e-discovery in employment litigation -...

E-Discovery in Employment LitigationIdentifying, Preserving, Collecting and Producing Electronically Stored Information

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WEDNESDAY, JANUARY 9, 2013

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Danuta Bembenista Panich, Shareholder, Ogletree Deakins, Indianapolis

Niloy Ray, EDiscovery Counsel, Littler Mendelson, Chicago

Jennifer Mott Williams, Morgan Lewis & Bockius, Houston

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Title Goes Here

A Strafford Publication Webinar

January 9, 2013

Presented By:

E-Discovery in Employment Litigation

Presented By:

Danuta B. PanichOgletree Deakins Nash Smoak & Stewart, P.C.

AGENDA

� Set the stage

� Commonly requested ESI in employment matters

� Meeting preservation challenges & defending the preservation processdefending the preservation process

� Bring Your Own Device to work issues

� Managing privacy concerns

� Proportionality

5

DISCOVERY IN EMPLOYMENT LITIGATION TENDS TO BE

A ONE-WAY STREETA ONE-WAY STREET

6

VOLUME IS A PROBLEM

� American Trial Lawyers Task Force on Discovery:

“The discovery rules in particular are impractical in that they promote full

discovery as a value above almost anything else”

7

EXPENSE IS A PROBLEM

� Cartel Asset Mgt. v. Ocwen Financial Corporation,

2009 WL 2242395 (D. Colo. 2009):

“The discovery process necessarily imposes burdens

on the responding party”

Argument that certain discovery “would affect our

profitability and ability to serve our clients” was “the

e-discovery equivalent of a claim that the ‘sky is

falling’”

8

SPOLIATION CLAIMS ARE A PROBLEM

� 39% of ESI cases involve spoliation claims

� Standards vary� Proof of deliberate, bad faith conduct (Fla.)

� Some evidence of intentional misconduct (Tex.)

� Negligence (NY)� Negligence (NY)

Victor Stanlev, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

9

Even “accidental” deletion may=

spoliation & adverse inference

Cytec Carbon Fibers, LLC v. Hopkins,

2:11-cv-0217-RMG (D.S.C. Dec. 5,

2012)

10

COMMON INFORMATION

REQUESTS IN

EMPLOYMENT LITIGATION

11

STANDARD REQUESTS

� Personnel data and “files”

� Payroll

� Policies and procedures

� Decisional documentation� Decisional documentation

� Audits, surveys and training

� Other claims and litigation

� Investigatory materials

12

MORE DIFFICULT REQUESTS

� Communications

� Person-to-person (e-mail, instant messaging, text

messages, tweeting)

� Mass (web-pages, articles, webinars)

� Systems and information infrastructure

� Hidden or alternative use data

13

TANGENTIAL INFORMATION

� Document Retention Policies and Procedures

Jones v. Bremen High School Dist. 228, 2010 WL 2106640, *9 (N.D. ILL., 2010)

� What the Company has done to preserve and collect relevant ESIcollect relevant ESI

In re eBay Seller Antitrust Litigation, 2007 WL 2852364 at *2 (N.D. Cal., 2007)

Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga., 2007)

Cannata v. Wyndham Worldwide Corp., 2:10-cv-00068-PMP-LRL (D. Nev. August 10, 2011)

14

FLIP-SIDE OF THE COIN: DISCOVERY FROM PLAINTIFFS

� Calendars

� Diaries

� Correspondence

� Personal records of time worked

� Job search

15

PERSONAL MEDIA

� Phone/text logs

� Personal email account activity

� Social media

EEOC v. Honeybaked Ham Co. of Georgia, 2012

WL 5430974 (D. Colo. November 7, 2012)WL 5430974 (D. Colo. November 7, 2012)

Howell v. Buckeye Ranch Inc., 2012 U.S. Dist.

LEXIS 141368 (S.D. Ohio October 1, 2012)

Mailhoit v. Home Depot USA, Inc., 2012 WL

3939063 (C.D. Cal. Sept. 7, 2012)

Mancuso v. Florida Metropolitan University Inc.,

2011 WL 310726 (S.D. Fla. January 28, 2011)

16

PRESERVATION&

DEFENSE OF DEFENSE OF PROCESS

17

THE DUTY TO PRESERVE

� From where does it come?

� To whom is it owed?

� Who can enforce it?

