Thousands of computer hard drives and their fate have been at the heart of an ongoing dispute in Pippins v. KPMG. For months, the two sides have argued about the preservation responsibility surrounding a large number of computer hard drives during an EDiscovery process. The Pippins court just overruled KPMG’s objections to the preservation order that had been issued by the magistrate who was overseeing the case and additionally, denied its motion for a protective order. Judge Colleen McMahon wrote:
“I deny KPMG’s motion for a protective order. KPMG must preserve the hard drives – all of them, without exception, for all departed Audit Associates nationwide (since I certified a nationwide FLSA class) – until it either: (1) comes to some agreement with Plaintiff’s over a sampling methodology, which both sides agree is the appropriate thing to do; or (2) formally abandons its litigation position that, even if Audit Associates generally are found to be no-exempt employees (an issue yet to be resolved), individual Audit Associates perform work that renders them exempt from the FLSA”
KPMG is now required to preserve the hard drives of identified former and departing employees unless it can reach an agreement with the plaintiffs developing a methodology to sample data from a subset of the hard drives.
Why is this Important?
This ruling reconfirms the importance of both cooperation and proportionality in EDiscovery. Cooperation is now a required and expected element in litigation. I believe this case should finally put to rest the old school litigation technique of delay, deny and avoid, that was prevalent for so many years The Court emphasized that parties should take reasonable positions during the discovery process that will result in a mutually agreeable result. The Court expects the parties to develop a mutually agreeable plan during the discovery process that will then allow a case to be decided on the facts.
Additionally, the order stressed the importance of communicating with the court to clarify discovery obligations and expectations of orders that have already been issued by the court in order to avoid wasting time and resources. In this case, the court faulted both the parties and the magistrate for not requesting the court’s clarification with respect to its prior order staying discovery. The court explained that the discovery stay (which KPMG had believed prevented any sampling methodology be applied to the hard drives) could have been partially lifted to allow for sampling. Had the parties requested this type of clarification, the costs and delays associated with the lengthy motion practice would have been negated.
The Court also confirmed the doctrine of proportionality as it applies to preservation and why it must be a factor in considering action in EDiscovery. The court stated that proportionality is “typically determinative” when examining a motion for a protective order. However, in this case, the court did not reach a rationality consideration because the defendant had not yet produced a single piece of evidence from the hard drives in questions which would allow an evaluation of the evidence. Only after a sampling production could a determination be made about the proportionality issue which would weigh the benefits of preserving the drives vs the burden to do so.
The Takeaway
This case reaffirms that courts have raised their expectations for how parties should engage during the EDiscovery process. There is a clear trend that discovery should take place which comply with the cost cutting mandates of the Federal Rules of Civil Procedure. Promoting unreasonable positions while hiding behind the construct of zealous advocacy will not longer be viewed by the court as proper advocacy.
In addition, by addressing the issue of using sampling to help make a determination on what and how to preserve, the court is showing a willingness to employ technology in its pursuit of efficiency. The use of statistics, sampling and advanced algorithmic analysis should be used by all litigants involved in EDiscovery. For those unfamiliar with these tools, the best decision that can be make is to hire a company to become your partner in the EDiscovery process. It may be the best decision you make on behalf of your client. Studeo Legal is available to help guide you through this process.
There is no defense for sticking your head in the sand, hoping that because you are a small business, that complex rules of litigation will not be applied to your organization. Whether you consider it to be fair or not, the same complex rules that surround electronically stored information (ESI) for large companies with thousands of employees involved in complex litigation involving hundreds of millions in damages also apply to small companies. It is up to counsel to inform clients of the responsibility to preserve ESI before the need arises.
Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. Cal. 2011) was at its core, a relatively straight forward truck accident liability case. However, pointing to productions made by third parties, the plaintiffs sought a default judgment against the defendants for failure to preserve electronically stored information. In depositions, one key employee admitted that he no longer had relevant electronic data due to computer crashes, upgrades, or handover of computers to employees who subsequently left the company. A second employee acknowledged that he had never searched for electronic data before leaving the company and failed to back up his electronic data. This fact was particularly damaging, as the employee left seven months after the company was served with the Complaint. The defendant’s position was that the company was small and most of the communication about the key events occurred by telephone.
The court found that the defendant had breached EDiscovery obligations. The court addressed several issues which define conditions that clearly could be applied to more than the defendant in this litigation.
1. Two defendant executives, including the owner, admitted that they had made no effort to retrieve potentially relevant ESI from company computers. (They did not even attempt to “self–collect” data, which is also fraught with problems).
2. The defendant argued the following conditions regarding their company:
• that it was a “small company”
• that the case was not document intensive
• and that the most relevant communications took place by phone or in person, and not with generally accepted forms of ESI.
The court rejected each of this arguments and further said that these facts were not valid explanations for the “minimal to no effort” made by the company or its representatives to preserve relevant ESI, including documents sent, received, or created by key players.
