Patent Pilot Discovery: Tip of the Spear

Check out the LTN article "Patent Pilot Discovery: the Tip of the Spear," by Mark Michels, which reports on Federal Circuit Court of Appeals Chief Judge Randall Rader's keynote speech at Stanford Law School on January 18, 2012, on the Patent Pilot Program.

The U.S. District Court for the Northern District of California is one of 14 districts selected by the director of the Administrative Office of the United States Courts to participate in the pilot program, which is intended to enhance expertise in patent cases among federal judges. See Pub. Law 111–349 (Jan. 4, 2011).

According to Rader, the pilot program paves the way for the "patent system to lead to an economically defensible adjudication model" in the United States. Rader cites the Federal Circuit Advisory Committee's Model E-discovery Order (reported in LTN's article "The Elephant in the Patent Courtroom") as one component of the patent bar’s leadership in reducing discovery costs.

Rader is passionate in his view that reducing litigation costs by limiting discovery burdens through the patent pilot program is the most critical first step on the path to reforming patent litigation in the United States.

When Kids Hit the Road

The Ohio Supreme Court has, at times, been on the cutting edge of expanding Fourth Amendment protections for digital information from law enforcement intrusion. In December 2009, for example, the Ohio Supreme Court held that even if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant. But in a recent opinion, State v. Gould, No. 2012-Ohio-71, the Ohio Supreme Court went in another direction.

The case arose in December 2005. The defendant, after losing his job, moved in with his mother.

Magistrate Judge Andrew Peck to Keynote ALSP Event

The Association of Litigation Support Professionals has announced that Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York — winner of the 2011 LTN Innovation Award for IT Champion of the Year — will be the keynote speaker at its annual conference, March 12 and 13, at the Sheraton New Orleans in Louisiana.

Read full story here.

Sherlockian Andrew Peck

U.S. Magistrate Andrew Peck is featured in today's Wall Street Journal, in an article about the pending five-day celebration of Sherlock Holmes' "suspected" birthday on Jan. 6 (about 500 folks are expected to participate). Peck is a member of the invitation-only "Baker Street Irregulars, who gather in New York to discuss all things Conan Doyle. Check out Jo Piazza's story here (subscription required) or on page A-17 of the paper version.

Photo: Natalie Keyssar for The Wall Street Journal.

House Judiciary Subcommittee Hearing Re: Rules

Update on Tuesday's Judicial Subcommittee hearing about whether or not EDD rules should be changed:

• Milberg's Henry Kelston report will be up shortly on the LTN website.
• Here's a link (hat tip to Mark Michaels) to the video webcast.
• Here's Sutherland's alert by Robert Owen.
• Here's a link to Evan Koblentz' preview story (with a comment from LTN's e-discovery columnist, Craig Ball).

Dive into the discussion!

Growing Trend: EDD Special Masters

The use of e-discovery "special masters" — who help parties frame and execute the discovery of electronically stored information — is a growing trend. At last week's Georgetown Law Advanced eDiscovery Institute, there were podium discussions about court-related pilot programs as well as informal conversations among attendees about the new job opportunities.

On a Friday panel, Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania outlined a pilot project in progress to help ligitants identify and use special masters. Conti, who chairs the court's Alternate Dispute Resolution Implementation Committee, said the court decided to create a list of approved special masters. Finalists were selected for the one year pilot effort, that began in May, she explained.

Acccording to the court's website, a subcommittee, led by Judge Nora Fischer, and including court IT personnel and local practitioners with EDD experience, provided recommendations to the ADR committee, ultimately resulting in approved application and selection criteria. "The final set of criteria approved by the ADR Committee includes active bar admission; demonstrated litigation experience, particularly with electronic discovery; demonstrated training and experience with computers and technology; and mediation training and experience."

Read more here.

Image: Courtesy of the U.S.D.C.

Georgetown EDD Conference Case Law Update

The eighth annual Georgetown Law Advanced eDiscovery Institute opened Thursday morning with a fast-paced case law update presented by six of the most well-known jurists in the legal industry: John Facciola (U.S. District Court for the District of Columbia); Lee Rosenthal (U.S. District Court for the Southern District of Texas) (right); Andrew Peck (left), Shira Scheindlin, and James Francis (left below) — (all three from the U.S. District Court for the Southern District of New York) — and David Waxse (U.S. District Court for the District of Kansas) (below, with moderator Ron Hedges). Baltimore's Paul Grimm was scheduled to participate, but had a conflict and was unable to attend.

The almost-two hour session at the Ritz-Carlton in Arlington, Va., covered cases that illustrated a wide range of issues that were in consideration during 2011.

Francis started with the long-litigated Rambus cases. (Micron Tech, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed .Cir. 2011), and Hynix Semiconductor, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed. Cir. 2011), which addressed the issue of when the duty to preserve kicks in, and what is reasonable anticipation of litigation. Francis described the "shredding parties" that Rambus held that were revealed during the litigation. "In some respects, [Rambus] was an easy case," he observed, because it was so dramatic.

