Maine Evidence and Electronic Discovery

Creating a Record of Cooperation Can Be Useful for When Disputes Arise Down the Road

A recent decision reinforced the notion that electronic discovery shouldn’t be entirely one-sided, with the requesting party calling all the shots.

In Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 28, 2008) (click here), plaintiff wanted the defendant to run key word searches through its databases of email.  Plaintiff originally provided defendant with a list of 120 key words to use as search terms.  The defendant ran the searches with those terms, identifying what the court described only as a “large number of items.”  Id. at *1.  The plaintiff revised the search term list and provided a new list of 123 search terms.  The defendant again ran searches using those terms, reviewed and produced an agreed-upon subset of those results, totaling about 1 million pages.  See id. 

The plaintiff then provided the defendant with a new list of 6 search terms within a certain proximity to other terms.  That’s where the dispute arose.  The defendant apparently thought the plaintiff wanted an entirely new search of just the new terms; the plaintiff, instead, wanted the new search parameters applied to the previous list of 123 search terms, in effect identifying a subset of the 1 million pages identified before.  Not understanding that, the defendant ran an entirely new search, identifying more documents and producing some of them.

Before that production was complete, the parties realized they were operating under a misunderstanding.  Defendant agreed once again to run a new search using the 123 terms plus the 6 new terms.  That refined search identified 100,000 documents, which defendant estimated to run about 1.3 million pages.  The defendant, not surprisingly, balked at having to review all of those materials for privilege, in light of its prior production of 1 million pages of what it characterized as irrelevant materials.

The court sided with the defendant, based in large part on the demonstrated history of the defendant’s cooperation and willingness to continually refine the searches as requested by the plaintiff.

At some point, given the large amount of time and money which has been spent so far on document production, it becomes the plaintiff's burden to show that the cost to review and produce even more documents is outweighed by their likely relevance to the key issues in this case. That showing has not been made. The only things that appear likely true, from the briefs filed by both sides, are that either set of keyword searches produced a very large number of irrelevant documents, that Abercrombie has already reviewed and produced a very large number of documents, and that it will take a lot more time and money to review the documents still in dispute. Without some showing that the plaintiff is likely to get at least a moderate benefit from that process, the Court is not inclined to order it.

Id. at *2.

The court did keep the door slightly ajar on further keyword searches, if “a person conversant with both key word searching and the types of documents produced to date could make an educated guess about why these two searches have turned up so many irrelevant communications” and could then suggest a more refined approach more likely to lead to both less documents and more relevant documents.

From the responding party’s perspective, there are advantages to creating a record of cooperation at the outset, rather than automatically resisting from the start.

Maine Supreme Judicial Court Puts Hold on New Evidence Rule 514

In my post of October 29, 2008, I reported on a new Me. R. Ev. 514 that had been adopted by the Maine Supreme Judicial Court, effective as of January 1, 2009.  The new Rule 514 would recognize a privilege for certain statements made during mediations.

Since then, the new Rule 514 has been the subject of some criticism and concerns about how it might interact (or even conflict) with existing Me. R. Ev. 408, which already provides protection for certain communications made in the context of offers to compromise.  See, e.g., Jonathan A. Reitman, ADR:  Bumps in the Road of Maine's New Rule of Evidence 514, Maine Lawyers Review, vol. 16, no. 22, at 16 (Nov. 20, 2008).

Perhaps heeding some of those concerns, the Supreme Judicial Court has now issued 2009 Me. Rules 3, effective as of December 12, 2008, which states simply that "the effective date of the rules amendment in 2009 Me. Rules 1, adding Rule 514 to the Maine Rules of Evidence, is stayed until June 1, 2009, to permit further review and consideration of Rule 514."

So we will have to see what changes are made to the proposed Rule 514 next spring.

Things Best Left Out of Emails

It's no surprise by now that emails are a big focus of discovery in many lawsuits today.  Cases can be won or lost based on stray comments or remarks made in an email that management might not have even known existed until the midst of a thorough and costly production of years worth of email during litigation.

I came across this recent article on the ABA Journal that includes a helpful, somewhat tongue-in-cheek list of several things that should raise red flags for document reviewers scouring through an opposing party's email.

Here is the list from that article:

• "Delete this email immediately."

• "I really shouldn't put this in writing."

• "We're going to do this differently than normal."

• "I don't want to discuss this in e-mail. Please give me a call."

