In This Issue:

	Recent ESI Court Decisions
	Practice Points: Update Electronic Discovery Filtering — Cutting Edge "Early Processing Metrics" Technology
	News & Events

Recent ESI Court Decisions

Court Looks to Federal Rules of Civil Procedure for Guidance on Production Format in Criminal Case
United States v. O'Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008). In this suit, the government alleged the defendant received gifts from the co-defendant in exchange for expedited visa requests. The defendants filed a motion to compel claiming the government did not fulfill the responsibilities set forth in a previous discovery Order. Included within the electronic search were electronic documents and e-mails that the defendants claimed were produced in a manner rendering them unidentifiable. Applying Fed.R.Civ.Pro. 34, the court ordered the parties to participate in a good faith attempt to reach an agreement on production in a readily usable format.

Court Sanctions Plaintiff by Dismissing Complaint Based on Spoliation of Evidence
Ingoglia v. Barnes & Noble College Booksellers, Inc., 2008 WL 458504 (N.Y. App. Div. Feb. 19, 2008). In this action to recover damages for defamation, the defendant appealed the New York Supreme Court's decision to deny its motion to dismiss. The defendant sought dismissal based on the common law doctrine of spoliation which provides for sanctions for negligent or intentional destruction of evidence. Previously, the defendant sought inspection of the plaintiff's home computer and the court granted the request. The defense expert found evidence that numerous files, images, folders and some internet history had been deleted following the request for inspection but preceding the production, as well as evidence of the installation of software designed to remove data. This court reversed, finding an abuse of discretion, and granted the dismissal due to the severe prejudice suffered by the defendant as a result of the plaintiff's spoliation.

Court Refuses to Hold Attorney Responsible for Negligent Reliance on Client's Search Methods
Finley v. Hartford Life & Accident Ins. Co., 2008 WL 509084 (N.D.Cal. Feb. 22, 2008). In this wrongful termination of disability benefits suit, the plaintiff filed a motion for sanctions alleging the defendant failed to timely disclose a relevant surveillance video taken of the plaintiff. The plaintiff sought monetary sanctions reimbursing the costs spent deposing members of the defendant corporation and retaining the services of an expert. Additionally, the plaintiff sought sanctions against the defendant's attorney for failure to perform a reasonable inquiry. Citing an "administrative oversight", the defendant claimed a reasonable search was conducted and upon discovery of its existence, supplied the full video six months later. In regard to the plaintiff's claim of negligence, the attorney argued lack of evidence of bad faith should preclude sanctions. Disagreeing with the defendant's position regarding the surveillance video, the court found it unreasonable to rely on a discovery system with few checks and balances. Further, while the court found the defendant's attorney negligent in oversight of the discovery process, it refused to issue personal sanctions due to an absence of evidence of bad faith. Of the $57,888.50 sought by the plaintiff, the court awarded $9,000 as a reasonable sanction.

Court Holds Mere Assertion of Burden Insufficient to Relieve Production Duties
City of Seattle v. Prof'l Basketball Club, LLC, 2008 WL 539809 (W.D.Wash. Feb. 25, 2008). In this dispute over performance of a lease agreement, the plaintiff filed a motion to compel the defendant to search and produce responsive e-mails from six of its eight members. Having produced 150,000 e-mails from two of the members, the defendant objected to this request, claiming the search would "increase the universe exponentially" and would generally produce irrelevant documents. Finding a principal-agent relationship between the defendant and its members, the court determined sufficient cause to demand the documents from its members as the defendant was in possession, custody or control of the e-mails at issue. The court, therefore, ordered the defendant to produce e-mail from the remaining four members at issue, finding the defendant's claim of burden to be insufficient under Fed.R.Civ.Pro. 26(b)(2)(B).