Read more here.

Photos: Monica Bay

Rader Is Becoming a Rock Star

Judge Randall Rader appears to flying to the e-discovery spotlight like a hungry moth in July. Ginny LaRoe at The Recorder  chronicles his speech at the recent conference of the U.S. Court of Appeals for the Federal Circuit and U.S. District Court for the Eastern District of Texas. 

He recently announced a new advisory order that calls for strict limits on e-discovery in patent suits, that could "cost accused infringers dearly even on bogus claims," LaRoe reports.  

Our Mark Michels first covered Rader in "The Elephant in the Courtroom," last month on our LTN website (and in the coming December issue of our print magazine).

LaRos says at least one California judge has jumped on the bandwagon:

With the ink on the advisory order barely dry, U.S. Magistrate Judge Paul Grewal of the U.S. District Court for the Northern District of California issued an order curtailing email production in a patent infringement suit pending in his San Jose courtroom, becoming one of the first judges in the country to buy into Rader's vision.

The move caused a buzz among patent litigators waiting to see if the approach will rein in e-discovery costs, or prove unworkable and even lead to more venue shopping.

Grewal's Nov. 2 ruling creates a test case for discovery curbs, and further solidifies the young — and still green — magistrate's status as a bright light on the Northern District bench.

"I think it's both a courageous move," Rader said in an interview after word of Grewal's ruling made its way to Rader's Washington, D.C., chambers, "but also just a wise application of an available tool to make his case more efficient."

Read the full Recorder story here.

Video: The role of IRP in maintaining an innovative economy here.

Image: Roberto Westbrook

Supreme Court Arguments in U.S. v. Jones

The Supreme Court heard arguments on Nov. 8, in the GPS tracking case, United States v. Jones. My article is  here.

Magistrate Judge James Cott Ruling Generating Heat

Our former ALM colleague Alison Frankel reports on her "On the Case" blog (Thomson Reuters): "E-discovery ruling in KPMG case: Brace for 'profound' impact."

It's about an EDD order from Magistrate James Cott over how many hard drives must be examined in an uncertified wage-and-hour class action suit against KPMG.  The parties agreed that plaintiffs could use sampling software to limit the amount of data to be preserved, says Frankel, but couldn't agree on sampling criteria and number of drives to include in the sample. 

Amicus briefs are flying.  Here's the Chamber of Commerce brief, courtesy of Littler's Cecil Lynn III: Download Amicus Brief

Check it out Frankel's report  here. 

Evan Koblentz' 11/14 article here.

Leonard Deutchman 11/11 article  here 

Hat tip: Jeffrey Brandt

Update on SCOTUS GPS Arguments

Here are some of the news reports and resources regarding yesterday's SCOTUS arguments (See also, Joshua Engel post, below):

• Engel's article is here. 

• "Citing Orwell, Supreme Court Appears Wary of Police GPS Surveillance," by Marcia Coyle, The National Law Journal.

• Which Way Privacy?" by Dahlia Lithwick, Slate.

• Supreme Court documents here. Argument transcript

• SCOTUSblog post by Lyle Denniston. 

• The Volokh Conspiracy post by Orin Kerr.

• Cato@Liberty post by Jim Harper. 

• Electronic Frontier Foundation case history  here.

Image: Clipart

SCOTUS Arguments Today in U.S. v Jones

The United States Supreme Court is scheduled to hear arguments today in United States v. Jones, 

The court will consider whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor his movements on public streets violated the Fourth Amendment. The briefs, including 13 amicus briefs, are gathered on Scotusblog. For a little perspective, you can read my take from last year on how James Bond relates to this issue here.  

I will have more when the transcripts are released.

Patent Litigation Model E-discovery Order Update

In the LTN article The Elephant in the Patent Courtroom I reported on the model e-discovery order for patent litigation developed by the Federal Circuit Advisory Council's E-Discovery Committee. 

            Judges in three patent cases in the Eastern District of Texas have issued orders with provisions very similar to or incorporating the patent Litigation Model Ediscovery Order terms: Stambler v. Atmos Energy (Case No. 2:10-CV-594)((Judge Everingham), Effectively Illuminated Pathways v Aston Martin Lagonda, (Case No.:6:11cv34 (Judge Love) and Intravisual v Fujitsu (Case No. 2:10cv090) (Judge Folsom). Judge Love has also posted the E-discovery Model Order on his website alerting counsel appearing before him that it is a representative example of an order typically used by him in patent matters. 

            I have heard that the model order is also gaining some traction in Delaware and other patent-heavy jurisdictions.  I will continue to look for cases that adopt the model order. If any readers are aware of any cases that do implement the model order or its provisions, please let me know.

