the City could have at least estimated the file count and other burden metrics. They could have made reasonable estimated based on their document review experience in the case so far. They had already reviewed uncontested custodians under their Go Fish structure, so they could have made projections based on past results. Estimates made by projections like this would probably have been sufficient in this case and was certainly better than the track they chose, not providing any information at all.

Another alternative, the one that would have produced the most persuasive evidence, would be to load the filtered ESI of at least a sample of the nine custodians, including the Mayor. Then begin the review, say for a couple of days, and see what that costs. Then project those costs for the rest of the review and rest of the custodians. By this gold standard approach you would not only have the metrics from the data itself — the file counts, page counts, GB size — but also metrics of the document review, what it costs.

You would need to do this on the Mayor’s email separately and argue this burden separately. The Mayor’s email would likely be much more expensive to review than any of the other custodians. It would take attorneys longer to review his documents. There would be more privileged materials to find and log and there would be more redactions. It is like reviewing a CEO’s email. If the attorneys for the City had at least begun some review of Emanuel’s email, they would have been able to provide extensive evidence on the cost and time burden to complete the review.

I suspect the Mayor was the real target here and the other eight custodians were of much less importance. The defense should have gauged their response accordingly. Instead, they did little or nothing to support their burdensome argument, even with the Mayor’s sensitive government email account.

We have a chance to learn from Chicago’s mistake. Always, at the very least, provide some kind of an estimate of the burden. The estimate should include as much information as possible, including time and costs. These estimates can, with time and knowledge, be quite accurate and should be used to set budgets, along with general historical knowledge of costs and expenses. The biggest problem now is a shortage of experts on how to properly estimate document review projects, specifically large ESI-only projects. I suggest you consult with such an cost-expert anytime you are faced with a disproportionate ESI review demands. You should do so before you make final decisions or reply in writing.

 Conclusion

Mann v. City of Chicago is one of those cases where we can learn from the mistakes of others. At least provide an estimate of costs in every dispute under Rule 26(b)(1). Learn to estimate the costs of document reviews. Either that or hire an expert who can do that for you, one that can provide testimony. Start with file counts and go from there. Always have some metrics to back-up your argument. Learn about your data. Learn what it will likely cost to review that data. Learn how to estimate the costs of document reviews. It will probably be a range. The best way to do that is by sampling. With sampling you at least start the document review and estimate total costs by projection of what it has actually cost to date. There are fewer speculative factors that way.

If you agree to part of the review requested, for instance to three out of ten custodians requested, then do that review and measure its costs. That creates the gold standard for metrics of burden under Rule 26(b)(1) and is, after all, required in any objections under Rule 34(b)(2)(B)&(C). See: Judge Peck Orders All Lawyers in NY to Follow the Rules when Objecting to Requests for Production, or Else ….

For more on cost burden estimation listen to my Ed-Talk on the subject, Proportional Document Review under the New Rules and the Art of Cost Estimation.

 



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