“This Opinion should serve as a wake-up call to the Bar in this District. . . ” When an opinion begins like that, continuing to read it is like watching a horror movie. The payoff is that shiver of relief that comes from knowing that you are only a spectator.

Magistrate Judge Andrew Peck was not happy with anyone in William J. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company.” He was not happy because, according to the opinion, the lawyers representing the parties (and one non-party involved in discovery) failed to cooperate in the creation of key terms to search an email database, leaving him to do their work.

The dispute involved alleged defects in the construction of the Bronx County Hall of Justice. The owner of that project agreed to produce documents from its construction manager (Hill), including project-related emails. As Judge Peck relates it, the project owner proposed several search terms. The other parties requested the use of thousands of additional terms, including: “sidewalk,” “driveway,” “build,” “elevator,” and “electrical.” The project owner noted that would require to the production of Hill’s entire email database since Hill was, after all, a construction manager. Hill’s counsel attempted to play Solomon, allowing that the project owner’s search terms may have been too narrow, but arguing that the other parties’ requests were certainly too broad. It proposed no search terms of its own.

Judge Peck, said the parties “left the Court in an uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill.)” Having found himself in that position his unhappiness was understandable. The judge characterized the case as “just the latest example of lawyers designing keyword searches in the dark, by the seat of their pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.”

Judge Peck discussed similar prior cases and the solutions those courts offered. He ended his discussion with this admonition: “the best solution in the entire area of electronic discovery is cooperation among counsel. This Court strongly endorses The Sedona Conference Cooperation Proclamation.”

That proclamation, issued toward the end of last year, does a masterful job of laying out the case for cooperation and a method for achieving it—and it does so in about three pages. Its conclusion:

It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.

William J. Gross Construction Associates, v. Am. Mfr. Mut. Ins. Co.

Thanks to who intended the Fowler/Systems Design Group/Symantec E-Discovery presentation on March 25. As mentioned, I’ve included links below to some of the documents and federal cases discussed in that presentation. One of the cases alone runs to 100 pages, so this seems a better way to distribute them than paper.

Sedona Principles Second

Qualcomm Sanctions

Lorraine v. Markel (bookmarked)

Lorraine v. Markel Lexis Summary

Hopson v. Mayor of Baltimore

Links to other sources of information:

Electronic Discovery Reference Model (EDRM)

Law.Com’s E-Discovery Road Map (based on the EDRM Model) (Each of the Nodes on the Road Map is clickable, and leads you to articles and other reference material that Law.Com has gathered relevant tot hat node.)

Thanks again to our partners in the presentation, Systems Design Group and Symantec; to Fowler attorneys Ellen Arvin Kennedy, Timothy A. West, and Matthew D. Ellison, who spoke to break-out groups; and to Jane Becker of Alltech’s in-house counsel department, who shared her knowledge on the impact of E-discovery on intellectual property litigation.

Thanks to the Bluegrass Claims Association for inviting me to discuss Electronic Discovery at their March 19 meeting. As mentioned, I’ve included links below to some of the documents and federal cases discussed in that presentation. One of the cases alone runs to 100 pages, so this seems a better way to distribute them than paper.

Update: Tiffany Phillip’s list of internet resources from her August presentation to the Fayettte Women Lawyers group is added to the list below.

Sedona Principles Second

Qualcomm Sanctions

Lorraine v. Markel (bookmarked)

Lorraine v. Markel Lexis Summary

Hopson v. Mayor of Baltimore

internet-resources-for-women-lawyers.doc

Magistrate Judge James B. Todd confronted the issue of whether production of data in native format is required in a February 2, 2009 decision. ClassicStar Mare Lease Litigation. (Master File CA-5:07-cv-353-JMH.

GeoStar Corporation had originally objected to producing electronically stored financial data, but the court ordered it to do so. Complying with that order, GeoStar produced what Magistrate Todd called “an extraordinary amount” of financial data in .tiff format, and in .dii load files permitting the parties to export the data to Summation or Concordance databases. The order compelling production did not specify the format for production.

Some of the plaintiffs then requested that Magistrate Todd order the date produced in native format. He did so, but also directed those plaintiffs to depose a GeoStar representative on the impact that production might have on GeoStar’s ongoing operations. He invited GeoStar to move for a protective order if it found one necessary.