New Tools to Manage Patent Litigation Ediscovery Cost

The Texas Lawyer recently reported that Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit unveiled a model order that would limit ediscovery in patent cases. Rader, acknowledging the tremendous expense of patent litigation discovery, hopes that federal courts will use the Model Order as a helpful starting point to enforce responsible, targeted use of e-discovery in patent cases. Key elements of the Model Order:

1. Employ cost shifting for disproportionate electronically stored information requests.
2. Prohibit metadata production (absent good cause).
3. Restrict email production.
4. Limit potential privilege waivers.

In LTN’s The Elephant in the Patent Courtroom I review the Model Order’s key components and propose additional approaches patent litigants can employ to reduce discovery expenses. I conclude that the Model Order’s cost-shifting, email and privilege waiver, along with other thoughtfully applied FRCP provisions and cooperation between the parties, should help reduce the costs parties face in patent litigation.

Reading the Judicial Tea Leaves

U.S. District Court Magistrate Judge Andrew Peck’s recent Law Technology News article, “Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?” endorsed technology-assisted document coding in electronic data discovery.

But other opinions suggest support for the process, also called "predictive coding." USDC Magistrate Judge John Facciola endorsed technology assisted document review in Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139, 148 (D.D.C. 2007) as did U.S.D.C Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008). While these jurists have expressed support for using technology assisted document review, they each caution that parties must be prepared to defend the particular implementation of these tools and processes. 

In LTN's "Reading the Predictive Coding Judicial Tea Leaves,"  I discuss that these cases (and others) provide an approach for ensuring its defensibility. Facciola raised the prospect of a Federal Rule of Evidence 702/Daubert standard for resolving defensibility challenges; Grimm and Peck have expressed different views regarding defensibility proof.

Regardless of the precise defensibility approach required by a court, a party using technology assisted document review should be prepared to answer three questions in the event of a later challenge:

1. Who will explain credibly to the court or adversary the process and results?

Command Culture Must Collapse

Warm thanks to the Colorado Association of Litigation Support Professionals for the invitation to participate in its fifth annual E-Discovery Summit — especially leaders Shari Bjorkquist Rich and Jeff Staal. It was a fascinating day, here's a link to my report from today's Law Technology News website. 

In addition to the presentations from U.S. District Court (Colorado) Magistrate Judge Michael Hegarty, left, and Quarles & Brady partner William Hamilton (below right), that are detailed in the article, other panelists included Cheryl Proctor, director of client services at Baker Donelson Bearman Caldwell & Berkowitz; and Patrick O'Rourke, of the Office of the University Counsel at the University of Colorado. Proctor detailed how her firm handles EDD decisions; O'Rourke offered tips to using technology to enhance jury presentations. 

Hamilton did double duty, subbing for Perkins Coie's Debra Bernard who had a last minute conflict and could not present her scheduled discussion of the 7th Circuit EDD pilot program -- a closely watched experiment that is generating raves, and is expected to be cloned in other jurisdictions. Hamilton is the new dean of Bryan University's online program that offers a graduate certificate in e-discovery, and has been chair of the advisory board of the Association of Certified E-Discovery Specialists.

I offered an overview of some of the key 2011 legal technology issues, including the controversy over e-discovery certification and the failure of law schools to educate students on law practice management and EDD; the EDD ramifications of the "consumerization" of technology (read: Apple) within legal organizations; associate insider trading; and more.

Images: Hegarty (Monica Bay), Hamilton (Courtesy of Quarles & Brady).

CRAC to Consider Preservation Rule in November

Andrea Kuperman, chief counsel of the  Civil Rules Advisory Committee, has advised that the November Civil Rules Committee meeting will include discussion of the discovery subcommittee's examination of whether to recommend a rulemaking response to concerns about preservation/sanctions for spoliation/electronic discovery.

Materials considered by the subcommittee will be made a part of the agenda materials for that meeting. Because there is a significant amount of material, all of the materials that the subcommittee has considered are currently available on the Federal Rulemaking website. The website will be updated if additional submissions are received.

Here are links to the documents currently on the website:

Materials Produced by the Advisory Committee (pdf)
Proposed Agenda
Notes from the Mini-Conference on Preservation and Sanctions
Preservation/Sanctions Issues
Elements of a Preservation Rule
Case Law on Elements of a Potential Preservation Rule

Comments Submitted (pdf)
Department of Justice
Center for Constitutional Litigation
Lawyers for Civil Justice
Thomas Y. Allman
New York Bar Association
Thomas Y. Allman, Jason R. Baron, and Maura R. Grossman
Microsoft
Kroll Ontrack

Empirical Data or Research (pdf)
RAND Corporation – Costs of Pre-Trial Discovery of Electronically Stored Information
Civil Justice Reform Group – Preliminary Report on the Preservation Costs Survey of Major Companies
The Sedona Conference – Membership Survey on Preservation and Sanctions
Federal Judicial Center – Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases

Judge Peck: Green Light for Computer-Aided Coding

In the October issue of Law Technology News magazine, New York-based U.S. Magistrate Judge Andrew Peck argues that the time has come for computer-assisted coding — a.k.a. predictive coding — to be embraced by litigators and the judiciary. 

