Whether we like it or not, a reality of today’s world is that often important business is conducted by text messages. And so, when it is time to issue a litigation hold notice, you must include an instruction to preserve text messages as well as the devices from which they are sent/received (i.e., smartphones).  Your failure to do so can be a costly mistake as learned by defendants in the Paisley Park case — a litigation involving the Estate of the late musical artist known as Prince — in the district of Minnesota.

In Paisley Park Enters. v. Boxill, No. 0:17-cv-01212, (D. Minn., 3/5/19) (copy here: Prince_Discovery_Order), Magistrate Judge Tony N. Leung reminded us of the obligation to preserve electronically stored information (“ESI”) that is relevant to the lawsuit, including text messages.* 

Simply stated, Plaintiffs claimed they were deprived of relevant discovery; defendants argued they did what was required by the law (i.e., preserve emails and computer data).  Defendants claimed ignorance that they had any obligation to preserve their text messages.

In reaching the merits of the spoliation motion filed by Plaintiffs, the Court concluded that Defendants’ failure was intentional and sanctions appropriate.  In reaching this conclusion the Court made a number of salient observations.

First, the Court observed that the executives – as principals of the corporate defendant – were they types of individuals likely to have relevant information.

Next, the Court observed that the text messages of the individual defendants were likely to contain relevant information because, as demonstrated by text messages secured by Rule 45 subpoena, the executives often discussed the very matters in the lawsuit by text message.  The Court therefore concluded that under the Federal Rules the parties were required to take reasonable steps to preserve ESI, including text messages (which are included in the standard, expansive term “documents”).**

Despite this obligation to take reasonable steps to preserve relevant information, the Court observed the defendants failed entirely to take any reasonable steps.  Indeed, the defendants failed to take any number of simple, basic steps including:

  • the executives did not suspend the auto-delete functionality on their respective phones —  a failure that the Court observed “takes, at most, only a few minutes” to implement;
  • the executives did not put in place a litigation hold to ensure that they preserved text messages; and
  • the executives failed to take any number of  “relatively simple options to ensure that their text messages were backed up to cloud storage” – processes that would have cost “little, particularly in comparison to the importance of the issues at stake and the amount in controversy here.”

The Court concluded that defendants’ failure to follow these simple steps alone was sufficient to show defendants acted unreasonably.   However, if the defendants’ absence of reasonable efforts was not enough, the evidence submitted demonstrated the defendants each wiped and intentionally destroyed their phones after the lawsuit was commenced (and, in the instance of one executive, he wiped a second phone and discarded it after the Court ordered the parties to preserve all relevant electronic information and after receipt of a letter advising of the need to produce text messages).

And so, having concluded both that the defendants failed to take reasonable steps to preserve relevant information and intended to destroy relevant ESI, the Court analyzed the prejudice caused to plaintiff.  Specifically, was the destroyed ESI able to be replaced from any other source Fed. R. Civ. P. 37(e).

Defendants argued there was no prejudice because plaintiffs were able to secure from third-parties some text messages sent to or received by the executive defendants.  The Court dismissed this argument and observed  these were “scattershot texts and [e-mails],” rather than “a complete record of defendants’ written communications from defendants.”  According to the Court, Plaintiffs were, for example, unable to recover text messages that the two individual defendants sent only to each other.  The Court therefore concluded the missing text messages could not be replaced or restored by other sources making it “impossible to determine precisely what the destroyed documents contained or how severely the unavailability of these documents might have prejudiced [Plaintiffs’] ability to prove the claims set forth in [their] Complaint.” Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 110 (S.D. Fl. 1987).  Therefore, the Court concluded sanctions were appropriate under Rule 37(e)(1).

Because the Court concluded that the executive defendants acted with the intent to deprive Plaintiffs of evidence, the Court ordered sanctions, pursuant to each of Rules 37(b)(2)(C), 37(e)(1), and 37(e)(2) and directed the executive defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the defendants’ misconduct.  The Court further directed the defendants pay into the Court a fine of $10,000.

While this case is an egregious example of discovery violations, the message to internalize is to include text messages (and other forms of messaging) in your hold notice.

