A US District Court in Texas found you need more than general allegations of continued wrong doing to require on-going data preservation and granted the Defendants motion for a protective order. The Que Tam case of King v. Solvay the Court found the allegations contained in the complaint do not justify the broad timeframe for discovery that Plaintiff’s sought. Plaintiffs used language in the complaint such as “from 1996 to 2002 and beyond,”“…1994 to the present.” According the Court “a few generalized allegations that conduct continued “to the present” in a 267-page complaint containing more than 768 paragraphs does not justify the burden and expense associated with unfettered discovery “to the present” in a case in which discovery is already going to be incredibly expensive and time-consuming.” “The proposed Discovery and Preservation Cut-Off Dates are reasonable and necessary to ensure that the preservation and discovery costs are not overly broad, unduly burdensome, and unreasonable in relation to the well-pled allegations in the fifth amended complaint.”

Full opinion here:

http://bit.ly/16pS3qW

UNITED STATES OF AMERICA ex rel. JOHN KING, et al., Plaintiffs, v. SOLVAY S.A., et al., Defendants.

Civil Action No. H-06-2662.

United States District Court, S.D. Texas, Houston Division.

March 5, 2013.

A couple of high level checklists provided by California and Delaware courts:

http://courts.state.de.us/Chancery/docs/SampleDocCollectionOutline.pdf

http://www.cand.uscourts.gov/filelibrary/1118/ESI_Checklist.pdf

Thouight this would be really helpful. Overview of legal hold basics. Written by Mikki Tomlinson

Original Link Here:

http://ediscoveryjournal.com/2013/01/legal-hold-faqs-part-ii/?utm_source=eDiscoveryJournal+List&utm_campaign=892cdeff2a-Newsletter_13_01_2013_10_2013&utm_medium=email

This is the second in a series of blogs about legal hold. As I wrote in Part I, I have received an influx of questions about legal hold over the last several months. More specifically, around how legal hold really works on the corporate side of the fence. All of these questions have come from legal professionals – some that are new to eDiscovery, some that deal with eDiscovery on a semi-regular basis, and some that deal with eDiscovery quite often but are not in the legal hold trenches of a corporation. Thus, I set out to write this FAQ blog series.

I received a great deal of email in response to Part I of this blog series. Those emails were specific questions to which I responded directly; however, I will also incorporate them into this series (the anonymity of those presenting questions will be maintained). If you have questions relating to effecting legal hold in an enterprise, please feel free to reach out to me at Mikki@eDJGroupInc.com.

For purposes of clarity and consistency, the use of “legal hold” terms as defined in Legal Hold FAQ’s – Part I are repeated directly below.

The phrase “legal hold” is broad. For purposes of this discussion, legal hold is defined as part of the preservation phase of a litigant’s obligations; legal hold is not the processing, review, production or presentation phase of discovery. I find that legal hold is most easily digested when broken down into three core parts: (1) legal hold notification; (2) preservation in place; and (3) preservation by collection. Note: Legal hold can – but does not always – encompass actual physical collection of documents for preservation. Conversely, legal hold can – but does not always – encompass notification of data and document preservation. In other words, legal hold may include any one or combination of (1), (2), and/or (3).

1.   Legal hold notification. Legal hold notification is the process by which counsel advises “custodians” and “stewards” of data and documents of their obligations and responsibilities related to management of information subject to legal hold.

a.   Custodian of Data: A person in charge of creating, maintaining and/or managing data. A custodian of data may also be referred to as an owner of data.

b.   Steward of Data: A person in charge of a computer system or process. A steward of data is generally responsible for the system that holds the information, but is not responsible for generating the content that is stored in the system.

2.   Preservation in Place: Preservation in place means that information is preserved in its current location. The two most common ways preservation in place is carried out are:

a.   Custodian/Steward: Preservation by way of custodians and/or stewards managing same (e.g., ensuring that data is not deleted).

b.   Physical Preservation: Preservation by physically locking down data within its storage location/system in a way such that the data cannot be deleted by an end user.

3.  Preservation by Collection: Preservation is managed by way of collecting a copy of data and maintaining same in a secure location. Ideally, collection is carried out in a “defensibly sound” manner (e.g., metadata is in tact and the collection is auditable).