In "Search, Forward," Peck chronicles the evolution of search, concluding lawyers' fears of judicial rebuffs or potential Daubert hearings "seem largely misplaced." When using computer-assisted coding, he suggests that litigators should be prepared to explain "what was done and why that produced defensible results."  

"Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help 'secure the just, speedy, and inexpensive' (Fed. R. Civ. P. 1) determination of cases in our e-discovery world."

Image: Russ Curtis

Thomas Allman: Discovery Subcommittee Report

Thomas Allman offers a summary of a recent meeting of the Discovery Subcommittee (of the Committee on Rules and Practice and Procedure of the Judicial Conference of the United States), which has been charged with evaluating and reporting on the "appropriateness of rulemaking on the subject of preservation and spoiliation."

The subcommittee met on Sept. 9, and the agenda included discussion of over-preservation, inconsistent sanctions, ineffective Rule 26(f) conferences, technology issues (including social media and cloud computing), and more. 

Allman's report: Download 2011SummaryofMeeting(REVII)

"Civil Rules Discovery Subcomittee Mini-Conference at DFW Airport, Sept. 9, 2011: 'Preservation, Search Technology & Rulemaking.' " Download 2011FINALPreservationandTechnology(Sept7)

Watch video with Allman discussing the 2010 Duke Law School conference (Judicial Conference Advisory Committee on Civil Rules)

Related stories: 

• "Committee Ponders EDD Changes to Federal Rules of Civil Procedure," by Evan Koblentz, 7/22/11. 

•  "FRCP Rules Change Update," by Evan Koblentz, 9/15/11. 

• Up Close: Thomas Allman, LTN, April 2008.  

Georgetown Gears Up

Lawrence Center checks in to remind us that the early-bird rate for the upcoming Georgetown Law CLE Advanced eDiscovery Institute expires Oct. 17 ($100 discount).  The conference will be held November 17-18 at The Ritz-Carlton, Pentagon City-Arlington, Va.

Chief Magistrate Judge for the U.S. District Court, District of Maryland Paul Grimm will deliver the keynote. He's one of at least 15 judges who are scheduled to speak at the annual "judge-fest" — others include high-visibility U.S. District Court jurists Lee Rosenthal, Shira Scheindlin John Facciola, James Francis, Andrew Peck, Nan Nolan, David Waxse, Elizabeth Laporte.

Francis will moderate a session on "Statistics and Sampling for Lawyers: How to Apply a Well-Accepted Methodology in the World of eDiscovery; Scheindlin is a panel on "Pragmatic Practices for Resolving eDiscovery Cross-Border Conundrums." Other conference topics range from the opening session, "E-Discovery Case Law Update," to corporate approaches to electronic information management; "The Business of e-Discovery," state approaches, social media, cloud computing, project management, and so much more.

LTN board member and frequent contributor Patrick Oot will moderate a panel on "E-Discovery in Investigations and Litigation Before Federal Agencies," (he is general counsel with The Electronic Discovery Institute and special counsel for e-discovery with the U.S. Securities & Exchange Commission).

If last year was any predictor, this is a "must-attend" conference. I will be there, hope to see you!

Brochure; website. Phone: (800) 241-3333.

Image: Clipart.com

U.S. v. Jones to Supreme Court

It may be impossible to overstate the potential importance of the upcoming Supreme Court case looking at the warrantless use of GPS tracking devices by law enforcement. The case is United States v. Jones, and there is a nice collection of documents on scotusblog.

I have written some articles about this issue, as well as posting on this blog and the Stockycat blog.  For those looking for a more detailed summary of my views, you can read this law review article I wrote last fall.

(Yes, sometimes hyped cases before the Supreme Court fizzle or get decided on more narrow grounds.  So please take that into account when you continue reading.)

The significance of this case rests, in my opinion, on the fact that this is the first time the Supreme Court has been forced to address whether the aggregation of data can pose significant and unique privacy concerns. In other words, is there a difference between limited observations of people in public, and 24 hour comprehensive surveillance?  This is one of the first opportunities for the court to examine how to apply mid-20^th century legal principles to 21^st century technology.

Interview: Andrea Kuperman, U.S. Judicial Conference

On Sept. 9, the Civil Rules Advisory Committee of the U.S. Judicial Conference will meet in Dallas to consider changing the Federal Rules of Civil Procedure on evidence preservation and sanctions related to electronic discovery.

As part of the discussion, the committee — made up of judges, law professors, and attorneys — will consider an exhaustive report prepared by Andrea Kuperman, chief counsel to the rules committee (left).