3. The court further stated that the fact that one of the key players’ computer crashed was “no excuse” given that the witness admitted he did not backup any of his ESI. The court then reiterated the following warning to all practicing attorneys: “Defense counsel's apparent failure, in this electronic age, to verify with appropriate representatives of their client whether there was an e-mail backup system, cannot be countenanced.”
4. The court determined that the company had “proceeded with business as usual, without making any special effort to retain ESI relevant to this litigation.”
The Takeaway
In this case, the court did conclude that the death penalty (a default judgment) was inappropriate in this case. However the court did award monetary sanctions based on the behavior of the defendants. The court’s ruling regarding ESI is a warning shot to all practicing attorneys on behalf of their clients, regardless of their size. Even small companies are required to pay attention to their ESI preservation obligations once they are triggered, or pay the penalty. If this type of expertise is not part of your legal background, you should contact a consultant to help you put together an education program that can be distributed to all your clients. They will thank you in the long run for your forsight. Studeo Legal can assist in this endeavor.
There have been many excellent articles written about what was presented at this year’s Legal Tech: what was hot, what was new and what was “cool”. I am not going to try to add my two cents to this already well documented discussion. Rather, I want to focus on the overall marketing message that I was receiving as I walked around the show, speaking with vendors and reading the marketing headlines displayed in many booths while trying to absorb the trends and tidbits that would help me better serve my clients over the next year.
The consensus before the show began was that predictive coding (Technology Assisted Review) and Information Governance would be the hot topics that everyone would be talking about. In fact, the show fulfilled that prediction, in spades! These two topics are proving to be the major buzzwords for 2012. They are complex and intimidating, yet they offer the most likely solution to the ever increasing volume of EDiscovery that is encountered in almost every litigation matter. New software algorithms are being deployed at an ever increasing pace in an attempt to cull through large document populations and shine the light on the most relevant documents that need to be reviewed by attorneys before production or in preparation for trial. So what is the problem?
As I wrote in last week’s blog:
We are all looking for the magic technology button (EASY) that will solve the problems we encounter on a daily basis with the ever expanding volume of EDiscovery data. What we have to remember is: 1) technology is just another tool to help attorneys do their job and 2) that we have to be able to describe what the technology is and how it operates in order to defend our decisions regarding document productions and 3) there is no EASY button (more on that in my next blog). We need to understand and document what goes on behind the scene when the technology performs its “magic”.
The first impression that is put forth by a company is often the one that is marked permanently in ones conscious. It certainly begins to get embedded in your mind as the message is repeated. I was bombarded with the graphic messages that each company had “the solution” to the EDiscovery problem. Most often it was a new software solution that would eliminate the EDiscovery problem merely by installing it, “pointing” it towards the unknown document population and pressing a button. EDiscovery made EASY. But is the right message to be creating? There was only limited messaging on the need for strong consultative services to deploy and implement these new technology tools properly and to develop and refine search methodology.
I believe that marketing EDiscovery services, no matter how technologically enhanced, as EASY does a disservice on several levels. It is a disservice to clients who begin to think that it is not as complicated as vendors have been describing, and it should be faster and require very little interaction between the attorney and technologist to deploy effectively. It is a disservice to vendors in the long run because if it is so EASY to implement and get good results, clients want to know why it costs so much.
While this type of marketing message might be effective in garnering some quick attention and drawing somebody in for a discussion, it creates a virtually insurmountable problem as we then attempt to explain that we didn’t really mean that it would be that EASY and that it requires a collaboration between several different legal related disciplines to make it work. And while the overall costs of EDiscovery can be reduced by including technology as part of the solution, the technology does not eliminate the need for humans.
Takeway
First impressions matter: we are often misleading our clients and then setting their expectation level to high with some of our marketing promises. There is no EASYbutton in EDiscovery. It is a complex mix of technology and legal analysis which must be employed be experts in the fields of law, statistics, linguistics and database management. It is not a matter of "man vs. machine" The argument in reality should involve machines providing human decision-makers with accurate, responsive information, rather than replacing those humans altogether. Defensibility is a methodology that must be understood and described by an attorney in the courtroom, not a machine in the backroom.
The law (and more specifically the courts) are not satisfied with a black box solution; they have to understand how searches work and why certain results are produced. Lawyers must be part of the team that implements technology, but it needs to include technologist, linguists etc to perform the work in a defensible manner and on a proportional scale. The process and methodology needs to be easier to understand and explain. In the legal context, lawyers need to know how a search works. They need to show all the things that were done that make the search results reasonable. Sounds Easy doesn’t it?
