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ABA TECHSHOW 2008: A Real World EDD Motion Hearing (Litigation Track)

By Mazyar Hedayat | Monday, March 17, 2008


Presenters: Judge Herbert Dixon, Todd Flaming, Browning Marean, and Tom O'Connor
Thursday, March 13 at 9:30 am

This session delivered a solid combination of animated discussion and creativity (try that the next time you have an eDiscovery issue!). Basically this session provided an opportunity for a capacity crowd of confused (and perhaps a bit frightened) litigators to find out something (anything, really) about eDiscovery from a panel of pros, including a Judge — and the panel did not disappoint. Here's how they played things out in a courtroom drama staged for our benefit:


Judge Dixon as The Judge
Todd Flaming as Counsel for the Plaintiff
Browning Marean as Counsel for the Defendant
Tom O'Connor as The eDiscovery Expert

Back-Story (Zubulake Redux)

Plaintiff, an employee of a certain age at Defendant corporation, had been terminated. Defendant is big, rich, and sophisticated enough to rely on an in-house law department and well heeled outside counsel when drawing up memos, holding meetings, and going on the record. As the story opened a motion was before the Court to discover electronically stored information (ESI) from within the Defendant's computer systems.

[Note: While nobody on the panel came out and said it, these facts track those in Zubulake v. UBS Warburg — the 800 pound gorilla of eDiscovery decisions — with a dash of Williams v. Sprint/United Management Co. and Qualcomm v. Broadcom Corp. In Zubulake, Judge Shira Scheindlin found that the defendant failed to comply with an eDiscovery request and instead tried to "scrub" data before handing it over. The Court awarded massive damages to the defendant. That decision gave birth to today's eDiscovery industry.]

Act I: Motion to Compel eDiscovery Compliance

The first act of the play was the Plaintiff's Motion to Compel eDiscovery. Before beginning, the Judge noted what the Attorneys should have done already [but as it turns out, had not done].

Exchange information regarding:

• Computers (number, location, users)
• Hardware/software custodian
• Network setup and custodian
• Document destruction policy
• Information storage policy
• Information backup policy

Discuss the following with respect to ESI:

• The scope of any eDiscovery requests.
• Formats for production of information.
• Native formats v. PDF, TIFF, etc.
• Privilege and redaction considerations.
• Reasonableness of information sought.
• The cost of access to that information.

The Judge heard arguments.

Flaming for the Plaintiff

• Plaintiff demands to see native files i.e. in their original format with metadata intact.

• Plaintiff's expert needed full indexing of systems in order to provide context for what it did find.

• The Defendant has been careful to hide telltale signs of culpability so the Plaintiff needs to look carefully to document its case.

• Plaintiff needs data going back a decade in order to support its claims of age-based discrimination.

Marean for the Defendant

• Plaintiff's discovery request was unreasonable in its scope (this was a big company after all ...).

• The cost of indexing the full system would be excessive on the Defendant.

• Established law sets out a 3-prong test for determining whether a discovery request is "reasonable" [a cost-benefit determination].

Going back 10 years (or even 6 or 7) would result in a mess of legacy systems, incompatible formats, and crippling expense.

The Decision

The Judge took the state of ESI search technology into account, including the need to keep files in original (native) format as well as the use of the decades-old keyword search and the more cutting-edge concept search. In the end the Judge split the electronic baby down the middle, ruling that:

1. The Lawyers should meet again to craft a mutually agreeable eDiscovery schedule.

2. The concepts of keyword and concept searching should be kept in mind.

3. The Defendant was to produce at least the following in their native formats:

• Spreadsheets
• Meeting minutes/handouts
• Reports
• Emails with full threads and attachments

Act II: Motion to Preserve ESI

The play's second act presumed that certain types of ESI had been made available for examination by the Plaintiff's expert. The scene opened with Tom O'Connor on the stand, being questioned by Plaintiff's Counsel.

Response to Plaintiff's Counsel

• Data was not given in its native format.

• Data had been scrubbed by Defendant.

• Evidence of data scrubbing included:

- Lack of metadata in any document.
- No formulas found in the cells of spreadsheets.
- Documents hyperlinked to other documents were missing.
- The word "discriminate" was nowhere to be found (too clean).

Response to Defense Counsel

• eDiscovery software used was not Unicode Compliant and therefore could have missed information in non-traditional languages or using non-traditional symbols.

• Without access to the Defendant's privilege log the Plaintiff's Expert could not decipher much of what he was examining, much less put it in the proper context.

Following the Expert's testimony Plaintiff's Counsel asked that an adverse inference be drawn with respect to the Defendant (the kiss of death to a jury) and that appropriate monetary or other sanctions be applied. Counsel for the Defendant was quick to blame the problem on the Expert, implying that his examination had not be thorough enough.

The Decision

The Judge first warned that an over-inclusive order could hobble the business of the Defendant, doing more harm than good, while a watered-down order would allow potential destruction of vital evidence. The balancing of interests undertaken by the Court in such situations would have to include

• The need for preservation of evidence, versus
• The possibility of a loss of information, versus
• The potential damage of a broad order, versus
• The potential for damage in a restrictive order.

In the end the Judge relied on the credibility of the Expert. On that basis the Defendant had violated the spirit, if not the letter, of the law. In the final analysis however, the Court's position was restrained and provided that:

1. Further searching of the Defendant's computer records was needed.

2. Even though no sanctions would issue this time, they remain a possibility if:

• Scrubbing is determined with certainty to have taken place.

• The Defendant fails to produce evidence it is legally required to keep on file.

• The Defendant can be shown to have acted in bad faith.

• The most damaging evidence was destroyed/scrubbed.

Curtain Call

In the end, Judge Dixon wrapped up by advising attendees to refer to materials on the ABA's Web site as well as those of the Federal Judicial Center, the National Conference of State Court Judges, and of course the Federal Rules of Civil Procedure, all of which are useful in determining how to deal with the evolving field of eDiscovery. He also suggested reading Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, and Managing Discovery of Electronic Information: A Pocket Guide for Judges.

Read more firsthand reports from ABA TechShow 2008.

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