18

PRESERVATION TRIGGERS

� Litigation is commenced

� Litigation is reasonably anticipated

19

REASONABLE ANTICIPATION

� For Plaintiffs� Decision to litigate

� Preparatory steps

�Retaining counsel�Retaining counsel

�Making a demand

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)

20

REASONABLE ANTICIPATION

� For Defendants

� Charge (Zubulake v. UBS Warburg LLC, 220

F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”))

� Demand letter (Goodman v. Praxair Services,

Inc., 632 F.Supp.2d 494 (D.Md. 2009); Major Tours,

Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009))Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009))

� Internal complaint (Broccoli v. Echostar

Communications Corporation, 229 F.R.D. 506 (D.Md.

2005))

� Consensus belief (Zubulake IV)

� Widespread litigation in industry (Phillip M.

Adams v. Dell, Inc., 621 F.Supp. 1173 (D.Utah 2009))

21

SCOPE OF PRESERVATION

� Key Players

� “Likely to have information relevant to the events”

� Agents

� Legal Control

� Cooperative File Sharing

22

� Databases

� Other Centrally Controlled Sites

� The Cloud

� Shared Work Spaces

Custodian Controlled

ESI SOURCES

� Custodian Controlled

� PCs and Laptops

� Portable Devices and Media

� Home Computers

� BYOD

23

CHALLENGES OF HOME COMPUTERS & BYOD

� Company does not own

� Company may not control

� Company may be responsible for

preservation & production

� Employee has significant privacy interest

24

HOME COMPUTERS AND PERSONAL DEVICES

� Review policies to help determine obligations

� Collect for preservation

� Address privacy issues via collection strategystrategy

� Vendor collection

� Self collection

� Develop forward strategies

25

DEFENSE OF PROCESS TIP

� Document decisional process

� Approach to investigation

� Rationale for selecting information types

� How identified relevant custodians

� Who was interviewed� Who was interviewed

� Who is IT liaison

� Document preservation strategies chosen

26

PRESERVATION NOTICES

Should it be in writing?

Pension Committee: YES!

Jones v. Bremen High School : Not Necessarily.

Defense of Process: ABSOLUTELY

27


� Content

� Nature of claim and summary of allegations

� Relevant period and whether ongoing

� Sources and locations of data

� Types of information sought and definition of

relevancerelevance

� What recipient should do: preserve; collect;

notify others

� Methodology for required actions

� Accountability

� Certification

28


� Methodology

� Dealing with metadata

� How to create .pst folders

� How to preserve ephemeral data

� Using share drives or other shared resources� Using share drives or other shared resources

� Remote collection

� Additional distribution of notices

WARNING: Cytec Carbon Fibers, LLC v. Hopkins

29

PRESERVATION NOTICES AREN’T JUST FOR INDIVIDUAL

CUSTODIANS

Remember

System Owners & IT

30

IMPLEMENTATION

Comprehensive Plan:

Haraburda v. Arcelor Mittal USA, Inc., Haraburda v. Arcelor Mittal USA, Inc.,

2011 WL 2600756 (N.D. Ind. June 28, 2011)

31

IMPLEMENTING PRESERVATION NOTICES

� Steps after issuance

� Track certifications

� Track compliance

� Prompt remedial action

� Regular attorney oversight

� Issue reminders

� Prioritize for collection

� Address replacement custodians

� Document for defense of process

32


Remember: Notices, reminders, and

steps taken may be discoverable!

� Oleksy v. General Electric, 06-C-1245 (N.D. Ill. Oct. 3, � Oleksy v. General Electric, 06-C-1245 (N.D. Ill. Oct. 3, 2011) (even if privileged, subject to production because of spoliation)

� Chang v. United States, No. 02-2010 (D.D.C. Aug. 19, 2010) (not privileged)

� Major Tours Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009) (privileged unless spoliation)

33

ADDITIONAL CRITICAL PRESERVATION STEPS

� Automated functions� Auto-delete

� Size limits

� Back-up

Apple Inc. v. Samsung Elecs. Co., Case No.: 11-CV-01846-LHK Apple Inc. v. Samsung Elecs. Co., Case No.: 11-CV-01846-LHK (N.D. Cal. 2012)

Voom HD Holdings, LLC v Echostar Satellite, L.L.C., 2010 N.Y. Misc. LEXIS 6711, 47-50 (N.Y. Sup. Ct. Nov. 3, 2010)

Advanced Micro Devices v. Intel Corp. (In re Intel Corp. Microprocessor Antitrust Litig.), 2008 U.S. Dist. LEXIS 98898 (D. Del. May 9, 2008)

Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008)

34

ADDITIONAL PRESERVATION STEPS

� Suspension of retention period expiration

� Sometimes ephemeral system � Sometimes ephemeral system information� Access logs

� Internet use histories

� Audit trails

35

CAUTION: ARCHIVING DATA

Often undertaken to preserve without impacting system functionality.

