proportionality in e-discovery: evolving...
TRANSCRIPT
Proportionality in E-Discovery:
Evolving Strategies Reducing E-Discovery Abuses and Expenses by Using Proportionality Tools
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WEDNEDAY, MARCH 27, 2013
Presenting a live 90-minute webinar with interactive Q&A
Conor R. Crowley, Principal, Crowley Law Office, McLean, Va.
Christopher Q. King, Partner, SNR Denton, Chicago
Gina M. Trimarco, DLA Piper, Florham Park, N.J.
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Overview of Recent
Developments in Proportionality
Conor R. Crowley, Esq., CIPP/US/E
703-659-5030
With decades of practical experience in litigation and corporate best practices, we are uniquely equipped to provide solutions to the challenges posed by complex litigation and information governance. We listen carefully to our clients’ concerns, issues and needs before crafting cost-effective, strategic solutions to e-discovery and information governance challenges in addition to a full range of best-practices compliant legal processes in all areas of law. We also provide expert witness and special master services. Our clients include Fortune 100 corporations, AmLaw 20 law firms and government agencies.
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Mr. Crowley is the Chair of The Sedona Conference Working Group on Best Practices for Electronic Document Retention and Production (WG1), and a member of the International Association of Privacy Professionals, the Advisory Board for Georgetown University Law Center’s Advanced E-Discovery Institute and the Board of Advisors for BNA’s Digital Discovery & e-Evidence.
He is the Editor-in-Chief of The Sedona Conference Commentary on Proportionality in Electronic Discovery, and a Senior Editor of a number of The Sedona Conference’s publications including The Sedona Conference Commentary on Legal Holds and The Sedona Principles (Second Edition): Best Practices Recommendations & Principles for Addressing Electronic Document Production.
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Conor R. Crowley, Esq., CIPP/US/E
• Federal Rules of Civil Procedure
• Case law addressing proportionality
• The Sedona Conference Commentary on Proportionality in Electronic Discovery
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Topics
• Rule 26(b)(2)(C)(i) allows courts to impose limitations where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.”
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FRCP Rule 26(b)(2)(C)(i)
• Rule 26(b)(2)(B) provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
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FRCP Rule 26(b)(2)(C)(i)
• Rule 26(b)(2)(C)(ii) provides that courts may limit discovery where “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”
• Akin to applying the concepts of waiver and laches
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FRCP Rule 26(b)(2)(C)(ii)
• Rule 26(b)(2)(C)(iii) provides that, in assessing whether to limit discovery, courts may consider whether “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”
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FRCP Rule 26(b)(2)(C)(iii)
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Case Law
• Plaintiffs were physically challenged citizens suing for access to public transportation
• The court denied the defendant’s request to limit discovery of back-up tapes, given “the importance of the issue at stake and the parties’ resources.”
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Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority,
242 F.R.D. 139, 148 (D.D.C. 2007)
• “Defendant] has no obligation to turn over to an opposing party in a lawsuit non-discoverable and privileged information. . . . The mere possibility of locating some needle in the haystack of ESI . . . does not warrant the expense [defendant] would incur in reviewing it.”
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Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. 2009)
• In sexual harassment action, court rejected defendant’s preservation and discovery burden and cost argument, stating that claimed expenses were “self-inflicted” by defendant’s own actions
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Escamilla v. SMS Holdings Corp., No. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21,
2011)
• FLSA suit where discovery was stayed pending conditional class certification of opt-in class
• KPMG sought protective order limiting preservation obligation to random sample of 100 hard drives
• Court denied motion for protective order and required KPMG to preserve the contents of former and departing potential class members at a cost of approximately $1.5 million
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Pippins, et al. v. KPMG LLP, 2011 U.S. Dist. LEXIS 116427 (SDNY 2011) (“Pippins I”)
• Court upheld denial of motion:
– KPMG unreasonably refused to cooperate by not acceding to plaintiffs’ request to produce a sample of hard drives to determine relevance, citing discovery stay
– KPMG could not rely on proportionality argument given that the failure to produce a sample of hard drive’s withheld information that was essential to demonstrate the benefit of preservation
– KPMG should “’reasonably anticipate’ that every Audit Associate who will be receiving an opt-in notice is a potential plaintiff”
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Pippins, et al. v. KPMG LLP, 279 F.R.D. 245 (SDNY 2012) (“Pippins II”)
• In large-scale construction liability action, court approves use of technology-assisted review for discovery
• Successful briefing focused on proportionality, specifically the costs and burdens of TAR versus traditional, manual review
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Global Aerospace Inc., et al. v. Landow, No. CL 61040, 2012 WL 1431215 (Va. Cir. Apr. 23, 2012)
• In putative employment class action, court invokes proportionality analysis to order production of personnel data from employer’s databases
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Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (LBS) (JCF), 285 F.R.D. 294 (S.D.N.Y. 2012)
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The Sedona Conference® www.thesedonaconference.org
The Sedona Conference® is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Through a combination of Conferences, Working Groups, and the "magic" of dialogue, The Sedona Conference® seeks to move the law forward in a reasoned and just way.