Legal Hold FAQ’s – Part II:

How do corporations staff the legal hold function? There is not one specific model that is a guaranteed winner. The number of personnel, position types, and reporting hierarchy are dependent upon many things, among those: (1) litigation footprint; (2) corporate culture, and (3) risk tolerance. Here are a few models that I have worked with; again, which one might work best in your organization is subjective and requires an assessment of your unique culture and needs.

What information should a legal hold notice have? Although one can always find an exception, a legal hold notice will generally contain the items listed below. The decision as to what goes into each notice is made by counsel and on a case-by-case basis. *Note: none of the information herein is or should be interpreted as legal advice; this information is provided for purposes of sharing in-the-trenches experience of a non-attorney eDiscovery professional.

1.    A description of the matter;

2.    Scope of documents and information subject to preservation obligation (such as description, types, date range);

3.    Instruction on preservation obligations; and

4.    Who to contact with questions.

Who receives legal hold notices? Just as with what goes into a notice, it is ultimately up to counsel to determine who will receive the notice. Here is a typical run down and definition of those that counsel might select to receive a notice:

1.    Legal hold custodians: Employees that counsel believes may have created or may be in control of data subject to the preservation obligation;

2.    Termed legal hold custodians: Former employees that counsel believes may have created or may have been in control of data subject to the legal hold obligation; the notice typically to the former employee’s successor and/or supervisor;

3.    Data stewards: Employees that are responsible for systems that counsel believes may contain data subject to legal hold. Note: a data steward is typically not responsible for, and may not have specific knowledge of, the content created in the system. Rather, a data steward is responsible for the system itself (e.g., a database administrator).

4.    Executives and business unit leads: Courtesy/FYI copies may be sent to certain executives and/or the managers of business units for informational purposes.

5.    Legal team members: Members of both in-house and retained counsel team members receive courtesy copy for file.

What components outside of the notice itself are part of the framework? There is not a one size fits all solution (I’m beginning to sound like a broken record). However, there are standard components that can go into a solid legal hold program; these are listed directly below. Which components are in place and the weight of importance given to each are unique to each organization.

1.    A method for custodians to confirm receipt and acknowledgement of their responsibilities as a legal hold custodian.

2.    A method for custodians to indicate others that may also be subject to the legal hold.

3.    A process to issue a legal hold upon a triggering event.

4.    A systematic trigger to amend a legal hold when necessary (e.g., when an amended complaint is filed).

5.    A method to audit legal holds. For example, an audit program might include, but is not limited to, testing the following statements:

a.    Legal holds are issued and amended quickly upon triggering events;

b.    Oversight of custodian acknowledgement of legal holds is managed;

c.    Legal holds are released in a timely manner.

Stay tuned for Legal Hold FAQ’s – Part III. If you have a legal hold question, please post it in the comments section below or email me directly.

eDJ Group Consultant and eDiscovery Journal Contributor – Mikki Tomlinson (mikki@eDJGroupInc.com)

Thanks to the Applied Discovery blog for a summary of cases that followed the Race Tires decision that disallowed most e-discovery costs under USC 1920. Most e-discovery cost recovery disputes follow the Race Tires decision. Will be interesting to see if additional appellant courts address the issue. Personally, I think the 3rd Circuit took a too narrow decision of what constitutes copying under 1920.

http://www.applieddiscovery.com/ws_display.asp?filter=Monthly_Case_Summary_Alert_Detail&item_id=%7BE6256A7C%2D1369%2D4869%2D9821%2D4ED388582C5F%7D&source_filter=Monthly%5FCase%5FSummary%5FAlert&bookmark={E6256A7C-1369-4869-9821-4ED388582C5F}&keyword=December%202012#here

Several recent cases demonstrate how courts are lavishing attention—if not praise—on the Third Circuit’s monumental decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp., No. 11-2316, 2012 U.S. App. LEXIS 5511 (3d Cir. Mar. 16, 2012). There, the court, overturning the district court and bucking 2011’s apparent trend, adhered to the law’s plain language and limited the scope of taxable costs by a prevailing litigant under 28 U.S.C. § 1920(4). The statute allows recovery for “the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

In Race Tires, the court refused to tax an “electronic discovery consultant’s charges for data collection, preservation, searching, culling, conversion, and production.” The court permitted recovery only for specific costs analogous to “copying,” reasoning that “Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today’s technology requires technical expertise not ordinarily possessed by the typical legal professional.”