“if a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material…then it should not be discoverable material…then it should not be entitled to shift the costs of restoring and searching the data”

Orbit One Communications, Inc. v. Numerex

Corp., et. al., 271 F.R.D. 429, 437

(S.D.N.Y. 2010) citing to Quinby v.

WESTLB AG, 245 F.R.D. 94, 104

(S.D.N.Y. 2006)

36

IS “PROPORTIONALITY” A FACTOR?

� Yes

� Victor Stanley, Inc.

� Rimkus Consulting Group, Inc. v.

Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010)

No� No

� Pippins v. KPMG LLP, 2011 WL 4701849 (S.D.

N.Y. October 7, 2011)

� Orbit One Commc'ns, Inc. v. Numerex Corp.,

271 F.R.D. 429, 436 (S.D.N.Y. 2010)

37

GOOD LUCK OUT THERE!

[email protected]

38

26(F)

CONFERENCES

REQUIREMENTS & STRATEGIES

Presented by:Presented by:Presented by:Presented by:

REQUIREMENTS & STRATEGIES

Niloy RayNiloy RayNiloy RayNiloy RayE-Discovery Counsel

Littler Mendelson, P.C.

Chicago, IL

312.795.3277

[email protected]

January 2013January 2013January 2013January 2013

RULE 26(f) MEET-&-CONFERS

BASIC RULES & EXPECTATIONS

In the electronic age, this meet and confer should include a discussion on whether each side possesses

information in electronic form, whether they intend to produce such material [and so on].

- In re Bristol-Meyers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002)

At the initial status conference, counsel must be prepared to discuss what agreements they have reached

regarding discovery of Electronically Stored Information ("ESI") and what area of disagreement they have

with regard to discovery of ESI.

-Merriman v. Minn. Life Ins. Co., 2012 U.S. Dist. LEXIS 124854 (E.D. Wisc. 2012)


PREPARATION

It appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at theIt appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at the

outset of the case. The briefing discloses that Defendants' counsel was not aware of the structure of

Defendants' computer systems until recently. It is inappropriate for Defendants to only now—three years

after the case was filed and after discovery has closed—investigate their electronic systems.

- News America Marketing v. Floorgraphics, 2012 U.S. Dist. LEXIS 76543 (D.N.J. 2012)

The court opened the door to spoliation-related discovery, ordering the deposition of a 30(b)(6) witness to

“bind the company on electronic discovery disputes.”


COOPERATION & TRANSPARENCY

If the parties are unable to telephonically conduct their conference and jointly file a Rule 26(f) report …

they will be required to attend a Rule 26(f) conference in person.

- Jacobs v. Lambda Research, 2012 U.S. Dist. LEXIS 31066 (S.D. Ohio 2012)

Cooperation … requires forgoing the short term tactical advantages afforded one party to information

asymmetry so that … parties communicate candidly enough to identify the appropriate boundaries of

discovery. … In place of gamesmanship, cooperation substitutes transparency and communication.

- "The Case for Cooperation," 10 SEDONA CONF. J. 339, 344-45 (2009)1

1 See Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431, at *2 (S.D.N.Y. Aug. 13, 2009); In re Direct Sw., Inc., Fair Labor Standards Act (FLSA) Litig., 2009 WL 2461716, at *1, 2

(E.D. La. Aug. 7, 2009); Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, No. 3:07-cv-449, 2009 WL 2243854, at *2 (S.D. Ohio July 24, 2009); Dunkin’ Donuts Franchised Rests. LLC

v. Grand Cen. Donuts, Inc., 2009 WL 1750348, at *4 (E.D.N.Y. June 19, 2009); Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 424-25, 427 (D.N.J. May 19, 2009); Newman v.

Borders, Inc., 257 F.R.D. 1, 3 (D.D.C. Apr. 6, 2009); William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. March 19, 2009); S.E.C. v.