*For those of you interested in the specifics of the lawsuit, the case involved the Estate of the late Prince Rogers Nelson (“Prince”) and the Estate’s interest in various songs created by Prince, including certain ones not released to the public.

**In rendering his decision to impose sanctions, Judge Leung provided a useful summary of the relevant law:

The Federal Rules of Civil Procedure require that parties take reasonable steps to preserve ESI that is relevant to litigation. Fed. R. Civ. P. 37(e). The Court may sanction a party for failure to do so, provided that the lost ESI cannot be restored or replaced through additional discovery. Id. Rule 37(e) makes two types of sanctions available to the Court. Under Rule 37(e)(1), if the adverse party has suffered prejudice from the spoliation of evidence, the Court may order whatever sanctions are necessary to cure the prejudice. But under Rule 37(e)(2), if the Court finds that the party “acted with the intent to deprive another party of the information’s use in the litigation,” the Court may order more severe sanctions, including a presumption that the lost information was unfavorable to the party or an instruction to the jury that it “may or must presume the information was unfavorable to the party.” The Court may also sanction a party for failing to obey a discovery order. Fed. R. Civ. P. 37(b). Sanctions available under Rule 37(b) include an order directing that certain designated facts be taken as established for purposes of the action, payment of reasonable expenses, and civil contempt of court.

Have questions?  Please contact me at kcole@farrellfritz.com.

Rule 1 of the Federal Rules of Civil Procedure calls upon courts and litigants to “secure the just, speedy, and inexpensive determination of every action and proceeding.” And so, it comes as no surprise that technology assisted review (“TAR”) is being widely embraced by the legal profession.

What is TAR?

TAR (also called predictive coding, computer assisted review, or supervised machine learning) is a document review process where humans work with software to train the software/computer to identify relevant documents.*  The goal of TAR is to effectively and efficiently categorize documents. The potential for significant savings in cost and time, without sacrificing quality, is what makes TAR so appealing.

The process is relatively straight forward. First, electronic documents that have been preserved and collected are loaded onto a platform where the software builds an index during which each document’s text is analyzed.** Next, a human reviewer who is knowledgeable about the issues and circumstances of a lawsuit reviews and codes/tags documents as “responsive” or “non-responsive.” This “seed set” of documents are used to “train” the computer. This information is then ingested by the computer, and used to draw inferences about documents that have not yet been reviewed. The computer “learns” from the human reviewers’ designations which combination of terms or other features occur in responsive documents and the computer then develops a model that it uses to predict the coding on the remaining documents.

However, TAR should not be applied blindly. Rather, quality control and testing are essential to confirm the accuracy of decisions made by the software. There are a myriad ways to perform QC, including testing random samples of the predicted responsive set before production.   It should be noted that there is no standard measurement to validate the results of TAR. Rather, it is based upon reasonableness and proportionality considerations.

For those of you interested in learning more about TAR and best practices associated with TAR, consider reading the Technology Assisted Review Guidelines released by Duke Law School in February.

https://www.edrm.net/resources/technology-assisted-review-tar-guidelines/

*The phrase “technology assisted review” can imply a meaning broader than used in this blog. For example, “TAR” could encompass non-predictive coding techniques such as “clustering.”

**Although software algorithms differ, most analyze the relationship between a document’s words, word order, characters, and repetitive text. This analysis, in turn, allows the software to compare one document to another.

Have questions?  Please contact me at kcole@farrellfritz.com.

 

De-duplication (“de-duping”) is the process of comparing electronic records based on their content and characteristics and removing duplicate records from the data set so that only one instance of an electronic record is produced when there two or more identical copies. De-duplicating a data set is a smart way to reduce volume and increase efficiencies of review.  There are three types of de-duplication: case, custodian, and production de-duplication.

Case de-duplication involves retaining only single copies of documents per case irrespective of custodian.  This is sometimes referred to as de-duplication across custodians. For example, if an identical document resides with Mr. A, Ms. B and Miss. C, only the first occurrence of the file will be processed (Mr. A’s) for review/production.  Assuming those same facts, if one were to apply custodian-level de-duplication (i.e., de-duplication within a custodian) the system will maintain one copy for each of Mr. A, Ms. B, and Miss C – or, one copy per custodian.  Finally, if multiple copies of a document reside within the same production set, de-duplication at the production level ensures that only one of those documents are produced.