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The Sedona Conference Commentary on Proportionality in Electronic
Discovery
The burdens and costs of preserving potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
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Principle 1
Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources.
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Principle 2
• Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
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Principle 3
Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production.
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Principle 4
Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery.
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Principle 5
Technologies to reduce cost and burden should be considered in the proportionality analysis.
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Principle 6
Thank You
Conor R. Crowley, Esq., CIPP/US/E
Crowley Law Office 6526 El Nido Drive McLean, VA 22101 Ph: 703.659.5030 Fax: 703.563.6090
[email protected] www.crowleylawoffice.com
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Overview I. Context and Challenges
Burden or Benefit
Preservation or Production
Controlling Quality and Potential Disputes
II. Developing Extrinsic Information Sampling and Technology
III. Sampling and Proportionality in Action Quantifying Benefit or Burden
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Context and Challenges What is the problem?
Volume (expense)
Format
Lack of Information
Lack of Resources
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What is the goal? Reduce Volume
Find Information
Contest Claims of Burden (accuracy of cost assessment)
Timing and Other Factors Pre-litigation Preservation
Collection
Production
Disputes
Non-parties
Non-monetary Factors
Context - Proportionality Arguments
For the requesting party
Reasonableness
Establish existence of relevant discovery
Sample difficult sources
Compromise to develop information
Argue that the discovery is worth it in context
Propose solutions to reduce costs, including technology or staffing
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Context - Proportionality Arguments
For the Producing Party
“Not” arguments
Demonstrate that the burdensome data source is not worth it
Defend preservation, privilege and production issues
Quantify and demonstrate the burden
Offer reasonable alternatives
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Developing Extrinsic Information
Importance of the Discovery
How to Value the Unknown
Fact-specific
Five Ws - Who, What, Where ,When, Why?
Interviews or depositions?
Can an inference be drawn from discovery already produced?
How does the data relate to the key issues or custodians?
Bad faith or evasive behavior?
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Extrinsic Information – Sampling Purpose of Sampling
Relevance and materiality of information stored on burdensome
data sources
Volume of relevant information stored on burdensome data sources
Identify information from sources that are “not reasonably accessible”
Tool for discovery negotiation – meet and confer example
Agree to $5,000 of data processing to sample the data at issue Reduce volume with de-duplication Apply search terms / predictive coding or other technology Agree on review procedure Compare benefit to burden Sampling for quality control
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Extrinsic Information - Sampling
General Tips for All Sampling
Judgmental Sample
Not random
Can be appropriate to choose population
Target area of dispute, key custodians or sources, cost issues
Statistical Sample – Subset of Data at Issue
Random – Simple, Systematic, Stratified or Clustered
Accuracy (Confidence Level)
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Extrinsic Information – Sampling and Technology
Filters – Search Terms (sampling to test results) Process and de-duplicate a statistical or judgmental sample of data from the
problem source Apply subject-matter search terms (meet and confer) Choose a statistical sample from search results, is volume still a problem? Determine degree of importance (relevance and uniqueness)
Concepts, Clustering and Predictive Coding Similar - except instead of search terms… Software will group documents according to concept Can be search driven Parties could agree on sampling of concept results to review Use to reduce data – exclude groups of non-relevant documents Alternatively – use to include Use concept tools to reduce data before searching
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Extrinsic Information - Burden How to Determine Expense
Approximately 50 documents per-hour average review speed
100,000 documents (any page count)
2,000 hours
$50 per-hour = $100,000
$200 per-hour = $400,000
Is it reasonable to base expense on review of every document – at what volume is it no longer reasonable?
Processing – wide range $0 in-house systems, $350 - $550GB
100,000 documents could be 30GB ($10,500 - $16,500)
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Proportionality Tools in Action
Hypothetical Plaintiff and defendant have terabytes of potentially
relevant data Format varies - easily accessible to nearly impossible Neither company has access to in-house processing The litigation is worth at least $300,000,000
Containing costs Staging Technology and sampling can help Discovery pre-nup?