Collins & Aikman Corp., 256 F.R.D. 403, 415 (S.D.N.Y. Jan. 13, 2009); Covad Commc’ns. Co. v. Revonet, Inc., 254 F.R.D. 147, 148-49 (D.D.C. Dec. 24 2008); Gipson v. Sw. Bell Tel.

Co., Civ. No. 08-2017, 2008 U.S. Dist. LEXIS 103822, at *4 (D. Kan. Dec. 23, 2008); Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D.

350, 353-56, 358-59, 362 (S.D.N.Y. Nov. 21, 2008); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359, 363 (D. Md. 2008).; Mancia v. Mayflower Textile Servs. Co., 253

F.R.D. 354, 363 (D. Md. 2008).


KEY STRATEGIC OBJECTIVE

“JUST, SPEEDY, AND INEXPENSIVE”


MANAGING SCOPE

the timing and

sequence of

discoverySunflower Elec.

Power Corp. v.

Sebelius, 2009 U.S.

practical

agreement on

facts truly at issue

spanning custodian set

Sebelius, 2009 U.S.

Dist. LEXIS 22775

(D. Kan. 2009)

agreement on

search terms,

date ranges,

key players

and the likeRomero v. Allstate

Ins. Co., 271 F.R.D.

96 (E.D. Pa. 2010)

phased approach

to expert

discoveryFiber Optic Designs v.

New England Pottery,

(D. Colo. 2009)

data sources

timespans


CONTROLLING PRODUCTION

Defendant has provided no reason for not producing the [ESI] in electronic format other than inconvenience

and Defendant's mistaken belief that Plaintiff's format request came after Defendant had begun production.

- Lawson v. Sun Microsystems, 2007 U.S. Dist. LEXIS 65530 (S.D. Ind. 2007)

The Court is therefore presented with a defendant in a predicament essentially of its own making. Kanbar

faces the task of sorting page by page through a mass of documents in a limited period of time. However,

this situation was largely the result of Kanbar's own actions, [including] the lack of a demand for electronic

production … . [I]ts motion to compel 3M to "organize" or "itemize" the documents is DENIED.

- 3M Co. v. Kanbar, 2007 U.S. Dist. LEXIS 45232 (N.D. Cal. 2007)

Plaintiff argues that defendant should be required to produce responsive emails in their native file format.

Defendant … argues that plaintiff did not raise the issue [at the meet-&-confer]. The parties have a mutual

obligation to discuss this issue at the [meet-&-confer]. [M]etadata for only one document will be required.

- Brinckerhoff v. Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. 2010)

Most metadata is of limited evidentiary value, and reviewing it can waste litigation resources. … ImPax has

not demonstrated a particularized need for the metadata. Therefore, [the motion to compel] is denied.

-Wyeth v. ImPax Laboratories, 248 F.R.D. 169 (D. Del. 2006)

In light of the dubious value of metadata and plaintiffs' total failure to explain its relevance to the claims

and defenses in this action, plaintiffs' application to compel its production is denied.

- Kingsway Financial v. PriceWaterhouse-Coopers, 2008 U.S. Dist. LEXIS 105222 (S.D.N.Y. 2008)


PROTECTING THE CLIENT

This lawsuit demonstrates why it is so important that parties freely discuss their ESI early in the evolution ofThis lawsuit demonstrates why it is so important that parties freely discuss their ESI early in the evolution of

a case. Had that been done … the parties might have been able to work out many, if not all, of their

differences without court involvement or additional expense, thereby furthering the "just, speedy, and

inexpensive determination" of this case. Instead, these proceedings have now been bogged down in

expensive and time-consuming litigation of electronic discovery issues only tangentially related to the

underlying merits … .

- Aguilar v. Immigration & Customs Enforcement, 255 F.R.D. 350 (S.D.N.Y. 2008)


Developing a reasonably complete discovery plan is the responsibility of both parties. The parties in the

present case did not live up to the requirements of the rule. When the lawyers in this case conferred [the ESI

at issue] should have been discussed and included in the discovery plan. It is the failure of the parties to do

[so] that brings us to this controversy. [T]he sanction indicated should … be enforced.

- Argus & Assocs. v. Prof'l Benefits Servs., 2009 U.S. Dist. LEXIS 39437 (E.D. Mich. 2009)

- [T]he Court is troubled by the nature of the parties’ efforts to “meet and confer” on specific issues.