De-duplication is an important step to implement because file systems can contain many copies of the same document.  For example, each time an email is sent it typically creates two additional copies of the email and its attachments, one in the sender’s sent-items folder and once in the recipient’s inbox. An email may also be sent to multiple recipients, thereby creating more copies.  To review each of these documents, code them consistently, and produce multiple copies of an identical document creates inefficiencies and avoidable costs.  And so, it is important to evaluate de-duplication efforts.

Have questions?  Please contact me at kcole@farrellfritz.com.

The Electronic Discovery Reference Model (EDRM) is a framework that outlines standards for the recovery and discovery of digital data.  An EDRM diagram created by Duke Law (https://www.edrm.net/frameworks-and-standards/edrm-model/) represents a conceptual view of the e-discovery process, which is not a linear process, necessarily.  In fact, you may engage in some, but not all of the steps identified in the diagram. Or, you may engage the process in an order different than outlined in the diagram.  The steps in the process include: information governance, identification, preservation, collection, processing, review, analysis, production, and presentation.

What exactly these steps entail is briefly set forth below:

  • Information governance – involves organizing and maintaining (or disposing of) your electronic data in a way that risks and expenses are mitigated should a dispute, investigation or litigation arise (i.e., data retention policies).
  • Identification – this step involves locating potential sources of ESI.
  • Preservation – simply stated, preservation means taking those steps necessary to ensure that potentially relevant ESI is protected from alteration or destruction.
  • Collection – involves gathering the ESI that may be potentially relevant for purposes of reviewing, and maybe producing, same during the discovery process.
  • Processing – is a technical step in the process that involves converting the collected ESI to a format that can be reviewed and analyzed.
  • Review/Analysis – once the ESI is collected and processed, the data is promoted for review so that attorneys can evaluate the data for relevance and privilege.
  • Production – the provision of relevant, non-privileged ESI to your adversary (or the investigating body) during discovery.
  • Presentation – is the final step of displaying ESI to another (jury, judge, or expert) in the form of a demonstrable for the purpose of eliciting additional information or persuading an audience.

Experts in the field opine the diagram is intended as a basis for discussion and analysis, not as a prescription for the only way to approach e-discovery.

Have questions?  Please contact me at kcole@farrellfritz.com.

Approximately, one year ago, I authored a blog about emoticons finding their way into the courtroom as purported evidence of a crime or tort (Texter Beware: Emojis as Evidence).   Although emoticons began appearing in court in 2004, their presence has risen exponentially.  In fact, just last month, Eric Goldman of the Santa Clara Law School reported in the Technology & Marketing Law Blog  (https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm) that the number of emoji/emoticon case references are growing in “a typical exponential J curve.”  Having tracked every U.S. court opinion in Westlaw and Lexis that references “emoji” or “emoticon,” Goldman observed there were 33 such cases in 2017, and 53 such cases in 2018 and only 171 cases in history (whereby 2018 accounted for 30% of the total).  The chart below (created by Goldman) shows the relative frequency of the term “emoji” and “emoticon.”  And, the use could be more extensive as Goldman’s observations are based upon only those cases wherein the word “emoji” or “emoticon” were explicitly referenced.

While the cases that reference “emoji” or “emoticon” are growing in number, it is still rare for a case to turn on the interpretation of an emoji.  Rather, it appears that they are showing up as evidence – and therefore courts have to acknowledge their existence – but often, they are not material.  For example, in the matter of a recent sex-trafficking matter, an expert specializing in sex-trafficking was called upon to testify.  He opined that the emoticons of high heels and bags of money supported the accusation that defendant was engaged in sex-trafficking.  Specifically, “wear your high heels to come make some money.”  Ultimately, the outcome of the case did not hinge upon the interpretation of these instant message emojis, but they did provide evidentiary support for the prosecutor’s case.