For the report, the committee asked Kuperman — who previously served as the rules law clerk for U.S. District Judge Lee Rosenthal of the Southern District of Texas in Houston—  to look at existing case law on evidence preservation and sanctions issues. If the committee approves the rule changes, there is a six-month comment period. Texas Lawyer senior reporter John Council e-mailed Kuperman some questions about the report. Her answers are here, edited for length and style

 

 

Judicial Support Brewing for Predictive Coding?

Predictive coding is already the EDD buzzword of 2011.  In my recent article in the LTN August issue, "Robot Review," I analyze the kind of judicial support we have seen thus far for use of predictive coding in document review.  Add one more judicial voice to the chorus of support, based on online reports about U.S. Magistrate Judge Andrew Peck’s keynote speech about predictive coding at the Carmel Valley eDiscovery Retreat that have surfaced.  As one report by Chris Dale put it, Judge Peck’s keynote was “one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search in appropriate civil litigation cases.” 

Can we reasonably expect to see some of our active e-discovery jurists wade into the predictive coding waters, not just at conferences, but also in written opinions (perhaps with some enlightening dicta)?  Or is waiting for a judicial pronouncement in an opinion about the validity — or lack thereof — of predictive coding akin to waiting for Godot?  Let us know your take in the comments.

EDD Changes to Federal Rules of Civil Procedure

Discussions about possible e-discovery-related changes to the Federal Rules of Civil Procedure are now being circulated by a subcommittee of the Judicial Conference of the United States, but any official changes aren't likely until 2013, committee chairman and District Court Judge for Arizona David Campbell said. Such updates will be the first since 2006.

"Our intention on September 9 is not to try to get a consensus from this group. It's really to learn from these folks ... it's more of a due diligence effort on the part of our subcommittee," Campbell explained.

The committee will begin seeking public comments later this year or early next year. However, here at EDD Update and Law Technology News, we welcome your comments anytime!

Read the full story and let us know what, if anything would be good changes for e-discovery in the FRCP.

Legal Technology Leadership Summit - Amelia Island

More than 50 speakers will be joining the faculty at our upcoming  Electronic Discovery Institute's Legal Technology Leadership Summit, Sept. 6-8, at the Ritz Carlton Amelia Island. The program targets corporate counsel, records management, judges, IT and litigation support professionals.

Details:  http://www.legaltechnology2011.com

We are offering scholarships for a limited number of qualified in-house corporate attendees that have budget shortfalls this year. Among the many corporate counsel speakers is Microsoft's Nishan DeSilva, who oversaw the winning project in the 2010 Law Technology News Award for Best Use of Technology in a Law Department. (See "Eat Your Own Dogfood," LTN April, 2010.)

Also, if you work in an a corporate legal, records management, or IT department, and have a compelling story to to tell on one of our panels, please contact info@ediscoveryinstitute.org for details.

Disclaimer: I am involved in the event!

Image: Ritz Carlton/Electronic Discovery Institute

Supreme Court to Decide GPS Case

The Supreme Court on Monday agreed to decide whether the warrantless use of a GPS tracking device on a defendant’s vehicle to monitor its movements on public streets violated the Fourth Amendment.  The case is United States v. Jones, Supreme Court Docket No. 10-1259. The D.C. Circuit had previously held that the use of a GPS tracking device without a warrant violated the Fourth Amendment.

In this case, the defendant was under investigation for suspected drug offenses. As part of the investigation, officers installed a GPS device on his vehicle and tracked his movements for four weeks.

Scheindlin Withdraws NDLON Opinion

Judge Shira Scheindlin has withdrawn her NDLON v ICE opinion, reports Ralph Losey on his eDiscovery Team blog here. It addresses FOIA, metadata and cooperation. 

Photo: Monica Bay

New Hampshire Court: Comcast Can Release IP Address

The New Hampshire Supreme Court recently held that internet users have no reasonable expectation of privacy in subscriber information held by internet service providers (ISPs). The case is State v. Mello.

This case was closely watched because, as this article explains, the N.H. Supreme Court has often been willing to interpret its state constitution to provide greater protections of individual rights than the federal constitution. The defendant in this case was charged distribution of child pornography.  He was caught in an undercover police operation when a detective posed online as a 14-year-old boy. The defendant exchanged e-mails and chatted with the detective, and sent to the detective pornographic images depicting male children. 

The detective, using the defendant's e-mail address, determined the defendant's IP address was assigned to Comcast, a New Jersey company. The detective then obtained a search warrant for the defendant’s subscriber information. Using this information, the detective obtained an additional search warrant for the defendant's home computer, and seized evidence that led to his indictment. 

Georgetown Training Academy

We are about to start day three of the sold-out Georgetown E-Discovery Training Academy. The first two days have been a rollicking adventure in forensics education. The programs is designed to provide "total immersion in the subject of e-discovery, featuring a highly personalized and interactive approach designed to foster an intense connection between all studnets and a renowned faculty," says Georgetown University Law Center.