• "Don't ask. You don't want to know."

So whichever side of the lawsuit you're on, if you come across any emails with sentences like those, you'll probably want to read them a little more closely.

Judge Orders Lawyer to Remove Deposition from YouTube

There may be some limits to what you can do with a deposition.

An article on Law.com today is reporting that a plaintiff’s lawyer in a lawsuit pending in state court in Texas was taken to task for posting an excerpt of a deposition of one of the defendant’s employees on YouTube, with a link to the posting on the plaintiff’s law firm website.

According to the article, the defendant didn’t appreciate the publicity, and filed a motion seeking sanctions and a protective order barring plaintiff’s counsel from using the discovery process for harassment.  The state court reportedly issued an order on December 3rd, directing the plaintiff’s lawyer to remove the deposition excerpt from YouTube and to delete the link on the law firm website.  Apparently the court’s rationale was that the deposition was not a public record, because it had not been filed with the court, and therefore the plaintiff had no right to post it on YouTube.

In response, the plaintiff’s counsel reported that he plans to file a paper transcript of the deposition with the court, and then post the entire deposition video – rather than just an excerpt – back on YouTube.

The order requiring the plaintiff’s counsel to delete the deposition excerpt from YouTube because it was not a public record seems unusual, in that depositions normally are not deemed to be confidential absent issuance of an appropriate protective or confidentiality order by the court that governs the discovery process; no such order was in place in that case.  The ruling may have the unintended consequence of causing parties needlessly to file copies of discovery documents and depositions with court clerks, clogging court files unnecessarily, if lawyers view the practice as a means to cloak all sorts of things under the public record mantle used as a test by that court.

Be Sure to Produce a Witness Capable of Addressing IT Issues When Requested Under Rule 30(b)(6)

When a party is asked to produce a deponent who can explain the company’s email and computer systems, the question of who to produce as a witness can be tricky.  Sometimes the in-house IT employees, who may have the most knowledge, might not make the best witnesses.  On the other hand, designating another employee who may come across better, but who needs to be brought up to speed on technical issues that may be outside his or her domain, can be a challenge.  A recent decision reminds us that, if you take the latter approach, you’d better make sure you really do educate the witness sufficiently to answer the questions.

In Ideal Aerosmith, Inc. v. Acutronic USA, Inc., 2008 WL 4693374 (W.D. Pa. Oct. 23, 2008) (click here), the case involved an alleged use of the plaintiff’s trade secrets through emails acquired by the defendants.  The plaintiff sought sanctions against the defendant for failing to produce a witness capable of answering a series of questions about topics identified in a Rule 30(b)(6) notice concerning the defendant’s e-mail systems, other computer systems, and backup policies and procedures.  In discovery, the defendant apparently produced only one document in response to discovery requests, although later acknowledged that at least some responsive email did exist.  The defendant argued that “the only source of such information is an independent consultant in Switzerland … who will not consent to testify on behalf of” the defendant, and therefore the plaintiff should have pursued the consultant in Switzerland.  Id. at *2. 

Regarding the Rule 30(b)(6) process, the court observed:

In modern litigation, discovery almost always involves the production of documents stored on computers, servers and other electronic facilities. It is commonplace in litigation to inquire of a corporate defendant the steps it took to find and produce documents relating to the litigation, as well as the corporation's electronic document storage and retrieval systems, in order to ensure that discovery was diligently completed. Where a defendant … has failed to produce any meaningful documents in response to Plaintiff's discovery requests, the need for and relevance of this inquiry is unquestionable.

Id. at *3. 

The defendant’s Rule 30(b)(6) designee on the IT topics “was unable to answer the most basic questions on these topics,” “could not identify which computers were searched for documents, any backup tapes or other media that were searched, or what backup media was used … to store electronic data.”  Id. 

The court found those failings significant, and reiterated the duty the defendant had to properly educate its designated witness, stating that the witness “had an obligation to educate himself on this issue if it was reasonable to do so,” could have “prepared himself, either through documentation prepared by [the Swiss consultant] or conversations with him, to answer even the foundational questions posed by counsel for Plaintiff at the 30(b)(6) deposition.”  Id.

As sanctions, the court declined plaintiff’s invitation to enter default judgment against the defendant.  Instead, the court ordered the defendant to reimburse plaintiff one-third of plaintiff’s expenses and fees for preparing for and attending the unproductive deposition and all of plaintiff’s fees and expenses in preparing the motion for sanctions.  The court also ordered the defendant to produce someone knowledgeable for deposition locally (not in Switzerland) to answer questions related to the topics identified by the plaintiff.