- AZ purported to embrace the requirements of Rule 26 and the Sedona Principles. However, the reality was

to the contrary. AZ [] failed to bring in appropriate personnel to the table at appropriate times … . AZ has

been “purposefully sluggish” in making effective production. [S]anctions are warranted.

- In re Seroquel Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)

counsel’s “technical incompetence, … technical ignorance or mistake” is no defense to discovery deficiencies

- Garcia v. Berkshire Life Ins. Co., 2007 U.S. Dist. LEXIS 86639 (D. Colo.)

attorney’s “claim that he is … computer illiterate … is frankly ludicrous”

- Martin v. Northwestern Mutual, 2006 U.S. Dist. LEXIS 2866 (M.D. Fla.)

lawyer’s “inhibited ability to participate meaningfully in electronic discovery” causes reduction in fees awarded

- Chen v. Dougherty, 2009 U.S. Dist. LEXIS 131573 (W.D. Wash.)

PREDICTIVE CODING IN EMPLOYMENT LITIGATION

Morgan, Lewis & Bockius LLP

Jennifer Mott Williams

www.morganlewis.com

January 9, 2013

Predictive Coding

• What it is NOT:

– Artificial intelligence

– The end of attorneys reviewing documents

© Morgan, Lewis & Bockius LLP

– Perfect, but it is far superior to human-only, linear review

• What is it?

– Computer-Assisted Review

– Iterative, Smart, Prioritized Review

– Faster, More Accurate & Less Expensive

49

Example of a Predictive Coding Workflow

• Lawyer or team of lawyers review and code sample

documents often called the “seed set”

• Based upon the coding, the system “learns” what is

responsive/non-responsive


responsive/non-responsive

• Computer system applies the “logic” to the remaining

population, predicting documents that are likely responsive

• New suggested documents are reviewed to test the logic and

the cycle is repeated until desired levels are achieved

• Statistical validation of non-responsive ESI50

Is Predictive Coding Right For Your Case?

Keep In Mind General Discovery Principles:

1. FRCP 1 – Will predictive coding contribute to the “just,

speedy, and inexpensive” resolution of the case?


speedy, and inexpensive” resolution of the case?

2. FRCP 26 – Will predictive coding address proportionality and cost concerns?

51

Considerations to Weigh in Determining ifPredictive Coding is Right for your Case

• Client acceptance

• Type of case

• The volume of data anticipated


• The volume of data anticipated

• The type of data involved

• Amount in controversy

• Number of custodians

• Review goals

52

If Predictive Coding Is Not Right for Your Case,

You May Need to Be Prepared to Explain Why

TSI, Inc. v. Azbil Bio Vigilant, Inc. (D. Ariz.) – Joint Submission

on Predictive Coding

• Court had asked parties to consider whether predictive coding

should be used for email production


• Jointly agreed stipulated procedures were better than

predictive coding

Eorhb, Inc. v. HOA Holdings LLC (Del. Ch.) – Oct. 15, 2012

Transcript

• “I would like you all, if you do not want to use predictive

coding, to show cause why this is not a case where predictive

coding is the way to go.”53

Defensibility of Predictive Coding

• Defensibility

– Predictive coding not at issue – Humans review and determine relevancy of computer-suggested

documents assisted by Predictive Coding


documents assisted by Predictive Coding

– For documents not reviewed – Issue is sampling

– Statistical sampling widely accepted – Scientific method supported by expert testimony

54

Defensibility

• Defensibility (cont.)

– Case law growing on the use of sampling techniques

• Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)

– Court accepted the use of sampling due to the prospect of


– Court accepted the use of sampling due to the prospect of

having to restore thousands of archived data tapes.

• Mt. Hawley Ins. Co. v. Felman Prod. Inc. 2010 WL 1990555 (S.D.

W.Va. May 18, 2010)

– “Sampling is a critical quality control process that should be

conducted throughout the review.”

• In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)

– Court instructed “common sense dictates that sampling and

other quality assurance techniques must be employed to meet

requirements of completeness.”

55

Defensibility

• Defensibility (cont.)

– Endorsement by legal community

– Growing cases discussing Predictive Coding

• Da Silva Moore v. Publicis Groupe (S.D.N.Y.)


• Da Silva Moore v. Publicis Groupe (S.D.N.Y.)

