Maine Evidence and Electronic Discovery

Parties Need to Work Together to Identify the Best E-Mail Search Terms

So I've written about the benefits of properly conferring about possible search terms in connection with email searches being performed as part of e-discovery.  See, e.g., this post.  Typically both sides want to dictate the terms that will be used when a company runs searches for emails, but the rules require a give-and-take process that should lead in most cases to neither side getting exactly what it wanted.  And as I've written about before, there is real benefit in a company offering its own suggestions on the types of searches that are likely to be most fruitful in the context of a given case, rather than resisting altogether.  The latter approach is more likely to lead to a court imposing requirements more onerous than the parties otherwise could have adopted.

The recent case of Lapin v. Goldman, Sachs & Co., 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009), is instructive.  There, the plaintiff wanted the defendant to produce an entire collection fo about 300,000 emails; the defendant, in response, proposed to identify and produce from that universe only those emails that contained any of 75 company names included in plaintiff's document requests, plus 23 other search terms.  The plaintiff objected to using any search terms to narrow the universe of emails. 

In ruling on the discovery dispute, the court understandably looked at the defendant's offer and concluded that the "effort shows good faith."  Id. at *2.  But in spite of the plaintiff's intransigence, the court still permitted the plaintiff to have some say in identifying additional potential search terms.  The court direct plaintiff "to serve his own list of search terms, and then the attorneys and their computer experts must promptly hold a meeting with at least four hours of discussion about proposals for search terms.  Among other things, they should discuss (a) the estimated cost of the search and (b) the cost of a possible follow-up search with a supplemental list of search terms."  Id.

The court perhaps was more generous than it might have been; some courts when faced with a party that essentially has refused to participate cooperatively in the electronic discovery process will rubber stamp the other party's proposal, as there is nothing else on the table.  And the court also properly focused on the key issue in any e-discovery production:  the cost involved, balanced against the likely relevance of whatever might be produced.

Teaching Electronic Discovery in Law School

So I've been thinking recently about how electronic discovery procedures are taught to lawyers.  In recent months a number of commentators have complained that American law schools aren't doing enough - or even doing anything at all - to teach future lawyers about the rules and intricacies of electronic discovery.  See for instance "Teach Your Children Well" - A Case for Teaching E-Discovery in Law Schools, Slaying the E-Discovery Dragon: Are Law Schools Up to the Task?, and The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools  The authors make the points that e-discovery is here to stay, it is not a passing fad, and indeed e-discovery costs routinely consume large portions of major litigation budgets, so it undeniably is something worth learning about.  And as shown in many of the court decisions cited in this blog, the costs of failing to understand prevailing electronic discovery rules and practices can be extreme, both for lawyers and their clients.  So providing at least the basics of this relatively new area of the law to future lawyers surely would be a good thing.

But then again, a lack of e-discovery courses certainly isn't the only area in which law schools don't provide practical instruction on how to actually be a lawyer.  We all remember civil procedure class, a course that by its name might suggest that it's geared toward teaching the procedures of how to actually litigate a case.  But at least when I took it, most of the class was devoted to personal jurisdiction and due process issues,thorny federalism questions and other complex issues that typically don't arise in the average lawyer's practice on a daily basis.  There was no instruction or practice on how to draft a complaint, what a set of interrogatories should look like, how to take a deposition, the requirements for preparing a statement of material facts for summary judgment, or any of the other countless things a litigator has to do on a daily basis to advance a case. 

The classic description of law school is that it teaches future lawyers how to think, so that when they graduate and begin practicing, they have the tools necessary to figure out how to resolve legal problems.  Law schools simply cannot teach everything.  Unless law schools decide to fundamentally overhaul the entire education process, to redirect it toward the instruction of practical skills through hands-on learning, rather than Socratic teaching of a diverse and often unrelated range of substantive areas of the law, e-discovery will simply have to be added to the list of other practical things that law students need to learn on their feet after graduation.  If there is indeed a "crisis" in American law schools because they are not offering courses on e-discovery, then the lack of electronic discovery courses is only the tip of the iceberg.

Ethics of Metadata

In my post of December 2, 2008, I discussed the recent Maine Ethics Commission Opinion No. 196that addressed the issue of lawyers searching for metadata in documents provided by opposing counsel. 