Maine Ethics Commission Issues Opinion on Obligations Concerning Metadata

The Maine Professional Ethics Commission recently issued Opinion # 196, on October 21, 2008, that addresses two important questions concerning lawyers’ ethical obligations regarding metadata that may be found on electronic documents transmitted from one party to another:

first, whether it is ethical for an attorney receiving electronic documents (the “receiving attorney”) to make efforts to uncover embedded metadata that contains confidential information not intended to be communicated by the attorney transmitting the document (the “sending attorney”); and second, whether the sending attorney has an ethical duty to take reasonable measures to remove metadata containing confidential information before document transmission.

The commission reached the following conclusions:

1.  Without authorization from a court, it is ethically impermissible for an attorney to seek to uncover metadata, embedded in an electronic document received from counsel for another party, in an effort to detect confidential information that should be reasonably known not to have been intentionally communicated.

2.  A sending attorney has an ethical duty to use reasonable care when transmitting an electronic document to prevent the disclosure of metadata containing confidential information.

The commission noted that most lawyers today exchange documents with opposing counsel from time to time in electronic form, often via email.  Those documents often contain metadata.  Most people today are at least vaguely aware of that fact, but many may not know much more about what types of metadata might exist, or how to get rid of it.  In light of the commission’s opinion, pleading ignorance isn’t likely to be well received in the future.

The commission provided a thorough, detailed discussion of the various approaches taken by the American Bar Association (“ABA”) and other states.  Other jurisdictions have adopted inconsistent approaches “regarding the ethical duties of receiving attorneys in probing documents for metadata containing confidential information,” but “there is greater harmony among the jurisdictions with respect to the duties of sending attorneys to take reasonable measures to minimize the prospect that such data will be inadvertently transmitted.”  The Maine commission strived to adopt “a balanced view, articulating reasonable ethical duties on both the receiving and sending attorneys.”

Duties of Receiving Attorneys

The commission first addressed the duties of attorneys who receive electronic documents, and whether they are free to probe the documents in search of hidden metadata.  As with many things, New York addressed the issue first, and has advanced the approach (now followed in Maine) that recipients of electronic documents “have an obligation not to exploit an inadvertent or unauthorized transmission of client confidences or secrets.”  A few other states, including Florida and Alabama, have followed New York’s lead.

Other jurisdictions, in contrast, have shifted the burden essentially entirely onto the sending party, absolving the recipient of the need to refrain from probing to see what metadata might be lurking behind the scenes. The ABA, for one, has said that its model rules “do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents,” and it’s up to the sending lawyer to scrub them first.  Maryland and Colorado have followed the ABA’s position.

Still other jurisdictions, like Pennsylvania and the District of Columbia have adopted hybrids of the two extremes, but seem to be much closer to the ABA side of things.

The Maine commission found the New York rule to be the “better view” for several reasons.  The commission concluded that “an attorney who purposefully seeks to unearth confidential information embedded in metadata attached to a document provided by counsel for another party, when the attorney knows or should know that the information involved was not intended to be disclosed, has acted outside of these broad ethical requirements.”  Going further, the commission stated, “Not only is the attorney’s conduct dishonest in purposefully seeking by this method to uncover confidential information of another party, that conduct strikes at the foundational principles that protect attorney-client confidences, and in doing so it clearly prejudices the administration of justice.”  By probing for hidden metadata, according to the commission, “the receiving attorney is making purposeful efforts to probe for information he or she knows or should know to be confidential and not to have been knowingly communicated by opposing counsel. That such conduct is dishonest and designed to prejudice the administration of justice seems beyond dispute.”

So as determined by the commission, “an attorney may not ethically take steps to uncover metadata, embedded in an electronic document sent by counsel for another party, in an effort to detect information that is legally confidential and is or should be reasonably known not to have been intentionally communicated.”

Duties of Sending Attorneys

But the responsibilities don’t lie just with recipients.  Even though recipients are not supposed to look for hidden metadata, senders can’t simply send electronic versions of documents without giving the issue any thought.

