Today’s post comes from JAMS panelist, Martin Quinn, Esq., who specializes in resolving business and complex tort disputes and frequently acts as special master in complex federal and state actions. This is the first in a series of posts on e-discovery.
A special master was asked the other day to sign an e-discovery order that contained the following language, “Concordance Delimited Text File. At a minimum, this file must contain BEGDOC field. The delimiters for the file must be standard Concordance delimiters … ƥBegDocƥƥEndDocƥƥBegAttach…Etc.” I think you get the point….
Even judges and special masters with a considerable mastery of e-discovery legal and technical issues must grapple with computer search technology that is beyond any expertise they can reasonably acquire. In a world that has moved definitively to computer-assisted search and review of ESI (Electronically Stored Information), courts will increasingly need to determine whether a party has satisfied its discovery obligations by using machines and software to locate, preserve, analyze and review electronic material. Recent case law suggests that courts are answering these complex questions with a few fundamental, familiar rules grounded in common sense.
- Meet-and-confer early and often. Counsel should meet early and often throughout the case, with the involvement of technical consultants and the client’s IT personnel. Such meetings are required by Fed. R. Civ. P. 26(f)(3)(C), as a ruling in In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D. Cal., April 6, 2011) affirmed. Plaintiffs complained that Facebook refused to meet-and-confer on the terms of an ESI Protocol. Rejecting Facebook’s protests that a protocol was unnecessary and would impose “rigid upfront requirements” that would complicate and slow discovery, the court ordered the parties to meet-and-confer to agree on an ESI Protocol.
- Use a tiered approach to limit the scope of production. Courts and special masters should insist that the parties used tiered techniques, such as sampling and early case assessment, to test and refine search protocols, whether with key words or more sophisticated analytic tools. Only when those limited test runs have proved the validity of the preservation or search protocol should it be rolled out to a wider scope of documents. In short, baby steps work best. In Abu-Dhabi Coml. Bank v. Morgan Stanley, 2011 WL 3738979 (S.D.N.Y August 18, 2011) a special master ordered production of attachments to only 126 e-mails, reserving judgment on production of further attachments until the relevance of attachments had been confirmed.
- Insist on use of the most efficient search technology. Disputes about what technology to employ should be resolved by the parties. When courts must make such decisions, they routinely favor technology that will get the job done fastest, cheapest and with the least intrusiveness – even if the final result is not perfection. In Adams v. Allianceone, Inc., 2011 WL 2066617 (S.D. Cal., May 25, 2011), a magistrate judge declined to impose sanctions on a party for producing ESI in non-searchable PDF format rather than a searchable CSV (comma-separated value) format, because the receiving party could use commercially available software to extract the data from PDF into searchable form. In Seven Seas Cruises, etc. v. V. Ships Leisure SAM, 2011 WL 772855 (S.D. Fla., February 19, 2011), the court ordered an unsophisticated defendant to retain an e-discovery consultant, to use Boolean search terms and to produce ESI in native format with load files.
In each of these cases, the court reluctantly dove into technical issues, but resolved them efficiently. While the exact mechanisms for storing, accessing and searching data are always changing, the basic protocols for e-discovery are a constant that practitioners can count on.