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Resources and Cases
Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, (S.D.N.Y. Feb 24, 2012) (NO. 11 CIV. 1279 ALC AJP)
Use of statistics for multiple purposes
Advocate use of predictive coding
Proportionality requires consideration of results as well as costs
Line will be drawn [as to review and production] depending on what the statistics show for the results, (rejecting proposal to only review and produce the top 40,000 documents)
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Resources and Cases In Re: Actos (Pioglitazone Prod. Liability Lit.), 2012 WL
3899669 (W.D.La. Jul 30, 2012) (NO. 6-11-MD-2299)
Case management order
Cooperation with statistics
Parties will meet and confer regarding which relevance score will provide a proportionate result
DCG Sys., Inc. v. Checkpoint Techs, LLC, 2012 WL 4937969, N.D.Cal., October 17, 2012 (NO. 11-CV-03792-PSG) Production was not overly costly when compared to amount in
controversy
No support for bald assertion that the documents are largely irrelevant
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Resources and Cases
I-Med Pharma Inc. v. Biomatrix, 2011 WL 6140658 (D.N.J. Dec. 9, 2011) (NO. CIV. 03-3677 DRD) Refused to order production of documents from unallocated
space on systems
Search results and volume of documents
Gabriel Technologies Corp. v. Qualcomm, 2013 WL 410103(S.D. Cal. Feb. 1, 2003) (NO. 08CV1992 AJB MDD) Award of more than $11 million in defense fees and costs
$2.9 million for eDiscovery vendor (technology)
$390,000 for review of documents
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Resources and Cases
Esai v. Sanofi-Aventis, 2012 WL 1299379 (D.N.J April 16, 2012) (NO. CIV.A. 08-4168 MLC) Additional discovery found unlikely to yield relevant
information
Plaintiffs examples were not compelling
Cost of discovery greater than potential recovery
Websites available for statistics
www.thesedonaconference.com
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Proportionality: Best Practices for
Presentations to the Court
March 27, 2013
Christopher Q. King
Partner
T +1 312 876 8224
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About SNR Denton
SNR Denton is a client-focused international legal practice delivering quality and
value.
We serve clients in key business and financial centers from more than 60 locations
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Our Locations
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Christopher Q. King
Partner Chicago D +1 312 876 8224 [email protected]
Christopher King is a general litigator who regularly advises clients regarding electronic discovery and information governance. He concentrates in the areas of securities litigation and arbitration, consumer fraud, ERISA, antitrust and other class actions, and director and officer fiduciary and shareholder litigation.
Christopher was listed in the 2012 Chambers USA: America’s Leading Lawyers for Business, Litigation: E-Discovery, National.
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Start Before You are Due In Court
Winning proportionality is not about terabytes and custodian counts but about the
law and the facts
Understand legal issues
– What are the prima facie elements and the defenses?
– What kinds of evidence will address the elements and defenses?
– Will data be needed to make or disprove the case?
Early Case Assessment
– Who needs to tell my part of the story?
– What types of documents do I need to prove my case?
– Will data be involved and if so what kinds of data?
ECA should include: what is a reasonable set of custodians and data to produce?
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Know Your Audience
Your Judge’s Standing Orders
Has the Judge adopted Sedona Cooperation Proclamation?
Your Judge’s prior rulings on electronic discovery
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The Cosmic Beauty of Staged Discovery
Think Proactively about phased discovery
– Limiting the risk to the reasonable requesting party
Judicial endorsement of phased discovery
Tamburo v. Dworkin, 2010 U.S. Dist. LEXIS 121510 (N.D. Ill. Nov. 17, 2010)
Rocket Dockets: challenges to getting phased discovery
– Judge Peck as your ally
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Strategic Positioning for Court
Talking is Better than Fighting (at least to start)
Take Rule 26 Meet and Confers Seriously
– Many Judges expect it
– Some think the rules require it
– You cannot look bad doing it
Be well prepared
Bring technical assistance if necessary
Expect multiple sessions
Summarize in Writing
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Open the Kimono
Ask for a narrowing of document requests.
ADT Security Serv. v. Pinnacle Security LLC, 2012 U.S. Dist. LEXIS 98948 (N.D.
Ill. July 12, 2012) – request for second search denied because vagueness of
document request made second search disproportionate
Consider identifying your data stores
Consider identifying your custodians to the other side.
– Give them titles, locations and roles
– Give time periods when custodians were involved
Consider proposing search terms to the other side
– Test your search terms ahead of time
Consider identifying specific report types in lieu of data?
If data, consider proposing a plan
Build the case for: This is enough and we shouldn’t have to do any more.
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At Court: Show me the [Numbers]
Put the argument in context of legal issues in case
– Chen – Oster v. Goldman Sachs, 285 F.R.D. 294 (S.D.N.Y. 2012) (J. Francis)
Present evidence
– Refute irrelevant custodians proposed by requesting party
– Give per custodian GB totals
– Departmental head counts
– GB sizes for large data stores
– Affidavits/declarations for large data sort projects
Give hit counts for search terms and show alternative
Conduct sampling (Lesson learned from Pippins)
Bring your Geek to Court even if they sit in the corner
Use demonstratives or give the Judge a handout
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