• Kleen Products, LLC, v. Packaging Corporation of America (N.D.

Ill.)

• Global Aerospace Inc. v. Landow Aviation, L.P. dba Dulles Jet

Center (Vir. Cir. Ct.)

• In re: Actos Products Liability Litigation (W.D. La.)

• Federal Housing Finance Agency v. JP Morgan Chase & Co.(S.D.N.Y.)

• Eorhb, Inc. v. HOA Holdings LLC (Del. Ch.)56

Defensibility – Predictive Coding is As Accurate if Not More Accurate than Pure

Linear Review

“There is not one single measure for which manual review is significantly better than technology – assisted review.”

– Maura Grossman & Gordon Cormack, Technology Assisted Review in E-Discovery Can be More Effective and More Efficient than Exhaustive Manual Review, 17 Rich. J. L. & Tech Issue 3 (2011).


Manual Review, 17 Rich. J. L. & Tech Issue 3 (2011).

“On every measure, the performance of the two computer systems was at least as accurate… as that of a human review.”

– Herbert L. Roitblat, Ann Kershaw and Patrick Oot, Document Categorization vs. Manual Review, 61 J. of Am. Soc’y for Info. Sci. &

Tech. 70 (2010).

“Statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review.”

− Da Silva Moore v. Publicis Groupe

57

Partnering with Your Opponent

• Cooperation with the other side no matter the protocol

– Edelen v. Campbell Soup Co., 265 F.R.D. 676 (N.D. Ga. 2010) –failure to cooperate on search terms, timeframe, and number of custodians led to sanctions


• Discussion at the Rule 26(f) Conference

• Courts referencing discussion in Local Rules

– S.D.N.Y. Complex Civil Cases

• Consider “machine learning, or other advanced analytic tools”

– N.D. Cal. Guidelines for the Discovery of Electronically Stored Information

• Methods and technology for searching for relevant information, including sampling methods

58

Partnering with Your Opponent - Disclosure

• Disclosure

– Whether and when to disclose the use of Predictive Coding

– Split emerging within the profession on what level of disclosure is necessary


is necessary

– Ultimately, need to determine client’s comfort level with disclosure of confidential, irrelevant materials before full disclosure

• Potential for inviting an amended complaint

59

Review Strategies − Quick Peek

• Rule 502(d) Orders – Rajala v. McGuire Woods, LLP (D. Kan.)

– Does not require inadvertence

– Does not require reasonableness

– Does not require promptness


– Does not require promptness

• Nondisclosure & Confidentiality Agreement

“Agree not to disclose information to Co-Counsel, client, any Party, or any

third party without first obtaining written consent of [the Producing Party]” – In re Actos

Privileged information completely withheld

– In re Actos

– Da Silva Moore v. Publicis

• Logging sensitive documents

– Global Aerospace Inc. v. Landow Aviation, L.P.60

The Role Defense of Process Plays Generally

• Not the only instance where you might have to defend your process

• Rule 26(g) requires responses “to the best of the persons’ knowledge, information and belief formed after a reasonableinquiry.”

• Search Terms required defense of process


• Search Terms required defense of process

Surowiec v. Capital Title Agency, ncI., 790 F. Supp. 2d 997 (D. Ariz. 2011)

-potential searches must be quality-control tested

William A. Gross Contsr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

-proposed search methodology “must be quality control tested to assure

accuracy in retrieval and elimination of false positives”

61

Other Instances of Defense of Process

Discovery motions require defense of process

• Kandel v. Brother Int’l Corp., 683 F. Supp. 2d 1076 (C.D. Cal. 2010)Assessing steps taken by party in determining whether privilege


Assessing steps taken by party in determining whether privilege not waived

• Amobi v. D.C. Dept. of Corrections, 262 F.R.D. 45 (D.D.C. 2009)Offered no explanation of methodology and to review documents so privilege waived

62

The Role Defense of Process Plays in Predictive Coding

As in other instances, be prepared to explain the process used

• Da Silva Moore v. Publicis Groupe


• Da Silva Moore v. Publicis Groupe“I will want to know what was done and why that produced defensible results”

“Proof of a valid ‘process,’ including quality control testing, also will beimportant.”

63

CONTACTS

Jennifer Mott Williams

Attorney, Morgan, Lewis & Bockius LLP

eData Practice Group

713.890.5788


713.890.5788

[email protected]

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