GeoStar did make that motion. The dispute basically came down to the plaintiffs’ contention that, to to search this amount of data efficiently, they needed the metadata embedded in the native format files. They argued that this could save them several hundred hours. As Magistrate Todd viewed this argument, the plaintiffs were not arguing that the original production was not in a reasonably useable state, “only that it could be so much more useable in its native format.” It appeared to him that the plaintiffs had received the production they had asked for in their request.

Nevertheless, Magistrate Todd ordered production in native format. During the parties’ discussions about the issue, GeoStar’s counsel wrote a letter stating that the primary objection to producing the records in native format was that they would be useless without the software needed to read those data. That software was believed to cost more than $15,000. The letter stated that GeoStar would produce the data in native format “if you choose to buy the software.” Based on this letter, Magistrate Todd held that he was only enforcing GeoStar’s agreement to produce native data.

Because GeoStar had already produced the data once, and in a reasonably useable format, Magistrate Todd did order the plaintiffs to bear the cost of this second production. He directed GeoStar to provide the plaintiffs with a good-faith estimate of that cost, and based on that estimate the plaintiffs were to notify GeoStar by February 17 if they still wanted the native data.

Update: Ralph Losey of the e-Discovery Team blog (as well as two ABA books on e-discovery) extensively analyzed this opinion and three others involving native format issues in this post. Hearkening to the native-art motif of his post, he quoted Gauguin to summarize the ruling: “A compromise is the art of dividing a cake in such a way that everyone believes that he has got the biggest piece.” He also noted that the court would not have had to reach such a compromise had the parties addressed these issues early on, and if the requesting plaintiffs had done their homework. As he put it: “Do not wait until after you are slammed with Tiff and load to find religion.”

Sixth Circuit judges gathered en banc earlier this month to consider this question: “Does state law control a federal court’s imposition of sanctions as relief for spoliated evidence.”

Earlier opinions from that circuit had held that state law determined whether spoliation sanctions were available and appropriate. That is no longer the rule: “We now recognize—as does every other federal court of appeals to have addressed the question—that a federal court’s inherent powers include broad discretion to craft proper sanctions for spoliated evidence.”

Writing for the Court, Judge Boyce Martin gave two reasons for this ruling:

First, the authority to impose sanctions arises from a court’s powers to control the judicial process, not from substantive state law.

Second, spoliation rulings are evidentiary, and federal courts generally apply their own evidentiary rules.

The case arose from the complaint of a prisoner (Adkins) against a guard (Wolever). Adkins sought a spoliation instruction, alleging that video and photographic evidence of the assault had been destroyed, against prison policy.

Wolever argued against the spoliation instruction, saying the duty was not his to preserve the evidence. It was the duty of prison management. The three-judge panel who originally heard the case agreed with Wolever, based on law of the circuit at that time. (Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2006.)) That opinion (also written by Judge Martin) urged the full court to hear the case, leading to the adoption of the new rule in the Sixth Circuit.

The en-banc Court did not suggest a sanction in the case before it; it held that consideration of sanctions must be case-by-case as “failures to produce relevant evidence fall ‘along a continuum of fault,’” ranging from innocent to negligent to intentional. It remanded the case to the Western District of Michigan for findings regarding where Wolever’s conduct fell on that continuum of fault.

Adkins v. Wolever, Feb. 4, 2006, Sixth Cir. No. 07-1421.

Last month Judge William Bertelsman granted summary judgment against the Kentucky Speedway in its lawsuit against the National Association of Stock Car Racing, Inc. (NASCAR) (E.D.Ky, CA 05-138). The decision reminds us that the Judge decided an e-discovery issue earlier in the same case.

In December 2006 Judge Bertelsman ruled on a request by the Kentucky Speedway to get metadata for almost all the documents it had already received in discovery. He reviewed a case that has been influential in other matters involving the discovery of metadata, Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D.Kan. 2005). Williams held that metadata should be produced as a matter of course, absent an agreement between the parties to the contrary, or a motion by the producing party for a protective order.

Judge Bertelsman rejected that approach, saying that he had the benefit of the amendments to the federal rules (which took effect in December 2006) and the commentary of scholars following Williams. He adopted the approach suggested by the Sedona Principles for Electronic Document Production: a party should not be required to produce metadata absent an agreement to do so, or a court order.