I've written this article recently published in a DRI newsletter that surveysthe positions taken by other state bar ethics committees on the ethics of mining for metadata.  The issue is sure to continue to be addressed as more and more documents are exchanged electronically, even in the normal course of business and apart from the world of electronic discovery.

Computers Can't Do Everything in Electronic Discovery

So I’ve talked before about the new Federal Rule of Evidence 502, which generally provides that disclosures of privileged materials don’t waive the privilege if they were inadvertent and reasonable steps were taken to prevent the disclosure.  (See my posts of September 9thand November 2nd.)  Well what kinds of steps are “reasonable?”

I know my inbox gets clogged these days with unsolicited offers from electronic discovery consultants” and vendors who claim to be experts in e-discovery issues, many of which are trying to peddle various kinds of software that can be used to screen and sort through emails in an attempt to identify privileged emails based on search terms and other parameters the user can define.  Some of the offers sound too good to be true.  And in some cases they might be.

The temptation to assume we can just push a button and let a computer do all the work can be great, particularly when faced with the prospect of a large, expensive and time consuming document review.  But the simplicity of the process might come back to haunt you.

In Rhoads Indus., Inc. v. Building Materials Corp. of America, Civil Action No. 07-4756 (E.D. Pa. Nov. 14, 2008) (click here) , the plaintiff retained an IT consultant in anticipation of litigation.  As part of that preparation, the plaintiff also purchased a piece of software Discovery Attender or “Sherpa” that identifies emails and screens them for privilege, based on data input by the user.  The plaintiff later filed its lawsuit, and after the defendants served discovery requests, the plaintiff ran searches using Sherpa that identified about 210,000 emails, about 2,000 of which Sherpa tagged as privileged.  The plaintiff ran an additional more refined search that narrowed the results from 210,000 down to about 78,000 emails.  The plaintiff then manually reviewed some of the email mailboxes from which those 78,000 emails came, and identified some additional privileged emails – beyond the 2,000 that had been flagged by Sherpa already – and pulled them and listed them on a log; the plaintiff did not, for some reason, list the 2,000 privileged emails identified by Sherpa on the log.  The plaintiff produced the balance of the 78,000 emails.

A month or so later, one of the defendants informed the plaintiff that it had identified several apparently privileged emails among the tens of thousands produced by the plaintiff.  The plaintiff only then reviewed the entire collection of the 78,000 emails, and identified 812 additional emails that it contended were privileged and which it included on a new privilege log.  The plaintiff argued that all 812 of those emails should be returned; the defendants not surprisingly argued that the privilege had been waived.

The district court began its analysis by referencing a 5-factor test for inadvertent disclosures in place in that district for over a decade.  Under that test, the court focused on the following:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production.

(2) The number of inadvertent disclosures.

(3) The extent of the disclosure.

(4) Any delay and measures taken to rectify the disclosure.

(5) Whether the overriding interests of justice would or would not be served by

relieving the party of its errors.

Id. at 4 (internal quotation omitted).  The court observed that “Keyword and name searches are frequently employed as an initial method to screen and sort documents, but they are not foolproof.  For instance, privileged communications frequently creep into e-mail 'chains,' but may appear only to some participants in the chain depending on a user’s application of the 'reply' and 'forward' commands.”  Id. at 5.

In weighing the 5 factors, the court concluded that the first 4 weighed in favor of finding a waiver of the privilege.  Id. at 19.  Nevertheless, the court found that the fifth factor – the interest of justice – favored the plaintiff because “[l]oss of the attorney-client privilege in a high-stakes, hard-fought litigation is a severe sanction and can lead to serious prejudice.”  Id. 

Regarding the plaintiff’s failure to log the 2,000 emails Sherpa had identified as privileged until six months after they were withheld, the court found the plaintiff’s conduct inexcusable, and in breach of the privilege log requirements of Fed. R. Civ. P. 26(b)(5).  See id. at 17.  Upon reconsideration, the court clarified its holding with respect to non-logged emails, holding that segments of those 2,000 emails that had separately been logged with the 812 emails could be redacted from email strings in which they also were found within the 2,000 emails.  However, the court rejected the plaintiff’s argument that it should be able to shield any emails within an entire string, simply by logging the most recent email in the string.  See Rhoads Indus., Inc. v. Building Materials Corp. of America, Civil Action No. 07-4756 (E.D. Pa. Nov. 26, 2008) (click here).

Simple isn’t always better, nor is it always even adequate.