Since then, several district courts have followed the Third Circuit’s lead, limiting a prevailing party’s recovery under section 1920(4) with respect to electronically stored information (“ESI”). Some of the more recent cases from the Seventh, Ninth, and Eleventh Circuits are discussed here.
In Finnerty v. Stiefel Laboratories, Inc., No. 09-21871-CIV-KING, 2012 U.S. Dist. LEXIS 148532 (S.D. Fla. Oct. 16, 2012), the court refused to allow the recovery of costs related to the creation and use of an electronic database, citing Race Tires for the notion that “Congress’s amendment of Section 1920(4) did not expand taxable costs beyond digital copying to the creation of new, modified, or enhanced digital files.” Examining the historical perspective of the law, much like the Race Tires court, the Finnerty court pointed out that the Congressional committee responsible for proposing the new section 1920(4) language “considered ‘whether the list of taxable costs should be amended to include expenses associated with new courtroom technologies’” but ultimately “determined that such breadth ‘might well go beyond the intended scope of the statute.’”

On the same day, in Johnson v. Allstate Ins. Co., No. 07-cv-0781-SCW, 2012 U.S. Dist. LEXIS 148282 (S.D. Ill. Oct. 16, 2012), the Southern District of Illinois followed Race Tires. The court refused to tax the “‘creating of [a] litigation database, processing of ESI, extraction of metadata, and rendering [of] ESI word searchable,’” as well as deduplication and “the preparation of productions of ESI.”

Likewise, the Northern District of Alabama followed Race Tires’ “thorough, reasonable, and persuasive interpretation of” section 1920(4) in rejecting a prevailing party’s request for fees associated with its e-discovery database in Abbott Point of Care, Inc. v. Epocal, Inc., No. CV-08-S-543-NE, 2012 U.S. Dist. LEXIS 159042 (N.D. Ala. Nov. 5, 2012). Although it was “sympathetic to the practical arguments advanced by” the prevailing party, the court declined to extend the scope of the Third Circuit’s interpretation of section 1920(4).

The Northern District of California seemed more reluctant to follow the Race Tires decision, though it did so in two cases. In Plantronics, Inc. v. Aliph, Inc., No. C 09-01714 WHA (LB), 2012 U.S. Dist. LEXIS 152297 (N.D. Cal. Oct. 23, 2012), the court denied recovery for more than $200,000 of ESI processing costs, including costs of third-party data production, copying and extraction to the program it used to create forensic images, and file conversion, except for actual TIFF conversion costs, which the losing party had agreed to pay. In addition, the court cited the U.S. Supreme Court’s decision in Taniguchi v. Kan Pacific Saipan, 132 S. Ct. 1997 (2012), that reversed the Ninth Circuit and refused to tax costs for a translator. In Taniguchi, the Court slammed the Ninth Circuit’s expansive reading of the word “interpreter” from section 1920(6).

But another decision by the Northern District of California court disregarded Race Tires altogether. Deciding Petroliam Nasional Berhad v. GoDaddy.com, Inc., No. C 09-5939 PJH, 2012 U.S. Dist. LEXIS 64555 (N.D. Cal. May 8, 2012), less than two months after Race Tires and just days before the U.S. Supreme Court issued its Taniguchi opinion, the GoDaddy court embraced a broad reading of section 1920(4) to permit the taxation of a party’s e-discovery costs for converting computer data into a readable format. But the court’s rationale is in question after Taniguchi.

Beyond Race Tires, no other appellate authority currently exists on the issue of taxability of costs for ESI, and the U.S. Supreme Court has declined to weigh in on an appeal of Race Tires. Thus, as 2012 draws to a close, the Third Circuit remains—for now—the voice of authority on this controversial subject.

Introduction:

Traditionally creating a privilege log is one of the most labor intensive, time consuming, and expensive steps of the discovery process. However, through the use of project management, work flow analysis, and review platform technology, defensible consistent privilege logs can be created within budget and on schedule. This article is based on the use of Relativity, although other review platforms have similar features and abilities.