He found unpersuasive the Speedway’s argument that it needed the metadata to establish who created certain documents, or who was the proper custodian of those documents. Judge Bertelsman noted that in many cases the metadata might not provide that information. He also thought the justification was too general. He ordered the Speedway, to the extent that it sought metadata “where date and authorship information is unknown but relevant,” to identify those documents so the defendants could supply that information.

As Kentucky state courts begin to deal with issues of electronic discovery they will look to the experience of federal courts. The co-author of a series of books on the Kentucky Rules of Civil Procedure, Judge Bertelsman has had great influence on the development of procedural law in Kentucky state courts. When similar issues arise in Kentucky courts we can expect his decisions to carry some weight.

Kentucky Speedway (2006 U.S.Dist. Lexis 92028)

It should be old news by now that a party cannot resist producing documents by the mere assertion that production is burdensome. The resisting party must prove that burden, usually through an affidavit or testimony from its client.Apparently the lesson needs to be learned again in the electronic context. In a lawsuit between the City of Seattle and the Seattle Supersonics basketball team, the city sought production of emails from six of the eight members of the LLC that owns the team. The club produced 150,000 emails from two of the members, but argued that producing them from the other four members would “increase the universe exponentially,” and generate too many irrelevant documents. The city and the club had agreed on the use of certain search terms, but the club used those terms to search only the two members’ email files. Its argument was that the number of potentially relevant documents would be too large if it searched the other four members’ email files.

After resolving issues of whether the emails were in the custody of the responding party, and whether they were relevant (both questions answered “yes”), the Court turned to the nature of the club’s objection. It reminded counsel that party resisting production has the burden “to provide sufficient details in terms of time, money and procedure required to produce the requested documents.” An objection that only states that the request is burdensome fails to meet this test.

Attorneys and clients both have a tendency to treat electronic discovery as if it were a completely new creature, not subject to well-settled principles applicable to all discovery cases. But electronic discovery is still discovery, and the old rules still apply, as this case reminds us.

The case can be viewed or downloaded here. Thanks to the Justia site for providing the link to this and other court documents.

C-Net reminds us that electronic evidence can be critical even in mundane traffic cases. The article “Is Your Car Spying on You?” discusses “black boxes” installed in most Ford and GM cars since the year 2000, devices that record speed, whether ABS braking systems activate, and whether airbags deploy, among other data. According the C-Net the black box in New Jersey Governor John Corzine’s SUV showed that car was traveling 91 mph at the time of his accident (not 70 as witnesses testified), and that the governor was not wearing his seatbelt.

Does that mean the speed witnesses were inaccurate or lied? Not necessarily. Engineer Perry Zucker points out that black boxes were designed to retrieve diagnostic data for mechanics to fix cars; not to provide legal evidence. For various reasons, trying to use those data to determine liability may not always work.

Update: Thomas Kowalick, President of Click, Inc., author of a number of books on the use of vehicle black boxes, spoke to members of Kentucky General Assembly on current issues with black boxes. (Thanks to the Kentucky Law Blog for reporting this.)

Speaking to the Interim Joint Committee on Transportation, Kowalick noted that federal law mandates uniformity for Electronic Data Recorders (EDRs) by 2011, but the federal government has left it to states to decide how the data collected by EDRs may be used. “The challenge is to strike a balance between privacy concerns and the quest for the freedom to travel safely,” he told the committee.

It does not appear that any particular bills regarding EDRs are currently before the committee.

C-Net reminds us that electronic evidence can be critical even in mundane traffic cases. The article “Is Your Car Spying on You?” discusses “black boxes” installed in most Ford and GM cars since the year 2000, devices that record speed, whether ABS braking systems activate, and whether airbags deploy, among other data. According the C-Net the black box in New Jersey Governor John Corzine’s SUV showed that car was traveling 91 mph at the time of his accident (not 70 as witnesses testified), and that the governor was not wearing his seatbelt.

Does that mean the speed witnesses were inaccurate or lied? Not necessarily. Engineer Perry Zucker points out that black boxes were designed to retrieve diagnostic data for mechanics to fix cars; not to provide legal evidence. For various reasons, trying to use those data to determine liability may not always work.