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DISCUSSION SESSION #2: BIG DATA & STORYLINES

Brian Clark (Lockridge Grindal Nauen P.L.L.P.) and Whitney Street (Block & Leviton)

The myriad communication technologies available through discovery present challenges, especially when plaintiffs

can in many cases only obtain the “log” detail of a communication rather than the actual content, such as phone

records, travel & expense data, and text message log data. The discussion will focus on strategies for integrating

together disparate communications sources and building a timeline of conduct for a conspiracy, bad act, or other

issues plaintiffs in complex litigation must explain.

I. IDENTIFYING AND OBTAINING THE RELEVANT DATA.

A. Phone Call Data

Many of the corporations we litigate against have repeatedly advised their employees to avoid

putting certain topics in writing. Therefore, sometimes the only evidence a communication

occurred is a record of a phone call.

1. Custodial data within the defendants’ possession, custody, or control

� Call data on handheld devices, whether active or inactive, issued by the company or

personally owned but used for business purposes.

� Data backed up to a server or the cloud (e.g., iTunes).

� Custodians can personally download cell phone records through carrier website.

� Request identification of numbers by Defendants, but verify numbers through

clients, Accurint, and other sources.

� Trigger any arguments about privacy and possession, custody, or control early so

data can be preserved, even if motion practice is necessary to have the data actually

produced.

2. Defendants’ Copies of Phone Bills (ESI/Hard copy).

� In this era, companies often have company-issued cell phones and one massive cell

phone bill each month. Frequently these are retained in admin/finance files along

with other routine bills. Unlike the early days of cell phone use, bills these days tend

to have complete call records (i.e., incoming and outgoing calls and text message

information, by date, time and duration).

3. Phone Carriers.

� Short retention periods mean that you must move quickly after filing suit to issue

subpoenas to third party carriers or risk losing this data.

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� This requires earlier meet and confers with defendants to identify the relevant

custodians, their phone numbers, and the relevant carriers.

� A warning: This will be a time and labor intensive endeavor. Hence, if your class

period is remote in time, weigh the costs/benefits of pursuing this information.

B. Text Message Data

1. Content of text messages.

� Carriers typically retain the content of text messages for a very short period of time

(a couple of days), if at all.

� The only way to get the content is from (a) the device itself or (b) a backup system.

2. Text message logs.

� Allows you to see date, time, and recipient/sender’s number.

� Seek this information from all sources described in I.A. above.

C. Expense Reports and Receipts

1. Understand how data is stored/tracked and what software is in use.

2. Seek expense data in electronic spreadsheet format with any available electronic “links”

to source receipts/documents.

D. Calendars, Outlook Contacts, Journals, Itineraries

1. Calendar entries can be sorted into chronology to inform likely purpose of calls.

2. Contacts can indicate alternative phone numbers for custodians. In antitrust cases, can

also reveal additional potential conspirators.

E. Other

1. Are there other means by which these individuals communicate, e.g., chatrooms?

2. Is there other data that defendants track that could reveal suspicious activity or

patterns?

3. Other ideas?

II. TAILORING YOUR DISCOVERY TO THE SPECIFIC ALLEGATIONS AT ISSUE.

A. Horizontal Antitrust Price Fixing Conspiracies

1. Price Fixing

� Contacts between competitors who should not be talking to each other: phone, text,

expense reports.

2. Bid Rigging/Market Allocation/Customer Allocation

� In addition to the foregoing, how do these entities track bids, markets, and/or

customers?

B. Product Defect

1. Who knew about the defect, when, and what did they do with that information? Does

the data show who someone called once they learned about the defect?

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C. Mass Torts

1. Who/what/when/why/where of a problem with a medical device or drug. When

problems with device/drug were flagged, who did your target custodian call? Who did

that person call? How does that confirm/confuse the story that emails and other

written documents tell?

III. MINING THE DATA

A. The nuts and bolts of analyzing phone data and text messages

1. Identify the relevant telephone numbers

� Who are the key custodians?

� What are their numbers (home, office, cell)?

2. Locate relevant data

� Searches for carrier names and unique phrases, such as “call [NEAR] detail”

3. Convert and clean data

� Conversion software (e.g., ABBY Finereader, Cogniview) is affordable and effective.