As 2011 wrapped up, and 2012 begins, there appears to be a heavy focus on a technology application often called “predictive coding” or “technology-assisted review”. We are all looking for the magic technology button (EASY) that will solve the problems we encounter on a daily basis with the ever expanding volume of EDiscovery data. What we have to remember is: 1) technology is just another tool to help attorneys do their job and 2) that we have to be able to describe what the technology is and how it operates in order to defend our decisions regarding document productions and 3) there is no EASY button (more on that in my next blog). We need to understand and document what goes on behind the scene when the technology performs its “magic”
On some level, lawyers have not yet embraced the technology advances because the courts have not yet given their ultimate stamp of approval on the technology approach. However, courts are beginning to show signs that technology is an important part of the answer and should be integrated into the litigation process. The ultimate question is what will this “new” multi-layered approach look like in the final analysis?
U.S. Magistrate Judge Andrew Peck of the Southern District of New York wrote an article in October, Search, Forward, in Legal Technology News. He acknowledged that the nature of more advanced technology assisted review presents a new paradigm for the courts. He wrote,
Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” determination of cases in our e-discovery world.
While this article immediately caused a great volume of commentary and analysis on the merits of technology-assisted review and put forth the arguments that it was in fact the “magic bullet”, there is much more to Judge Peck’s article upon a closer reading. In his article, he revisited some of the seminal cases in this area of the law written by Judge Grimm and Judge Facciola in which there was discussion about the limits of keyword searches and then described how these issues were analogous to predictive coding solutions.
He pointed lawyers to the Sedona Principles as a basis for developing a methodology that can be defended by the parties. His two major points are that 1) the practice of EDiscovery should be focused on methodology, versus technology and 2) that legal arguments need to be grounded in the reasonableness of technology-assisted review. One of the fundamental features when defining “reasonable” behavior in litigation is the ability of counsel to provide detailed information about how and why certain steps were taken during the document production process. Explaining a methodology and providing detailed back up documentation is important when convincing a judge that you have done the best possible job to comply with the FRCP.
It is very likely that for the next several years, predictive coding/technology-assisted review will increase its role in EDiscovery until the next new technology (artificial intelligence?) come along to replace it. It is clear that technology is here to stay and that we all benefit from its integration into the document review process. Traditional review approaches are no longer defensible. As a tool, technology can help us achieve the goal of taming the increasing volume of EDiscovery. But in the end, it is only a tool.
Technology is only a tool
Tools need to be deployed properly, described completely and integrated into an overall litigation strategy. Technology can not do this, only humans can. Lawyers and technologists need to apply their legal insights and understanding to implement the technology. Solving complex problems and providing a methodology that is accurate and defensible remain under the control of humans.
Therefore, the methodology employed by a legal team is what will provide the judiciary with the context for the decisions that are made during the document review and will ultimate Lely determine whether you have taken reasonable, defensible steps. You will have to not only be able to describe what the technology does and how it works, but be able to provide the judges with the experts used to execute the technology. This will include lawyers, linguists, statisticians and technologists who will be required to demonstrate that the proper balance between technology and methodology.
Statisticians and Linguists – Why are they Important?
Let’s face it. Most lawyers became lawyers because math was not their strong suit. Legal training focuses words: making judgments and interpreting language, formulating defensible arguments and clearly articulating that argument. In fact, only attorneys can make the subjective determinations needed throughout the litigation, particularly when determining proportionality and reasonableness in EDiscovery. Lawyers are, and will continue to remain at the center of the legal process based on legal and subject matter knowledge. Lawyers should focus on case strategy and allow the substantive experts provide the expertise necessary to obtain results and document their methodology. As the field of EDiscovery becomes more complex and specialized, legal teams need to integrate the services of other experts to achieve their goals.
Predictive coding and technology-assisted review are based on statistical algorithms and linguistic word patterns, which are clearly specialty fields unto themselves. Only linguists and statisticians who devise the software used in advanced can properly understand how best to integrate what they have created with the specific circumstances of your litigation. It is imperative that the legal staff work with these experts to obtain the best results when using this sophisticated technology. They should become part of the litigation team to insure that the results obtained are correct and defensible. Their role is to develop protocols for the review, make sure that the correct searches are employed to find the documents, study the results of the searches and fine tune the search strategy, and make sure that the results represent a statistical sampling of the documents that can be defended in the courts. This methodology is ultimately what is used to show that the steps you have taken are reasonable under the law and given the circumstances of your litigation.
What is the Takeaway?
Technology is here to stay. Lawyers need it to perform their jobs effectively and represent their clients in a world of ever increasing complexity. But technology is only a tool, and it is not the magic button that some hope it to be. Successful litigation in 2012 requires that an integrated team of experts, including software experts, statisticians and linguists who can deploy the latest technology in the most effective manner. While lawyers can and should continue to design the litigation strategy; the use of experts will improve the search techniques and ultimately result in cost savings as the volume of documents that needs to have eyes placed on them is reduced. Technology is a tool, but it must be deployed intelligently by humans to produce any tangible results. The mythology employed by these teams of experts is ultimately what the courts can understand and will rely on.