However, the same issues raised in last year’s blog remain at the forefront — Judges, attorneys, and legal analysts are all having to figure out what *exactly* defendants and victims mean by strings of emojis (or “picture characters,” translated from Japanese).  And, while hundreds of millions of people likely interact with emoji on a daily basis, whether as authors, recipients, or both, who knew that different platforms depict emojis differently?  For example, the emoji face with the “winky face” looks different across smartphone platforms.  The image as depicted on a Samsung phone, for example, may have a far more sinister look than depicted on the Apple phone.  This difference of depiction could pose a unique problem for interpreting an emoji.

The upshot – emojis and emoticon usage is here to stay.  They will continue to be used as evidence in appropriate cases and will necessarily draw meaning from their context.  And while there have not been many “major rulings” over emoji interpretations in 2018, experts predict it is only a matter of time.  So, if and when your duty to preserve arises, remember that smartphones, IMs, DMs, text messages and other electronic communications have the potential to be repositories for relevant information, including messages replete with emojis.

Have questions?  Please contact me at kcole@farrellfritz.com.

This is the 4th and final blog in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1, here to read Part 2, and here to read Part 3].

You have assessed the discovery needs of your matter, implemented appropriate preservation mechanisms to prevent spoliation concerns, and studied your client’s electronic information systems and the ways in which data is stored therein.  Now, it is time to collect the potentially relevant ESI.  At this juncture, I would consider working with someone who brings to the table a depth of technical knowledge that allows for a forensically sound collection of ESI.  Whether that involves retaining an ESI vendor, partnering with an in-house team, or retaining ESI counsel, it is important that you work with someone knowledgeable.  This is because the metadata can very easily and inadvertently be altered during the collection process.

You may have heard the term “metadata” before, but are not exactly sure what it is.  Often people think metadata is “data about data.”  And, while that is technically correct, what does that mean?    I often equate metadata with the fingerprint of a given electronic file.  It tells you the who, what, when, and where about the file, along with other unique information.  For example, every time you take a photo with today’s cameras, metadata is gathered and saved with it including the photo’s date and time, filename, camera settings and geolocation.  Likewise, every email you send or receive has a number of metadata fields, many of which are hidden in the message header and not visible to you in your mail client. This metadata includes, among other things, the subject, from, to, date and time sent, sending and receiving server names and IPs, format (plain text or HTML), anti-spam software details.  Capturing, without altering, the various pieces of metadata associated with a file is important when you perform your ESI collection.  And, if not handled correctly, the collection can be forever compromised (i.e., the entire collection of emails effectuated on 2/12/19 now has that date as their sent date, when in actuality they were sent on various dates over the course of many years).  You can understand why this inadvertent alteration could have lasting impact on a litigation.

When it comes to the mechanics of collecting the ESI there are many questions to be asked including whether to “self-collect” or engage a vendor?  There are also decisions to be made as to whether to image an entire data source (i.e., hard drives) or perform a targeted collection?  Is an “onsite” collection necessary (it is often exponentially more costly)?  Or can the data be collected “remotely” (i.e., wherein the individual collecting the data remotely accesses the computer/device housing the data)?  At the end of the day, the two most important questions to ask yourself are:  (1) is your intended collection methodology going to allow for a defensible and sound collection?  And, (2) is the data, now collected, (and even during collection) encrypted and secure?   Once the data is defensibly collected and stored securely, the review process for purposes of production (and building your case) begins.

Have questions?  Please contact me at kcole@farrellfritz.com.

This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1 and here to read Part 2]..

After you have assessed the discovery needs and issues in a given matter, and you have implemented appropriate preservation mechanisms, an advisable next step is to analyze and understand your client’s electronic information systems and the ways in which that data is stored.