� However, conversion is imperfect; will need assistance with correcting/cleaning

data.

4. Construct the database (e.g., MySQL)

5. Craft and refine the output (e.g., dealing with people who change companies)

B. Compiling expense report and calendar/journal data into a manageable format

� One approach: A table that organizes the location of key players by month or week.

From there, you can identify when competitors were in the same city at the same time

and dig further.

� Maintain a practical lens. For example, two executives from competing companies are

unlikely to split a dinner check. However, you may find a valet charge that puts the

non-paying attendee at the dinner.

� Other ideas?

C. Analyzing other types of data

� For example, running queries to identify bids that are not freight logical or that are

throwaway bids.

� Other ideas?

IV. PUTTING IT ALL TOGETHER

A. Find the patterns.

� For example, identifying a 2 minute phone call between Competitor A and Competitor

B is going to have relatively low probative value. In contrast, a call between A and B,

followed directly by a call between A and C, and then a second call between A and B

(all in relatively quick succession) is going to be far more compelling.

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B. Build context.

� Where you don’t have the content of the communication, such as with phone calls and

text message logs, it is crucial to build context. For example, did the calls occur shortly

before the price increase announcement or other suspicious activity?

� Does a call give context to an otherwise innocuous email?

� Is call volume itself out of the ordinary around an important event in the case?

C. Anticipate and close off their defense.

� Understand the legitimate (or purportedly legitimate) reasons why two competitors

may have been in contact (e.g., supply agreement, failed merger discussions). Know

the relevant time periods and the players involved.

� Strategy consideration: Should you nail down the scope of legitimate business

arrangements (as to time and persons involved) in depositions? [Pros and Cons]

V. Telling the Story

A. Approaches

1. Timeline (see e.g., eBooks trial slides)

2. Animated Timeline (see e.g., “Silo” example)

3. Narrative

4. Spider-web

5. Others?

B. Other ideas or experiences?

1. How do different types of cases change the approach to story-telling?

2. What are the pitfalls to avoid in telling a story using big data?

3. What approaches have you seen work effectively? What were the limitations, if any?

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Fed. R. Evid. 1006 Summary of Phone CallsIn re Urethanes Antitrust Litigation No. 04-md-1616 JWLDATE TIME OF DURATION FROM PHONE # TO PHONE # CALL VERIFICATION PHONE # VERIFICATIONDAY11/17/2000 11:09 AM 15.6 min. Bernstein/Calling Fischer/Office 517-636-4115 BASF Corp US Dow's Responses to Plaintiffs' FourthCard (Dow) 4388607-608, at 608 Set of Interrogatories, p.13.(BASF) TDCC_PU303913-14TDCC_PU2444275-82, at 7711/27/2000 5:46 PM 1.7 min. Bernstein/Calling Fischer/Office 517-636-4115 BASF Corp US Dow's Responses to Plaintiffs' FourthCard (Dow) 4388607-608, at 608 Set of Interrogatories, p.13.(BASF) TDCC_PU303913-14TDCC_PU2444275-82, at 7712/7/2000 3:43 PM 0:30 min. Huntsman U.S. 856-423-8300 Bernstein/Office 734-324-6266 HC013428745 BASF's Responses to Plaintiffs' FourthHeadquarters (BASF) Set of Interrogatories, p. 18.BASF Corp US 001443-56BASF Corp US 46068312/8/2000 9:43 AM 0:18 min. Huntsman U.S. 856-423-8300 Bernstein/Office 734-324-6266 HC013428745 BASF's Responses to Plaintiffs' FourthHeadquarters (BASF) Set of Interrogatories, p. 18.BASF Corp US 001443-56BASF Corp US 46068312/8/2000 11:27 AM 0:30 min. Huntsman U.S. 856-423-8300 Bernstein/Office 734-324-6266 HC013428745 BASF's Responses to Plaintiffs' FourthHeadquarters (BASF) Set of Interrogatories, p. 18.BASF Corp US 001443-56BASF Corp US 46068312/8/2000 1:27 PM 1:06 min. Huntsman U.S. 856-423-8300 Bernstein/Fax 734-324-6773 HC013428745 BASF Corp US 125054-55Headquarters (BASF)Page 1 December 12, 2012