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Last week, Forbes published an article by Karl Schieneman entitled Legal Hydra? Top Ten Tips to Become More Proficient with Machine-Assisted Review. As he points out in the first paragraph of the article,
“The fact is, when it comes to electronic discovery, lawyers take a disproportionate role in the battle to solve what is largely a technological problem, i.e, how to find information that is relevant to a case from the huge vats of Electronically Stored Information (“ESI”) that are collected and preserved in many cases or government investigations.”
It is an excellent article that highlights one of the major rifts in today’s legal discovery between attorneys and technologists. As a technologist (self-declared), I do have a somewhat biased opinion on this issue, but I try and look at this issue as objectively as I can. It is clear to me that while the two fields are integrally related, that each requires some particular expertise that is not necessarily possessed by a single individual. Even thought I have been involved in the legal industry for 30 years, I would never go to trial without an attorney. So why do so many lawyers attempt to handle EDiscovery on their own?
It is accepted practice in the legal profession that you consult with a doctor in a medical malpractice case, a software engineer in a software case and an accountant when the case involves financial malfeasance. So why is there such resistance to “partnering” with electronic discovery experts during the phase of the case that involves this ever present discipline? By attempting to handle this technology in house, lawyers can negatively impact the case, unless they happen to possess this ancillary legal expertise. While clearly, there are many lawyers that have acquired the knowledge needed to handle some basic EDiscovery on their own; the newest technologies in the field, including machine-assisted review, predictive coding or concept clustering requires some very special knowledge.
Lawyers and legal technologist often speak the same language, but they are often speaking different dialects which can make it difficult to communicate effectively. As a result, technologists can be rejected by a legal team for two primary reasons: 1) technology is viewed to be too expensive and should be avoided whenever possible; 2) technologists don’t explain clearly how machine-assisted review and other technology solutions can end up saving money in the long run. Remember that it was not so long ago that lawyers insisted on physically looking at every document in a population, before the implementation of keyword searches helped lawyers parse out the more useful information for individual review. New technologies need to be explained, tested and perhaps most importantly, explained and accepted by the courts.
It is time for the basic conversation between the two parties take place, with each party parking their egos at the door and truly listening to what is being said. Machine-assisted review is likely to be a game changer in EDiscovery. It is still very new to the marketplace and vendors need to spend a lot of time explaining why the legal profession should pay attention to it. Lawyers will need to become comfortable with conducting EDiscovery under this new paradigm, and the change won’t come easily. But I firmly believe that this technology will help control the volume of information which has to be reviewed during EDiscovery.
In order for that to happen, lawyers need to view technologists as partners in litigation, not as an uninterested outside vendor. Making vendors an integral part of the team will result in someone vested in both reducing costs and making sure that technology is employed effectively on behalf of their clients. There is a major difference between legal expertise and technological expertise. Look for vendors who understand both the technology and have experience in the legal marketplace and you will have found an effective partner for your litigation. Then go review some documents, a vastly reduced number of documents.
I have written in the past about the importance of Search in today’s litigation (“Are Search Technologists a Foregone Conclusion” and “The Role of Search in E-Discovery-Guidelines that Lawyers Need to Consider”. There continues to be a growing body of case law regarding search technology and search terms that makes it imperative for attorneys to be aware of the implications of a poorly executed document strategy.
Lawyers need to become better versed in search term construction and the need to include expertise in linguistics, statistics and computer science in creating effective and defensible search terms. Courts are beginning to question the validity of key word searches that have been presented to define case strategy and have further questions the ability of lawyers to craft searches without the assistance of technology experts.
In fact, I strongly believe that the “practice” of search as part of electronic discovery has evolved into the “art” of search and is rapidly evolving into the “science” of search. A recent case, Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012), the parties disagreed over the development and use of keyword searches to provide correct results from the data. The defense argued that the search terms required a precise match between the limited set of search terms and the ESI, while the plaintiffs argued that the preset set of narrowly defined search terms would artificially limit the volume of discoverable information and therefore not be responsive.
The Court took the time to base their analysis on one of the seminal cases in this area of law, Victor Stanley, as well as information from the Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods. From Victor Stanley, the court focused on the language that search terms are “appropriate and helpful” for performing electronic discovery searches but that they also have “well-known limitations and risks”. From the Sedona Commentary, the court quoted some limitations and risks exist because “keyword searches identify all documents containing a specified term, regardless of context”. The Court concluded that limited, precise search term searching alone could simultaneously be both over and under inclusive results based on retrieving irrelevant information and missing relevant documents due to simple misspellings.
Specific Issues Addressed by the Court
1. Fear of producing privileged information
The Court rejected the defendant’s objection regarding the production of privileged information using the proposed search terms. The Court pointed to the extensive case precedent that existed which allows a producing party to create a privilege log to exclude documents that would otherwise fit the search term results. If responsive information is also privileged, a privilege log must be created and provided to exclude documents from production.
2. Search Terms would include ‘only irrelevant information’
Defendant’s argued that the search terms selected would include ‘only irrelevant information’. The Court found the argument meritless and without any foundation in fact since there was no support provided for what the Court determined was a conclusion with no supporting 3evidence.