Background:

FRCP 26(b)(5) states: “When a party withholds information not otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must:

i. Expressly make the claim; and

ii. Describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim

This requirement is commonly satisfied by filing a privilege log. Generally, it is the withholding party’s burden to provide sufficient information on its privilege log to allow the opposing party or court to test the claim of privilege. Specific privilege log content requirements are generally jurisdiction-specific, and requirements vary. For a recent example see ePlus, Inc. v. Lawson Software, Inc., No. 3:09cv620 (E.D. Va) where privilege was waived for log entries that did not contain author and recipient information.

It is important to note that although a privilege log is the common form used to identify privileged documents, it is not required. The Federal Rules of Civil Procedure do not specify the format of a privilege log, nor do they mandate that a document-by-document log must always be prepared. Actually, the Advisory Committee Notes following Rule 26 indicate that a document-by-document privilege log may be inappropriate in some circumstances.  Details concerning time, persons, general subject matter, etc. “may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected.” The party’s may agree to forgo a privilege log or limit the scope of the logs. A party can also request relief through a protective order under 26c if compliance with the requirement for providing this information would be an unreasonable burden. A few alternative options to the traditional privilege log include:

• Categorical      logs (types of document withheld are broadly identified by category and      date range).
• Agree      to not log documents related to litigation or after certain date (establish      a reasonable date range, after which log entries need not be made).
• Meta      data logs (where once documents are reviewed for privilege, only available      metadata is used to populate the log fields).

Privilege Log Workflow and Management:

Depending on the factors such as the number of documents, deadlines, and whether you are using review attorneys there are various suggested options to begin the privilege log process. Generally, I would suggest the following:

1)      Search for potentially privileged documents: The first step is to segregate out potentially privileged documents based on keys terms (such as “attorney-client”) and searches based on matter specific attorneys, paralegals and law firm names. I would suggest segregating those documents out in different review batches so reviewers are cognizant they are more likely to contain privileged information. These documents can also be reviewed by more experienced attorneys. It is also recommended the privilege names and terms are highlighted within a document.

2)      Review for Responsiveness and Privilege: Documents are reviewed for responsiveness, privilege, and any relevant issues. If Technology Assisted Review is used then only responsive potentially privileged documents would be reviewed for privilege.

3)      Privilege Quality Control Review: Depending on counsel preference and document population size, all documents that hit on potentially privilege search term that are determined to be responsive and not  privileged during the review can be slated for a second round  review. Another option is to review a random selection of the abo and the determine rate of accuracy before proceeding with additional review if needed.

4)      Privilege log Review: Privilege Log review of documents determined to be both responsive and privileged. During the privilege log review a more detailed review of documents identified as privileged during the first round review is undertaken and log information created.

Privilege Logging:

Through the use of Relativity a log can be created, viewed, edited, and exported into a spreadsheet for production. As a first step a separate privilege log review channel is created within Relativity for use during the logging process. This channel should include any relevant information identified during the initial review as well as log specific fields. To ensure uniformity and consistency, I suggest that counsel develop pre-drafted, partial descriptions that counsel would tailor to each document. Using these partial descriptions, counsel would complete the description to make the entry specific to the document being withheld or redacted. By standardizing the format and protocols in advance, counsel can produce a log that is uniform and consistent across all entries. Also, by applying the single-value field for document descriptions, reviewers are guided by counsel-approved language, leaving the reviewer to focus on the few words necessary to identify the nature of the document or communication without revealing its content.

Although the contents of a log may vary, as a general overview a privilege log contains the following information for each entry:

a)      Type of document from metadata, email, Word, PowerPoint, etc.  (with additional more specific  choices approved by counsel contained in drop down menu. For example “attorney memorandum,” “draft letter” “agreement”).

b)      E-mail sender or document author (from metadata with text boxes for additions or changes as needed).

c)       Names of the document recipients (including cc and bcc. From metadata with text boxes for additions or changes as needed).

d)      Document date (from metadata and can be added or edited if needed).

e)      E-mail subject or document title or description of the document (from metadata with additional more specific choices approved by counsel contained in drop down menu if preferred to the metadata title/subject. For example “xyz litigation,” “xyz contract formation”).

f)       The privilege claimed, i.e., “attorney work product,” “attorney client communication,” etc.