Because each organization implements its own combination of hardware (enterprise servers, local desktops, departmental servers, hand-held devices) and software (the Microsoft Suite, Salesforce Business, Zoho One), this may be a good time to consult with a technical expert.  Indeed, if the client has an in-house IT team, it is critical to coordinate efforts with that team.  They will be able to educate you on what data exists, where it resides, and for what period of time.  This information will allow the attorney to assess the ESI that exists in the context of the legal scope and likely discovery obligations.  It may also be worth the expense of retaining a third-party vendor depending on the circumstances of the case, and the client’s in-house abilities.  If you don’t fully understand the systems in place, the way in which data is stored in those systems, and for how long, you run the risk of overlooking sources of potentially relevant ESI.  You also run the risk of committing to your adversary to produce data that, for example, has not existed for the last 6 months because of the client’s auto-deletion policy.

Have questions?  Please contact me at kcole@farrellfritz.com.

This is Part 2 in a multi-part blog discussing various core requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1]

2.  Implement Appropriate Preservation Procedures

ESI spoliation remains a real issue that lawyers must confront.  The best way to prevent spoliation is to take deliberate and prompt preservation steps.

So, the first question to ask yourself is has my duty to preserve data arisen?  While different jurisdictions have different rules, the federal standard, and the one New York subscribes to, was announced in Zubulake v. UBS Warburg LLC (“Zubulake IV”), 220 F.R.D. 212, 218 (S.D.N.Y. 2003).  That case stands for the proposition that one’s duty to preserve potentially relevant information begins “once a party reasonably anticipates litigation.”

Assuming your duty to preserve has been triggered, now what?

A lawyer must issue an effective litigation hold notice.  I have written previously on how to draft an effective hold [See Litigation Hold Notices Should Not Cloak the Recipient with Discretion Over What Documents to Preserve, Practical Tips For an Effective Litigation Hold Notice, and Your Litigation Hold Must Be Generally Broad and Specifically Tailored] and refer you to those posts, but note it is critically important that the Hold is clear, comprehensive and provides a resource for questions.  Minimally it should provide custodians with detailed instructions on what they are expected to do upon receipt of the Hold; and ensure that the Hold sets forth the specifics of what information must be preserved, thus limiting any discretion vested in the recipients of the Hold.  Additionally, prior to issuance, an attorney must identify which custodians/entities are receiving the Hold; what third-parties over whom the client has practical control, if any, should receive the Hold; and what procedures will you implement to audit compliance with the Hold.

Have questions?  Please contact me at kcole@farrellfritz.com.

 

The role of electronically stored information (“ESI”) and new technologies has grown tremendously in recent years.  This growth has a direct impact on discovery specifically, and the practice of law, generally.   And so, the new practical reality is that attorneys need to be technologically literate and competent.  This should come as no surprise to those who read my blog.  Earlier posts discuss the ABA’s implementation of Model Rule 1.1. – which establishes a lawyer’s general duty of competence, including the benefits and risks associated with relevant technology – and others discuss other states’ explicit technology CLE requirement.

While New York does not have any technology CLE requirement (yet), it has adopted a technology competence for lawyers (along with 27 other states).  What exactly must a lawyer do to fulfill his/her duty of technology competence for e-discovery?  Regrettably, there is no easy answer, but a 2015 ethics opinion from California provides a very useful roadmap and identifies nine core requirements necessary to fulfill one’s duty.   Today’s blog will discuss one of those core requirements, with subsequent blogs to address the others.

  1. Assess E-Discovery Needs and Issues:

This first requirement mandates that an attorney take a long-view of the matter he or she is dealing with (sometimes in consultation with an ESI vendor) and identify e-discovery needs and issues.  Topics to consider include identifying the custodians (i.e., sources of potentially responsive ESI) and identifying any time-sensitive sources, any employee status changes, and/or IT upgrades.  Also give thought to whether third-parties within your effective control have potentially responsive information.  Think about privilege concerns and the import of a claw back agreement.  The ultimate goal of this early phase is to spend time thinking about needs and issues that might arise over the life cycle of the matter.  Obviously, not every issue can be anticipated but you may be surprised how many can be assessed and addressed early in the discovery process.

Have questions?  Please contact me at kcole@farrellfritz.com.

Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes.   Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling conference, and lists several required topics for the conference, including preserving discoverable information. Although a litigant should use the Rule 26(f) conference to reduce the risk of spoliation claims through agreements on preservation, as well as reduce costs by limiting the scope of e-discovery, achieving results is almost entirely dependent on the attorney’s preparation.  Indeed, being well informed about your client, its documents ‒ including ESI ‒ and its goals will allow for a productive discussion rather than an empty formality.  But, how exactly do you prepare and what should you think about before the conference?

To prepare for the conference, it helps to think about the end game and to formulate the steps necessary to get there.  The below thoughts on preparation/topics are intended merely as a guidepost and are not exhaustive.

  • Understand your client’s ESI:  What kind of ESI is required to prosecute the client’s claims and defend against those of the adversary?  Where does that ESI reside?  To this end, it is important to become familiar with your client’s network architecture, including what hardware exists, and where.   You should strive to understand the client’s knowledge management (when/how is ESI stored), system knowledge (what is stored and where) and who is responsible for maintaining and storing data.  For example, are there physical email servers on site, or are the servers virtual?  What is necessary to access and collect data from each server?  Relatedly, give thought to addressing admissibility and how authenticity may be established over the documents (See The New Rules of Federal Evidence Have Arrived“).
  • Identify Custodians:  Take time to identify employees/custodians likely to have potentially responsive ESI.  Preservation comes at a cost and if you fail to understand your custodians, you may over-preserve.  Consider, for example, if the client is a national organization with offices throughout the U.S.  If all of the relevant custodians work out of the Omaha office, with all of the potentially responsive data located on a particular server, is there need to preserve the content of all other servers?  Consider interviewing those custodians to identify other relevant custodians.
  • Understand the timing and execution of Hold Notices, and Related Thorny Issues: At the conference the parties should determine the scope of the duty to preserve.  For example, be prepared to disclose (and ask adversary about) the status of the litigation hold.  Has one been issued?  If so, when and who received it.  If not, why not?  You may even seek to inquire about what subjects and sources the Hold covers and if there is any procedure in place for auditing compliance.  Are there any time-sensitive data sources involved and if so, have auto-delete and auto-archive functions been turned off for those data sources?  Is data from third-parties potentially responsive?  And, if so, what steps, if any, have been taken to preserve that data?   Have any key custodians left the company or potentially leaving?  If so, what steps are being taken to preserve his/her data?  Because of the large increase in e-data and the various locations where that data may reside, think about ways to narrow defensibly the scope of what you preserve.
  • Understand Collection:   While you may agree to preserve all of Katy Cole’s emails from 2010 to the present, that doesn’t mean you are agreeing to review for production all of that data.  What will be done to identify the materials that will be reviewed?  Can the parties agree upon search terms, date delimiters and other methodologies to limit the universe of material? Consider entering an agreement as to appropriate date ranges, custodians, systems, file types, and search terms.
  • Understand Privilege Obligations:  You should also discuss privilege during the Rule 26 conference.  Consider seeking a stipulation or Rule 502(d) order stating that disclosure of privileged information does not constitute a waiver of the attorney-client privilege in the instant or another proceeding.  Discuss whether a traditional privilege log is practical or burdensome for large volumes of ESI. Would it be preferable to log privileged emails by thread groups (i.e., a message and its attachments; related messages in a string of replies and forwards)?  Or are categorical logs (i.e., those that describe withheld categories instead of listing withheld records) preferable?
  • Understand Production Format:  Don’t leave format to the whim of your adversary.  Discuss expectations.  Indeed, there is little worse than receiving a thumb drive that contains various unsearchable PDFs (well, maybe a paper production is worse).  Discuss your production specifications and be prepared to produce in the same format you demand production.  Relatedly, is there any paper in the production?  If so, be certain to request that Optical Character Recognition (OCR [i.e., the process by which paper documents are converted into editable, searchable computer files]) be applied for ease text-search ability.  And, are you producing in a fell swoop or will the parties engage in phased discovery?

A meaningful and productive Rule 26(f) conference can streamline discovery, avoid unnecessary costs and avoid spoliation concerns.  It should be embraced as an opportunity to reach agreement and engage in a cooperative discovery process that will promote proportionality.

Have questions?  Please contact me at kcole@farrellfritz.com.