orlando, florida the number of the beast (also, its location, whether it’s a luddite and whether...

Orlando, Floridawww.lowndes-law.com

The Number of the Beast(also, its location, whether it’s a luddite and whether its cooperative)

Presented by:

Drew Sorrell

Partner - Litigation

Group Leader – Privacy and eDiscovery

Orlando, Florida | www.lowndes-law.com

My topics:

1. Some new US cases2. Some Sedona3. Some EU Law4. Some Chinese Law


Zubulake v. UBS, 216 F.R.D. 280 (S.D. N.Y. 2003) (Zubulake I).

Zubulake v. UBS, 217 F.R.D. 309 (S.D. N.Y. 2003) (Zubulake III).

Zubulake v. UBS, 220 F.R.D. 212 (S.D. N.Y. 2003) (Zubulake IV).

Zubulake v. UBS, 229 F.R.D. 422 (S.D. N.Y. 2004) (Zubulake V).

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010).


No Florida cases citing Zubulake.


Florida federal courts cite but don’t usually engage (15 cites).


18 cites in 11th Circuit


The Court is well aware of the electronic discovery analysis set forth by the Zubulake v. UBS Warburg, LLC, opinions and subsequent cases, as well as of the ideals embodied in the Sedona Principles, and fully appreciates the considerations raised by these pioneering writings. Nevertheless, in this matter, the Court need not travel down the Zubulake road because the question before the Court is an elementary one that must be answered in all discovery matters, regardless of whether the medium of the discovery sought happens to be electronic in nature: whether we can reasonably anticipate that the information to be gleaned from the discovery sought will be relevant and non-duplicative. After all, electronic discovery is, at bottom, just discovery, and, as Rule 26(b)(2)(B) makes clear, the usual limitations to which all discovery is subject apply with equal force to electronic discovery.

Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, (S.D.Fla. 2009)(Magistrate Rosenbaum/emphasis added).


Nothing other than bad faith can be inferred from the facts of this case. Plaintiffs' letters were clear and concise, and the SCSO admits, without qualification, that the letters were received by the SCSO. SCSO's in-house counsel, Lane, failed to ensure that evidence be preserved. “It is not sufficient to notify employees of a litigation hold and expect that the [employee] will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched [and in this case, preserved.]” Zubulake, 229 F.R.D. at 432. Nothing of the sort was done in this case. In fact, Lane professed not to have ever read the Federal Rules of Civil Procedure to ascertain on even a rudimentary level what his and his client's obligations were in this regard (Hr'g Tr. 172:2-15), and, not surprisingly, nothing was done in this regard. But Lane is clearly not the only individual at fault for the spoliation. The senior SCSO officials who received the letters, including the Sheriff himself, completely disregarded the letters and their resultant legal obligations. …

Swofford v. Eslinger, 671 F. Supp.2d 1274 (M.D. Fla. 2009)(Judge Scriven/Emphasis added).


28 USC § 1920


A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.


Finnerty v. Steifel Lab Inc., ___ F. Supp.2d ___, 2012 WL 4933863 (S.D. Fla. 2012).


Finnerty v. Steifel Lab Inc., ___ F. Supp.2d, 2012 WL 4933863 (S.D. Fla. 2012)

Are the costs of maintaining an electronic database compensable under § 1920?


Finnerty v. Steifel Lab Inc., ___ F. Supp.2d, 2012 WL 4933863 (S.D. Fla. 2012)

Are the costs of maintaining an electronic database compensable under § 1920?

NO.


~ 76K Documents

~ 1.8 Millions Pages


Legislative History


“This amendment to § 1920(4) originated with a recommendation of the Judicial Conference Committee on Court Administration and Case Management.” Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 165 (3d Cir.2012).

Steifel, 2012 at * 2.


.tiff’ing / .pdf’ing


.tiff’ing / .pdf’ing

Taxable


Contract regarding costs?


Tampa Bay Water v. HDR Engineering, Inc., 2012 WL 5387830

(M.D. Fla. 2012).


In any litigation arising out of this Agreement or in any way related to the performance of the Work, the prevailing party shall be entitled to recover all costs and expenses incurred, including, without limitation, attorneys' and legal assistants' fees and costs incurred prior to trial, at trial, on any appeal, and in any bankruptcy proceedings.


$10,898,186.22


$10,898,186.22

Awarded in Costs and expenses


HDR also requests an award of approximately $3.1 million in electronic discovery costs. Tampa Bay Water argues that most of these costs relate to the collection, storage, formatting, coding and organization of electronically stored information (“ESI”), which cannot be taxed as costs. In addressing the taxation of electronic discovery charges under § 1920(4), the Third Circuit persuasively reasoned that “only the conversion of native files to TIFF (the agreed-upon default format for production of ESI), and the scanning of documents to create digital duplicates are generally recognized as the taxable ‘making copies of material.’ ” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 167 (3d Cir.2012).

But in this case, the precise scope of § 1920(4) is immaterial because HDR is entitled to recover its reasonable ESI costs under the parties' contract. This was a lengthy, highly technical case which involved 17 million pages of documents. Under the circumstances, the electronic discovery costs incurred by HDR were certainly reasonable FN15 and necessary in managing this complex, document-intensive case. While a large part of the $3.1 million in ESI costs is attributable to the storage and hosting of ESI, that amount was reasonable and necessary to the effective utilization of ESI in this case. Accordingly, no reductions will be made for the ESI costs incurred by HDR.