Putting the above steps together in a log will result in spreadsheet with bibliographic information (sender, recipients, date) combined with entries describing the nature of each document. For example: “Email concerning the xyz litigation” or “draft agreement regarding xyz sales.”

Advanced Logging Ideas/strategy

1. Final Privilege Log Editing: Once the above review is complete the log is exported into a spreadsheet. There are a variety of Excel macros and formulas that can be employed to complete the privilege log.
2. Privilege log Library: For corporations that have different matters involving same custodians over time, use of hash value to identify privileged files from other matters and add to privilege log in new matter. For example, if privilege documents were logged in matter “x” and same custodian collected for matter “y,” use hash value to add privileged documents from matter “x” to matter “y” log without additional review work.
3. Final QC: Use final logged document populations to QC for any missed privilege items in already produced document population or on population slated for production using similar documents feature or key terms.
4.  Email chains. The courts are still wrestling with the issue of whether an e-mail chain is one communication or many separate communications for privilege log purposes. Some courts, although very few of them, have addressed the issue of email strings in privilege logs, so it’s important to look at the current state of the law on that topic.  You may want to indicate in your review process which entries are for emails containing more than one chain.

Conclusion:

By following a cohesive strategy at the outset and utilizing review and drafting tools available within an e-discovery hosting and review platform such as Relativity, the consistency, uniformity, accuracy and defensibility of a privilege log process can be established before the first entry is ever made. Of course, each case will differ depending upon the nature and scope of the underlying data. To ensure accuracy at all steps, you should incorporate thorough, regular quality control of privilege determinations. By using a standardized privilege log protocol counsel should minimize uncertainties and improve the quality and accuracy of each entry

Trying to keep up with my blogging again. I have a lot of respect for those bloggers who also have full-time non-blogging jobs. It is harder than it looks! I really do enjoy blogging and excellent way of keeping up with the industry which is ever changing.

This article written by Legal Management writer Steven Levy titled “what do you when you realize you have made a mistake,” caught my eye last week.

According to Mr. Levy there are three common strategies when as project manager you make a mistake or realize a mistake has been made:

1.Brazen it out. Pretend that it wasn’t a mistake after all; indeed, maybe you believe it wasn’t a mistake and that others claiming you’re wrong doesn’t make it so.

2.Lie about it. Claim that you never said it, or wrote it, or intended it.

3.Apologize and attempt to fix the problem as soon as possible.

Mr. Levy goes on to say Strategy #3 is generally the right choice

“in the long run you’ll take a credibility hit either way, by admitting the mistake or by failing to own up to it. However, the damage to your credibility keeps on growing the longer the mistake hangs out there uncorrected — and in the long run, if it leads to a less successful project outcome, the damage can be significant to you, to your practice, and to the client’s interests. Even if you don’t think it’s your mistake, you can apologize for the fact that something is unclear. Something’s wrong. Let’s not worry about fault, but about fixing it.  The sooner you fix it, the sooner you can stop fretting about it and get on with the real work of making your project successful.”

I whole heartily agree with Mr. Levy that the best course of action is to admit your mistake and move to correct the problem However, the situation where someone else makes a mistake that affects your project is often more difficult to deal with. Personally, I prefer move ahead and fix the problem rather than spend time trying to assign blame.  At times though this course of action has led both my external client and internal supervisor to think I am made the mistake. If it was not your misstate, at some point do you need to explain who and what happened to cause this mistake in the first place?  I believe you have some responsibility to point that out to the client so as not to jeopardize future work as well as your standing within your own organization.

By Steven B. Levy http://lexician.com/lexblog/2012/09/ctrlz-and-the-project-manager/

There have been a lot of changes in my life. I left Denver where I have lived for twenty plus years for a new job in Portland, Oregon.  Moving is definitely stressful especially with a dog and two cats! I am now happily settled and working as a Project Manager for an e-discovery company. The new job is exciting and challenging. There is definitely a lot to learn regarding internal processes and procedures and in-depth use of Relativity and other technology. Excited to face new challenges and enhancing my e-discovery technical and management skills. As a result my blog postings have really suffered. Now that I have settled in I hope to resume posting on a more regular basis. I continue to actively follow the e-discovery field, I just need to find extra time to write about it!