The instruction to date has been led by Craig Ball (author of LTN's "Ball in Your Court" column) with assistance from David Neal and Andy Spruill of Guidance Software, as well as yours truly.

As an added bonus, D.C.-based Judge John Facciola (right, click to enlarge) has been with us for portions of each day, including having lunch with the attendees in the school cafteria yesterday.

Day 2 was actually a marathon session as we stayed late to perform a series of hands-on exercises with the EnCase forensics tools. Luckily there were ample amounts of pizza to keep us going.

Today's instruction will be taken over by Michael Arkfeld (also on LTN's board and fellow EDD Update author) with additional sessions by Jason Baron (National Archives' director of litigation) and Wachtell, Lipton attorney Maura Grossman. Later in the week the students will break up into teams who will prepare a Meet and Confer session under the supervision of  Facciola and Judge Paul Grimm.

All in all this is an extremely intense learning experience, with enormous amounts of practical discussions and constant give and take between the students and the world class faculty. In addition to the Meet and Confer team exercise at the end of the week, their will be a final skills test on Friday, a CLE first in my experience.

I'll keep you updated with further reports as the week progresses. 

Photo: Monica Bay (from Georgetown's Nov. 2010 EDD conference.)

Greene: Court Slaps Plaintiff's Counsel for ESI Sanctions

In Greene v. Netsmart Technologies Inc. (E.D. N.Y., Docket 08-CV-04971) District Judge Thomas Platt ordered plaintiff's counsel to pay half the sanctions imposed on plaintiff, in an order entered June 2, 2011. The sanctions were half of the attorneys fees and costs associated with the defendant's motion as well as half of the cost of the vendor that examined the plaintiff's hard drive and recording device.

Platt adopted the "Report and Recommendation" of U.S. Magistrate Judge A. Kathleen Tomlinson on defendant's motion. Tomlinson had recommended the sanctions using an ordinary negligence standard to determine the appropriateness of sanctions. As detailed in that report, plaintiff had deleted voice recordings, destroyed handwritten notes, and not produced documents until defendant learned of them during plaintiff's deposition or as a result of a third-party examination of plaintiff's computer.

M.J. Foschio departs from Scheindlin in Steuben Foods

Gibson Dunn's May 13 Alert reports that "another court within the Second Circuit has now declined to follow Pension Committee's per se gross negligence and inference of spoliation rule. In Steuben Foods, Inc. v. Country Gourmet Foods, LLC, 2011 WL 1549450 (WDNY Apr. 21, 2011), the plaintiff's corporate counsel implemented a litigation hold orally through conversations with the company's President, Vice President of Business Development and six other managers and officers. Id. at *1. Relying on Pension Committee, and pointing to a mere three missing emails, the defendant argued that relevant documents that were not produced should be presumed lost and sanctions imposed."

"In an opinion by Magistrate Judge Leslie Foschio, the court denied the defendant's request for sanctions because "in this case, the record fails to reveal any evidence that Plaintiff was responsible for the destruction or loss of any relevant evidence." 

"The court distinguished the facts of Pension Committee, where the plaintiffs had been under a fiduciary duty to conduct due diligence on their investments and therefore documents "surely must have existed," yet the "paucity" of documents produced led "inexorably to the conclusion that relevant records ha[d] been lost or destroyed."

Read more on Gibson Dunn's Alert: bit.ly/eddu514.

Image: clipart.com

Conference Marathon

It seems that a few times a year the e-discovery conference coordinators conspire to put their conferences so close to each other, they easily turn into a conference marathon.

I am on my way back home from this year’s London Information Retention & e-Disclosure Summit for a short break before heading to Guidance Software's Computer Enterprice and Investigations Conference (CEIC 2011) this Sunday, and will finalize my marathon with the long-planned and anticipated LegalTech West Coast in Los Angeles. At CEIC I will be discussing the ever-popular Early Case/Data Assessment topic with George Socha. At LTWC I am moderating three Wednesday (May 18) panels on the Integration of Legal Technology track, including "A Survival Lesson: Integration and Consolidation of Legal Technology as a Response to the Recent Economic Changes in Law Firms," with Hugh Todd (Gibson Dunn) and Jason Straight (Kroll Ontrack).

While the London Summit seemed a bit small by U.S. standards, it attracted quite a few instantly recognized names from the judges’ panel — U.S. judges Andrew Peck, (right), John Facciola, and Paul Grimm and U.K.-based Master Steven Whitaker and Judge Simon Brown. They presented on “What lies ahead?  Meeting judicial expectations and providing effective leadership in the face of emerging eDisclosure challenges” (moderated by Patrick Burke of Guidance Software).