FN15. To put it in perspective, the total electronic discovery costs would equate to a charge of approximately $0.18 per page for a single copy of the 17 million pages of documents involved in this case.

Tampa Bay, 2012 WL at * 21 (emphasis added).


SPM Resorts, Inc. v. Diamond Resorts Management, Inc., 65 So.3d 146 (5th DCA 2011) (granting petition for certiorari and quashing lower court’s decision requiring producing party to pay for ½ of the costs of producing responsive documents reasoning that requesting party should pay for all costs associated with requested production of documents).


“TAR”


Predictive Coding


AKA:

Automated Review

Predictive Categorization

Artificial Intelligence


What it is:

Computer Learning


What it is not:

Word Search or Iterative Manual

Coding


EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012). C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012).

Vice Chancellor J. Travis Laster orders:

1.Same Vendor2.Predictive Coding

Sua Sponte


Magistrate Peck, Southern District of

New York


In re Biomet M2a Magnum Hip Implant Products Liability Litigation,2013 WL 1729683 (N.D. Ind. 2013).

Start: 19.5 Million DocumentsKeyword: 3.9 MillionDe-Dupe: 2.5 MillionStatistical Sampling: 99% Confidence 1.37%-2.47% Remain/Responsive

Eight Contract Attorneys and “One Round”


[Defendant] …invited the Plaintiffs' Steering Committee to suggest additional search terms and offered to produce the rest of the non-privileged documents from the post-keyword 2.5 million so the Steering Committee can verify that … [Defendant] is producing the relevant documents. The Steering Committee has declined those offers, believing they are too little to assure proper document production.

In re Biomet M2 ,at * 1.


Class Action Plaintiffs argue: “keyword taint”



Class Action Plaintiffs argue:

Boolean identifies < 25% of Relevant Documents



Keyword Search


In re Seroquel Products Liability Litigation, 244 FRD 650, 661-662 (M.D. Fla. 2007)(Magistrate Baker):

The record shows a number of specific failings in AZ's chosen efforts to meet its discovery commitments. The key word search was plainly inadequate. Attachments, including non verbal files, were not provided. Relevant emails were omitted. AZ's deduplication method remains mysterious. Production was tardy. AZ's efforts in preventing and solving technical problems were woefully deficient. These shortcomings were adequately and persuasively described by Plaintiffs' witnesses. AZ's limited witness and arguments, to the extent they take issue with most of Plaintiffs' contentions, lacked foundation and completeness and were frequently off point.

AZ purported to embrace the requirements of Rule 26 and the Sedona Principles. However, the reality was to the contrary. For example, while key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process. Rather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, AZ undertook the task in secret. Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness. If AZ took such steps, it has not identified or validated them.

(footnotes deleted/bolding added)


National Day Laborer Org. Network v. U.S. Immigration and Customs, 877 F. Supp.2d 87, 108-109 (S.D. N.Y. 2012).

The second answer to defendants' question has emerged from scholarship and caselaw only in recent years: most custodians cannot be “trusted” to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context. Simple keyword searching is often not enough: “Even in the simplest case requiring a search of on-line e-mail, there is no guarantee that using keywords will always prove sufficient.” There is increasingly strong evidence that “[k]eyword search[ing] is not nearly as effective at identifying relevant information as many lawyers would like to believe.” As Judge Andrew Peck—one of this Court's experts in e-discovery—recently put it: “In too many cases, however, the way lawyers choose keywords is the equivalent of the child's game of ‘Go Fish’ ... keyword searches usually are not very effective.”

(footnote omitted/bolding added)


More.


The Cooperation Proclamation


Cooperation is Not Capitulation


Directive 95/46/EC


Protects “Personal Data”


Defined as:

“any information relating to an identified or identifiable natural

person.”


May not transfer to a third party country unless adequate

safeguards.


i.e. Not the US


E.U. Privacy Directive:

1. Restricts scope of discoverable data; and, 2. Defines “processing” as the “collection, recording, organization, storage, adaptation, or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise

making available, alignment or combination, blocking, erasure or destruction”


“Federal” Employee Privacy Law requiring “written” Consent.


People’s Republic Of China Law on Guarding State Secrets


Covers:

1. Partially Owned State Secrets

2. Information on the state of the business regardless of ownership


Rio Tinto


Bribery and States Secrets

High of 14 years


Secrets Part of the Trial Closed to Public


November 5, 2012:

Standard Administration of PRC


Official Notice No. 28 of 2012

Guideline for Personal Information Protection within Information System for Public and Commercial Services


Personal Information may not be sent out of China Without:

1. Consent of Subject2. Existing Law Authorization3. Explicit Permission of Relevant

Ministry


What to do?


1. “Think Global, Hire Local”

2. Object early and Often in US Court

3. Consider the Hague Convention

4. In E.U. Attempt to have a protective order entered in compliance with E.U. Law

5. Comply with the E.U. Exceptions (three - possible / burdensome)


Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987)

(applicability of the Hague Convention in US Litigation).

American Bar Association Resolution 103 (February 2012)(urging comity).


Questions