3. Limited response of search terms
The Court determined that the Defendants’ proposed search terms would be “problematic and inappropriate” since it would likely limit the responsive ESI to exact search term matches, including “phrasing, capitalization, or both.” The result of using such a set of search terms would be an incomplete production because discoverable material would be rejected for reasons such as capitalization or unexpected phrasing of the search terms in the discovery material.
The Take Way
What is the importance of this ruling for the legal community? I believe it further underscores the need to recognize the growing importance of the “science” of in today’s litigation. .Before an objection is raised about the creation of search methodology; there must be a true legal basis for the objection. Merely having concern about the production of damaging information does not meet the accepted criteria. In order to craft an objection that will be entertained by the court, you must have the appropriate back up documentation to prove your point. .Much of this back up documentation is technical in nature and must be provided by an “expert” who understands the limits of certain technology or processes.
Even better than being reactive to a search dispute is to be proactive by working with search experts throughout the entire ESI process. This will help assure that you produce what you are required to without producing that which is not. Search technology is indeed a science, and therefore lawyers need to join forces with experts to properly perform their legal obligations. It is a rapidly changing area of expertise that requires the dedication and experience to stay current in the filed. It is indeed a different skill set that is outside the training of most practicing attorneys.
Drafting a well thought out search methodology requires a close collaboration between the subject matter expert (the attorney) and a technology expert (the search consultant). While it does cost money to retain the services of a search technologist, they can often save much more than their cost in reduced document production and decreased challenges from the opposition. As the field moves further into new forms of technology to assist in controlling the rising costs of EDiscovery (concept searches, predictive coding, linguistics and ultimately artificial intelligence), it may well require collaboration between attorney and technologist.
At the heart of a new federal lawsuit in San Francisco is the question of control of a Twitter account once an employee has left the company. PhoneDog LLC, is a South Carolina company that provides performance information on mobile phones and related applications. They have sued their former employee, Noah Kravitz, alleging that he is harming its business by continuing to use a Twitter account that he started while he was employed by PhoneDog LLC. It is likely that the outcome may hinge on an examination of business social media policies, or the lack of them. While the focus of the case is on the control and use of the court, it is the number of account followers that is of paramount importance.
In 2006, Noah Kravitz started using a company Twitter account to communicate with technology gadget followers with his take on new products and industry trends. The use of social media has become relatively standard practice in marketing at US firms, who often employ a specialist in this form of communication. Prior to joining PhoneDog, Kravitz was already a well-known technophile in Silicon Valley, with a certain measure of success.
In late 2010, Kravitz resigned from PhoneDog. He made a slight change in his Twitter account name and took about 17,000 Twitter followers out the door with him. PhoneDog filed a lawsuit against Kravitz in federal court, alleging that the followers are effectively, a customer list and therefore PhoneDog’s property; the conversion of Twitter account allowed Kravitz to pursue business opportunities adverse to PhoneDog. They allege damages in the amount of $340,000, calculated at the rate of $2.50 per follower per month for 18 months. A hearing in the case, PhoneDog LLC v. Kravitz, is scheduled for January 26 in San Francisco.
The Case Consequences
This case is likely to be the first of many that will effect how business form and maintain employer-employee social media policies and agreements. The legal boundary lines are currently quite hazy regarding employee’s personal use of social media and employer’s claim on the channels of communication. It has been settled law for some time that client lists, built over time using a company’s name and resources, and are in fact company property. The question is, do Twitter followers, LinkedIn contacts or Facebook contacts meet this same standard? Additionally, the suit may provide some guidelines on determining the value of a Twitter follower and further define ownership of accounts offered by an internet service provider, associated and paid for by a company and maintained by an individual.
This case should be closely watched by companies anxious for guidance on how their employees are using social media. This case will also likely affect e-discovery protocols and policies of businesses, firms and government agencies since Social media content has become a routine target of information requests in litigation and investigations. It is likely that the volume of social media requests in Ediscovery will continue to grow as companies expand their use of Twitter, Facebook and other forms of social media as they pursue all possible business opportunities.
A Quick Case Summary
During his time of employment at PhoneDog, Kravitz used the Twitter account to advertise PhoneDog products as well as to tweet non-work related material. This was apparently a standard practice of PhoneDog employees. The original account was created under the moniker of “@PhoneDog_Noah” and grew to 17,000 followers between the time he was hired in April 2006 and October 2010 when he resigned. Upon his resignation, he changed the name of the account to “@noahkravitz”. Later, he began working for PhoneDog competitor TechnoBuffalo. His account currently has about 24,000 followers.
PhoneDog claims it owns both the account and the password as company property and further calls the information “proprietary”. PhoneDog claims that the Twitter followers are the equivalent of a company list, and accuses Kravitz of using the account to: 1) communicate with its customers without permission and 2) benefiting from relationships formed through PhoneDog, including appearances on network and cable television programs.