Court Denies Request to Track Adversary's ESI

You knew it was going to happen: Tracking electronically stored information, after disclosing it to the requesting party. In re Facebook PPC Adver. Litig., 2011 U.S. Dist. LEXIS 39830, at *9-10 (N.D. Cal. Apr. 6, 2011).

We have not seen the last of this issue. However, in denying the request it was a bit odd the court did not raise the attorney work product privilege issue.

After disclosing their ESI discovery, Facebook decided to track the opposing party's review of their discovery. This included when and who reviewed their documents, printing preclusion, setting expiration dates (if you did not review them fast enough, they were not available) and making documents non-searchable and non-annotatable.

Murder Conviction Reversed: MySpace Authentication Issue

The Maryland Court of Appeals has reversed and remanded for a new trial the defendant's murder conviction for failing to properly authenticate MySpace pages.

In a lengthy opinion, the court found the trial judge abused his discretion in attempting to authenticate the social networking site's web pages of defendant's girlfriend through the lead investigator's testimony only.

On the girlfriend's web page it stated, "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant argued . . . (read more)

Image: clipart.com

10th Circuit: 3 Discovery Strikes & You're Out

A discovery-focused opinion worth a read was issued this week by a federal judge who is not named Scheindlin: Lee v. Max International, LLC, issued by the U.S. Court of Appeals for the 10th Circuit and authored by Judge Neil Gorsuch. The opinion affirms a trial court's dismissal of an action after repeated discovery violations — three, in fact — by the plaintiffs.

The errant behavior in question was a failure to produce the same documents at three separate junctures: first in response to document requests and subsequently in response to two separate court orders compelling production (where the latest order expressly warned that further problems could result in dismissal).

While the opinion focuses on discovery, rather than e-discovery per se, the language appears to apply with full force regardless of whether the "e" is involved. The opinion is full of colorful nuggets, such as the following:

• "Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation."

A Bit More on Cell Phones....

A little bit more on cell phones, searches incident to arrest, and passwords.

In this post, I tried to briefly answer the question that keeps recurring about police efforts to search cell phones when they arrest people:  "What if you need a passcode to enter your cellphone and refuse to provide it to the police to search the phone?"

A new law review article on this issue by Professor Adam Gershowitz of the University of Houston was brought to my attention. Gershowitz is one of the first to study the unique legal implications of smartphones.  Way back in 2008, he examined the search incident to arrest doctrine and cell iPhones and asked, “What happens . . . when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, e-mails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use?”  His answer was yes.  (My answer, two years later, was maybe no.)

Gershowitz’s new article is titled: “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine?  It will be published in the Iowa Law Review, and is available online here.

In this article, Gershowitz argues that an arrestee to disclose his password is a statement covered by the Fifth Amendment right to remain silent.  This is because knowledge of the password can demonstrate control and possession of the electronic device. 

How (Not) to Lose Data & Alienate Judges

EDD Update author Farrah Pepper and colleague Jennifer Rearden offer an overview of the latest cases and trends, in "How (Not) to Lose Data and Alienate Judges," which appeared recently on our Law Technology News website. The pair, from Gibson Dunn & Crutcher, note that while there are not yet national standards, there have been significant rulings across the country.  Of course, U.S. District Court Judge Shira Scheindlin (right) is front and center in the discussion.

Photo: Monica Bay

Judge Grimm Ponders Disappointment with FRE 502

Chief Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland ponders why Federal Rule of Evidence 502 — which encourages cooperation among counsel with the goal of reducing the costs of production of electronically stored information and reviews — "has not lived up to its potential," in the current issue of the University of Richmond's Journal of Law and Technology (JOLT). Writing with his law clerks, Lisa Bergstrom and Matthew Kraeuter, Grimm (right) says the explanation "may have to do with the reality that a disappointingly small number of lawyers seem to be aware of the rule and its potential, despite the fact that the rule is over two years old."

Another factor: "Courts have not interpreted Rule 502 with sufficient consistency in reported decisions to enable practitioners and their clients to predict how they will fare if they attempt to take advantage of the rule to reduce the need for manual, document-by-document pre-production review by either employing electronic search and retrieval methodologies or entering into time and money saving non-waiver agreements."

Read more here.

Photo: Jonathan Hanson (http://jonathanhansonphotography.com)

NY State Courts Bolster EDD

New York state alterations to §202.10(b) and §202.70(g) of the Uniform Rules of Trial Courts became effective on 8/17, after approval by Chief Judge Jonathan Lipmann and the PJs of four appellate division departments.  The New York Law Journal offers this analysis by Joel Stashenko about how the amendments —  which state that all attorneys "must be sufficiently versed in matters relating to their clients' technology systems to discuss competently all issues relating to electronic discovery" at preliminary conferences ‚  will push lawyers to understand EDD.

And after 11 years of tinkering, New York has also begun to institute mandatory e-filing in some areas, he reports.