The Maine commission noted that, unlike the dispute concerning the duties of recipients, “there has been relative unanimity in dealing with [the duties] of sending attorneys.”  Under the New York rule, “sending attorneys have a duty to take reasonable measures to guard against improper disclosure of confidential information contained in metadata in documents transmitted to other parties.”  Florida, Alabama, Maryland, Colorado and Pennsylvania have more or less said the same thing, although states that follow the ABA’s approach for recipients of electronic documents tend to place a heavier burden on the senders, some even suggesting that lawyers should employ computer consultants to help them scrub all of their documents.

The Maine commission did not go quite that far, instead adopting the familiar “reasonableness” standard that exists in so many areas of the law.  The commission “agree[d] with the other jurisdictions that attorneys are ethically required to take reasonable measures to avoid the communication of confidential information, regardless of the mode of transmission.”  What exactly those “reasonable” measures should be is left to a case-by-case analysis, although the commission did offer some suggestions. 

If an attorney is in doubt, many documents can be readily converted to generic files (such as PDF) which retain little of the metadata contained in word processing documents, and of course resort can be made to paper copies where issues of metadata confidentiality are significant. Although we do not believe that an attorney’s ethical duties dictate, in routine work, the retention of a computer expert for these purposes, we also do not believe it reasonable for an attorney today to be ignorant of the standard features and capabilities of word processing and other software used by that attorney, including their reasonably known capacity for transmitting certain types of data that may be confidential.

The commission was careful to note that its pronouncement was “not intended to deal with the extent to which relevant information may be sought in litigation through proper discovery under the guidance of a court.”

So there is now another reason to be careful about what you send to opposing counsel.

The Sometimes Impossible Task of Meeting Document Preservation Obligations

Sometimes the duty to preserve electronic data can extend to data that a party doesn't even know exists.

That was the holding in Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008) (click here).  In that case, the plaintiff (who was a lawyer) sued a company and some of its officers, alleging violations of an Ohio law that restricts unsolicited emails.  During discovery, the  defendants sought access to the plaintiff’s personal computer and a mirror image of plaintiff’s hard drives, in order to determine whether there was any electronic evidence suggesting that the plaintiff had solicited the emails by accessing various websites.

The plaintiff argued that he had “saved and preserved all of his commercial email since January 1, 2006,” which already had been produced, and that “no Defendant in this case has ever requested that he place a litigation hold on any other type of electronically stored information resident on his computers” until February 2008.  In spite of that, the court concluded, with little analysis, that the plaintiff’s preservation obligations extended well beyond both what he had done and what the defendants previously had requested.

The court found that the plaintiff’s document preservation efforts “do not sufficiently fulfill his duty to preserve evidence.”  Although the decision does not explain what exactly it was that the plaintiff failed to do, it appears that the court was concerned with the fact that the plaintiff had not taken steps to stop his computers from automatically overwriting data files that record details about Internet surfing.  Probably few non-IT computer users even know where such data files exist on their hard drives, how to preserve or image those files, or the effects of tampering with arcane aspects of their home computers’ operations.  So it's surprising that the court ruled that the plaintiff had breached his duty to preserve data, and that the defendants were them permitted to examine the plaintiff’s computers as a remedy for that apparent breach.

To lessen the likelihood of revealing confidential or privileged information to the defendants (remember, the plaintiff is a lawyer who used his computer for both personal and client-related business), the court set up a protocol in which the plaintiff’s forensic expert would first image the hard drives, then plaintiff would remove certain documents he believed included personal confidential information (like his bank account data), then the defendant’s forensic expert would access the hard drives and work with the plaintiff to identify and cull out data that the plaintiff contends is privileged.  According to the court, despite the fact that the defendant’s expert would be in a position to view that privileged data, he would be precluded from disclosing anything about it to the defendant – who is paying for the forensic work. 

In an attempt to minimize waiver of privilege concerns, the court sua sponte designated both sides’ experts as “officers of the court.”  The court did not explain exactly what that means, or how that designation would impact each sides’ experts going forward.  Although having the experts work together as officers of the court could be helpful in assuring that none of the data was improperly handled, it certainly would be more costly than having a neutral examiner appointed by the court (whose fees could be shared by the parties, rather than each side paying its own expert’s fees entirely for potentially duplicative work). 

Moreover, the court’s solution places at least the defendants’ expert in the awkward position of having knowledge of information that he can neither share with the party that retained him or use in any manner in forming his opinions in the case going forward, to the extent there is additional work in the case.  The court's resolution of the dispute probably raised more concerns than it answered.