Kravitz Preliminary Response
Kravitz provides several points to counter the arguments put forth by PhoneDog. He claims that PhoneDog gave him permission to continue using the Twitter account and further, directed existing followers to his new Twitter addresss on its website and with a farewell video it made available. Kravitz has emails which purport to show that PhoneDog subsequently asked him to continue “tweeting” about PhoneDog products and publish favorable articles, and that he did so under his new name. An important point to understand is that Kravitz claims that PhoneDog did not ask that he return the account before June 8, 2011, the day he sued the company for unpaid wages in California state court.
Social Media Ownership is the fundamental factor to consider
With a focus on the ownership of social media accounts, it is an important case for businesses to follow because there is no clear answer to the question under current law. PhoneDog asserts that both the account and the followers it generates are the sole property of PhoneDog. Kravitz argues that the account belongs to Twitter. Twitter’s terms of service states that “All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors” Twitter also reserves the right to terminate users and/or to reclaim usernames.
Another consideration to be resolved with this case are the policies regarding whether employees may create and mix non-work related content with work-related social media accounts. Kravitz claimes that PhoneDog had no policy on employee social media use but did ask its agents and employees to maintain Twitter accounts to help generate traffic to its site. He says he regularly used the account to tweet about sports, television, music, and other personal interests. An important secondary question that this suit raises is the following: Are followers interested in your employer and their goals, or is their interest in the individual writing the blog? Absent any direct policies, it is likely that employees may assume that if they use personal equipment (Smartphones, home computers, etc) to ‘tweet, connect or friend’ to various social media, that their views remain their own property, even when using a corporate sponsored platform.
What should companies do immediately
While the details of this particular case work their way to a decision, there are a number of steps that companies should immediately consider taking regarding social media policy. A written social media policy should be drafted and distributed to all employees to help eliminate any misunderstandings.
A partial list of considerations should include:
• A definition of who owns and controls the employee account
• Proper procedures to follow regarding use of accounts when an employee is terminated or leaves employment
• Procedures on permissions to change account names, settings and control of social media
• Create a policy on whether employees may mix personal with company messages on the social media site. Encourage employees to establish and keep separate forms of social media that represent and employees individual online persona.
The Federal Rules of Civil Procedure require that litigants know what potentially relevant electronic information they have stored as part of their business operations. This knowledge includes: what electronically stored information (ESI) they have, where it is located, how it is maintained, what it would cost to retrieve and produce it, and what the retention policies are of each business unit. It is imperative that this information be known and revealed in the earliest stages of litigation. Parties must be ready to disclose whether their ESI is readily accessible or not, based on the burden and expense associated with its retrieval.
During the Meet and Confer portion of the process, the Rules also require the parties be in a position to discuss the different forms that their ESI production might be in, including the production of ESI in its "native" format. Additionally, although destruction of ESI can result in sanctions, the new Rules provide possible protection against sanctions when ESI is destroyed by routine procedures such as automatic deletions, if they occurred in "good faith" and as part of the normal and planned course of business.
In fact, businesses able to show that certain information is not readily accessible may succeed in shifting significant costs of production to their opponents, or in forcing withdrawal of their opponents' discovery requests.
How Should Companies Proceed with Compliance?
There are a number of fundamental steps that companies must take in order to be on track for compliance with new EDiscovery rules. Sometimes this can be completed using internal resources, other times an experienced ESI consultant should be retained to help provide the correct framework for compliance. The most fundamental of these is the creation of a “data map”, making it part of the ordinary course of business, before litigation is even on the horizon. Essentially, a data map is a complete catalog of the record’s created and held by a company. The data map should describe the company’s records by business unit and include a complete description of the types of electronic media that they are maintained on and the location of each form of information. Each business unit should include retention practices that they follow, especially if they are different from the company as a whole. This process will result in the business having an in-depth snapshot (which must be constantly updated) of the nature, type and location of all documents and the retention policies that exist for each classification. This is the base information needed to quickly respond to requests for information from external resources and provide the basis for educating outside counsel on potential document production issues.
Due to the increased scrutiny of recordkeeping practices during litigation, a company also needs a written record retentions plan which utilizes the data map information as the first step. The data map allows the business group to review the different data populations and develop a practical rationale for determining which records to maintain and for how long the records need to be kept. The Sedona Conference on Best Practices recognizes that no single document retention policy can meet all the different needs of an organization. These determinations are guided by understanding whether there are business, legal or regulatory requirements that impact certain records. Based on this determination, a rational basis for keeping or destroying categories of records can be made and perhaps more importantly, be defended if needed.
The detailed information in a data map can include facts that outside counsel can use to convince their opposition – or the court – that certain forms of ESI are too difficult or costly to access. Indeed, recent case law makes it clear that courts will require specific and factually detailed support for any finding that ESI is not readily accessible and that either the business should not be required to produce it or the opposition should shoulder the cost of its production.