An Open Letter to Judges About Computer Forensic Exams

 Your Honors:

I just read another opinion where the Court decided to let one side's computer expert examine an opposing party's computers. The Court seemed more concerned with who would pay for the exam than what its consequences might be.

I'm a lawyer and computer forensic examiner, and I make part of my living doing just the sort of examinations the court ordered.  I've done a whole bunch of them.  So, while part of me wants to encourage courts to order more forensic exams — and I can surely attest to their efficacy in resurrecting data thought gone and exposing case-making evidence — the angel at my ear requires me to softly whisper, "WHAT THE HECK WERE YOU THINKING, JUDGE?!? 

Why didn't you use a neutral?

I could say, "You never know what a computer forensic examiner will find," except I KNOW what we find: We find trouble.

Judge Andrew Peck & Craig Ball Discuss Costs

Magistrate Judge Andrew Peck and Craig Ball share their discussion about Ball's column in the February issue of Law Technology News: (Feel free to dive into the discussion).

Judge Peck:
Craig, I read your article re: recoverable costs with interest (I always enjoy your articles). However: at least in the Southern District of New York (and I believe most federal courts), recoverable court costs for copies have traditionally been limited to copying trial exhibits (or getting records certified or similar costs not relevant to your article).

Thus, if a party produced 10,000 pages in discovery, that copying cost would not be recoverable -- but the cost of copying the 100 trial exhibit pages would be.

So I see very little opportunity to recover e-discovery costs via Rule 54 and 28 USC.

Am I missing something?

Craig Ball:
Your Honor, thanks for the kind note.; You're not missing anything.I see that in the SDNY, the rules are interpreted in a very conservative way to shift little expenditure as costs. But, this is by no means standard, and it's the unpredictability among the circuits that moves me to argue that the subject needs to be sensibly standardized, especially where we are talking about big bucks (and with e-discovery, what other discussion is there?).

Judicial Boxing Match?

With the Winter Games in high gear, it is hard not to think of the headline for the main card of an e-discovery boxing match between two federal judicial heavy hitters:

Rosenthal vs. Scheindlin 

The introductions of a boxing announcer come to mind reading Judge Rosenthal's recent opinion in Rimkus v. Cammarata, 07-cv-00405 (SDTX Feb. 19, 2010) and her subtle (or not so subtle depending on how much is read into her opinion) critique of Judge Scheindlin's very much discussed opinion in The Pension Committee of Montreal, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 15, 2010).  And in this corner, at the forefront of e-discovery, legal holds and the duty to preserve all relevant evidence... hailing from the toughest city in the world - New York... Ms. ESI... Judge Scheindlin.  And in this corner... mover and shaper of the Federal Rules of Civil Procedure... Champion of the Safe Harbor... hailing from the toughest state in the Union - Texas... Ms. FRCP amendments... Judge Rosenthal.

IM-PECK-ABLE

Magistrate Judge Andrew Peck, who serves on the U.S. District Court for the Southern District of New York, has been quite active in drafting e-discovery rulings, such as March's William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co. and Anti-Monopoly, Inc. v. Hasbro, Inc. -- both establishing important guidance for the creation keywords for searching electronically stored information. (See here, here, and here.)

But did you know that Peck also has written a reference book on all things Sherlock Holmes? Or that he drives to work (unusual for a Manhattanite). And you probably won't be surprised to see that he and I share the same favorite website. After all, he lives in New York City!

Check it out here in the October issue of Law Technology News.

E-Discovery Tips From the Bench

Judges are seen as a circumspect and guarded lot, but there are few topics they enjoy discussing more than the art of litigation and e-discovery. Some advice on handling EDD matters: Don't ask a judge "for everything and a pony" and don't treat meet and confers like a "drive-by conference."

California EDD Rules - Richard Best

Richard Best, a California EDD Referee, offers his observations about the pending California EDD Rules:

At this point, legislation enacting e-discovery rules in California appears to be a political certainty and will likely have no opposition.

The comments on the proposal submitted to the AOC [Administrative Office of the Courts] and the response by its staff provide some insight to the understanding and intent of the advocates of the legislation.

At the Judicial Council meeting on April 25th, questions asked by a few members and responses of the proponents raised additional issues. The proposal and a spreadsheet summarizing all the comments and the committee's responses covers 147 pages and was posted on April 18, 2008. The spreadsheet, the agenda and the audiocast of the Judicial Council presentation and discussion may be found here.

Cal Judicial Council Proposes New EDD Rules

The California Bar Journal reports that the state's Judicial Council is proposing new EDD statutes and rules. Reporter Nancy McCarthy says the proposals have drawn about 50 comments so far, and the council's Civil and Small Claims Advisory Committee will likely revised the proposals after the comments are evaluated.

The proposed rules are here. Observers suggest that they mirror the 2006-amended FRCP rules, and probably won't be controversial, McCarthy notes.