Given the volume of data and the speed with which companies are required to comply with requests by parties and fulfill compliance regulations, it is never to early to start preparing for litigation. The challenges of responding to requests has shifted from solely the ultimate results of the discovery to include the speed at which you can respond to these requests. Data mapping is key to this process.
Charting a data map can be a challenge for some companies considering much of their data is scattered about due to the explosion of electronically stored information in recent years. Nevertheless, like anything else pertaining to email retention and eDiscovery processes, it must be addressed in an efficient manner. Below is a summary of six key steps for companies to follow when creating a data map of their electronically stored information
1) Create a multi-disciplinary team
Data mapping starts with first identifying the ultimate needs of the different players, how the information will be used. Schedule a meeting to obtain input and buy-in from legal, IT, compliance, records management, finance and executive management. This will allow the group to create document retention policy(s) that will cover all relevant business units.
2) Conduct interviews with key personnel
Interviews of various company personnel must be conducted to probe into responsibilities and practices, including identifying who is responsible for the records maintained by each department or division of the business and whether they comply with pertinent records retention procedures. Any deviations in practice from existing records retention policies should be cataloged.
3) Develop a formal policy
After the interviews are completed, the team must discuss the findings in the context of meeting various requirements under the Federal Rules of Civil Procedure and if applicable, any industry regulations or government regulations.. The email retention policy should then be reviewed so that everyone is clear on the retention requirements and policies for the company.
4) Create a data map
Data maps should encompass the various types of electronic media on which the records are maintained, including file and email servers, desktop and notebook computers, portable drives and optical media, and Blackberries and other PDAs. Details are important, to facilitate as comprehensive a records assessment as possible.
As the policies are being developed, IT can start gathering information about the company's ESI, guided by a series of questions including: what type of ESI does the company have, where is it stored and what are the current retention periods? How difficult is it to access each data location and what format is data stored in? Who is responsible for each data location? The end result is a document that contains the company’s data map. Users should consider creating both a detailed spreadsheet of the information as well as a flow chart to be used to describe the data to outside counsel.
5) Data map verification
An important part of the data map process is verification. Once the information has been documented and charted, it is important to verify the data map to ensure it is complete and accurate. IT should test the map to determine if information is actually located where the map indicates and if it is accessible as indicated. This verification will highlight any potential data gathering processes in the future and allow changes to be made before there is a time consideration.
6) Keep the data map current
Finally, as technology changes and digital storage growth and application upgrades are constant, it is important for companies to check and update data maps regularly. This is not a one time process. An outdated data map is only slightly more useful than no data map at all once it is needed in litigation.
The Take Away
Companies must be knowledgeable about what information they have, where it is stored and how easy it is to retrieve. Data maps allow a company to have this information at their fingertips, along with written retention policies and practices to use during discussions with opposing counsel. The map will allow proper response to EDiscovery requests, plan for the Meet and Confer, provide a rational and defensible process to the court and help protect against sanctions.
The dire “prediction” continues in the blogosphere, newspapers and law firms that predictive coding will somehow eliminate the need for human review of documents during EDiscovery, and eliminate key legal jobs. The amount of world information (data) continues to double every two years, which makes it increasingly difficult for company’s to organize, track and identify information as responsive to EDiscovery requests. I believe that it is wishful thinking on the part of corporate law departments who are looking at the high cost of historical document reviw and hoping that technology will provide a low cost answer to the review of discovery documents.
The “history of discovery can easily be summarized in a few key steps:
• It wasn’t that many years ago when most discovery requests involved the exchange of only a few dozen boxes of information between attorneys. This information was reviewed by the lead counsel and a few associates over the course of a couple of weeks with certain documents identified as relevant for litigation. Oh, the good old days!
• Next came the discovery was the practice of “dumping” hundreds of boxes of documents on the opposition, burying the key documents throughout the boxes making it difficult to locate them. This is when the rise of linear review by teams of attorneys and paralegals became commonplace. It was the only practical way to get through the documents, and hopefully identify the key documents. Generally, you had one chance to locate documents.
• .Soon, databases were created that contained document summaries of key “fielded information” that allowed the attorneys to search through the database multiple times, using the information in the fields. The creation of a fielded database of every document was extremely expensive and time consuming and was often filled with errors due to the differences in review and legal experience of the review teams.
• For the last 10 -12 years, early EDiscovery emerged due to the rise of computerization and the increase in data. EDiscovery allowed us to perform online review of the total data set, which was a vast improvement over the handling of documents or document summaries. But the process was still lengthy and expensive to implement.
• Currently, EDiscovery involves collecting, processing and hosting documents, emails and other document types. Advanced technology allowed us to de-dupe populations, exclude non-responsive documents, remove personal emails and exclude documents using date range searches. The time of complex Boolean search technology allowed us to reduce document populations and allow teams of lawyers to review them all before they deliver “responsive” data to the opposition.
• The volume of data that must be included in EDiscovery has recently grown to include personal laptops, Smartphone’s, the cloud, social media, etc. Along with this increase in the volume of data, EDiscovery vendors have created advanced technology to help parse through the data. The emergence of predictive tagging has brought the technology further to the forefront. Predictive tagging (or analysis) involves “training” the software using algorithms to identify categories of relevant documents for each case. The algorithms help the programs to “learn” to perform iterative passes through the data, identifying documents that match what the attorneys have identified as relevant documents. And then, once it has been created the subset of documents identified must still be reviewed by a team of attorneys to verify all the decisions made by those developing the algorithms. While it is amazing technology that goes a long way to reducing vast quantities of data to a more manageable document population size, it must be driven by extremely smart attorneys and technologists, or the system will fail and return garbage for results.
What is the common link throughout this short history of discovery? That attorney reviewers and human interaction have been key to the success of litigation from the start. At each phase of the process, the role of attorney reviewers has changed, but there can be no denying that even with the advanced technology that is emerging, attorney reviewers will continue to play a strong and central role. Without human guidance and verification, computers can not handle the complex decision making that ultimately determines whether a single document is responsive or relevant to a particular set of circumstances.
Predictive tagging requires that a team of lawyers knowledgeable about the case must first manually go through a sample set of documents and teach the program what is relevant and what is not. This is an iterative process that must be performed, refined and repeated in order to create a relevant search of the total population. Once this baseline of documents has been identified, legal teams can benefit from the software’s quick prioritization of data. But ultimately, it is still the lawyer’s job to confirm the results and add new search parameters based on each set of results. This also involves complex use of sampling techniques and iterative processing.
The Takeaway
The review of data using advanced technology highlights the collaboration that must exist between technology and human review. Automation technology is the engine that improves the process, but so far, it can not drive it without people. It is clear that people are an indispensible part of the success of implementing technology into document review. While the technology can speed the process and dramatically reduce the number of documents which ultimately need to be reviewed, human involvement is key to both the success of the culling and the final review of the documents identified as fitting the search parameters.
Software is just a tool to be used effectively by lawyers to help identify relevant information in a sea of data. But people need to remember that it is the human mind that can identify a parallel course of investigation from reviewing the content of a document “selected” by using comprehension to process nuance in language, intuition and logic. Critical thinking will always be the most important process involved in the discovery process. Document review processes will change over time. The number of reviewers needed to perform this work is likely to decline over time, but the effectiveness of review teams will require lawyers and review teams to have a higher level of technological and legal background to be effective at this very important job. Those companies that harness this power and create processes to exploit the new technology while employing legal staff to perform a more sophisticated type of document review will rise to the top.
I am sure that there is a corollary “law” similar to Moore’s law (the number of transistors that can be placed inexpensively on an integrated circuit doubles approximately every two years) regarding the increase in new crimes that rapidly follow advances in new technology. Each time there is advancement in computer technology, it seems that there is an equal increase in the need for forensic analysis as people use computer skills in attempts to cover up their crimes. Electronic data has created an entirely new method of falsifying evidence which has required a corresponding increase in investigative methods.
An increase in the importance of forensic document analysis has occurred both within government agencies (think FBI) and EDiscovery consultants, on the cutting edge of technology in order to keep up with the increasing demand during litigation. The courts are realizing that this expertise is required in order to fairly evaluate the evidence that is part of today’s litigation.
Since this is an emerging area of expertise, there has been some confusion about where and how to present individuals as experts for the purposes of testifying. A recent ruling in the US District Court for the Southern District of Florida, Coquina Investments v. Rothestein and TD Bank, 2011 U.S. Dist. LEXIS 120267 (S.D. Fla. Oct. 18, 2011, helps to define the reliability of a digital forensic expert’s report. This is a civil case that included allegations of electronic forgery. There were several Daubert motions filed that sought to exclude the testimony of various traditional types of experts that covered areas of financial damages and generally accepted accounting practices. Additionally, the plaintiff sought to exclude what they claimed was a new type of expert when the defendant’s expert submitted an opinion that certain electronic documents were in fact e-forgeries.
The plaintiffs main argument was that the opinion of the defendants’ metadata expert was unreliable and should be excluded because the expert had only reviewed a sample subset of the total data. The Court reviewed the expert’s accompanying methodology and report and ruled that the expert had “employed a sound metadata analysis” and would be able to offer testimony about the emails identified as forgeries. The Court further concluded that the fact that only a sample was examined would only impact the weight of the evidence presented but did not impact the reliability of the experts conclusion about the forgeries.
I believe that this ruling creates an important precedent in metadata analysis while employing a commonsense approach to today’s exponential growth in data. Since EDiscovery productions often number in the hundreds of thousands if not millions of pages of documents, there needs to be a practical scientific method of analyzing the documents and the related metadata. It is impractical to think that each and every document needs to be examined before certain conclusions can be drawn about the document population. The use of sampling is a long accepted scientific practice that must be employed in litigation given the ever increasing size of document populations. This ruling goes a long way towards making sampling an accepted practice and offering forensic metadata expertise as a valid reporting mechanism.