Court Narrows Scope of E-mail Request and Determines E-Mail on Backup Tapes to be Inaccessible
Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D.Ga. Feb. 25, 2008). In this employment discrimination suit alleging company-wide sexual harassment, the plaintiffs filed a renewed motion to compel the defendants to produce documents, including e-mails, that were sexual or of a gender derogatory nature from 1998 through 2006. The defendants claimed the e-mail was not reasonably accessible due to undue burden and cost as it required the restoration of numerous backup tapes and claimed fees of $79,300 for e-mail restoration from a single employee over a two year period. Agreeing with the defendants, the court found the burden of the request to outweigh the likely benefit and limited the retrieval to two narrow categories of e-mail: (1) undeleted e-mail of current employees specifically named by the plaintiffs; and (2) any relevant e-mails of the nature cited by the plaintiff of which the defendants were aware of and had retained. Additionally, the court denied the plaintiffs' request for spoliation sanctions, finding the defendants' document destruction policy reasonable.

Court Declines to Issue Document Review Fees in Sanction Award
Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Limited, 2008 WL 565100 (D.D.C. March 4, 2008). In this trademark registration dispute, the defendant sought attorney's fees and costs associated with the plaintiff's failure to comply with an earlier discovery order. The defendant sought monetary reimbursement for the filing of the second motion to compel as well as the pending motion for fees and costs. The plaintiff argued the time spent on unrelated issues and those the defendant did not ultimately prevail on should not be awarded. Additionally, the plaintiff claimed that the defendant's time estimation was grossly unreasonable and excessive. Agreeing with the plaintiff, the court denied reimbursement for ordinary litigation activities, including time spent on document review and related activities and internal discussions concerning the plaintiff's discovery failures.

Court in Qualcomm Allows Attorneys to Fully Defend Themselves
Qualcomm Inc. v. Broadcom Corp., 2008 WL 638108 (S.D.Cal Mar. 5, 2008). In this underlying patent infringement case, cross examination of the plaintiff's witness revealed over 200,000 pages of undisclosed relevant e-mails during one of the last days of trial. The court, displeased with the "organized program of litigation misconduct," ordered the plaintiff's counsel to show cause as to why individual sanctions should not be imposed against the attorneys. The attorneys filed a motion shortly thereafter seeking application of the federal common law self-defense exception which would have allowed disclosure of attorney-client privileged information at the hearing. On January 7th, 2008, the magistrate judge denied the motion and this appeal followed. The Senior District Court Judge, Rudi M. Brewster, vacated the trial court's decision as violating the due process rights of the attorneys to fully defend themselves and found the self-defense exception to apply.

To view additional case summaries visit: http://www.krollontrack.com/case-summaries/

Practice Points: Electronic Discovery Filtering -- Cutting Edge "Early Processing Metrics" Technology

Electronic discovery technology continues to advance at a faster rate than ever before, giving legal teams an increasing number of options to ensure they are reviewing the most relevant documents first. One important area of technological advancement is electronic data filtering and processing.

Today, legal teams can narrow a dataset to include only documents with a higher probability of relevance to important issues and themes in a case by using Boolean and proximity search methods. Boolean search involves the use of Boolean operators, such as "and", "or", and "not". In a Boolean search one may use these operators to refine the scope of the search. Proximity search, on the other hand, locates documents with terms that occur within a predetermined number of other words or characters. For example, proximity search could be used to find documents with the word "fast" within 10 words of "red car", matching phrases such as "the red car drove fast." The dataset can be further reduced through the identification of important custodians and dates, whereby the electronic information from irrelevant people and timeframes is removed.

The filtering technology outlined above is extremely beneficial when narrowing down a large set of documents to a workable, more likely relevant document set. However, in many cases the keywords and key custodians are not immediately obvious. Early Processing Metrics (EPM) is a new tool that can help a party confirm the usefulness of search terms and filtering criteria.

EPM provides a chance to analyze your filtering criteria before the data is processed, encouraging the removal of keywords that are over-inclusive or under-inclusive from a keyword list based on a series of detailed reports about each word and its corresponding hit rates. For example, Company A sues Company B for breach of a contract relating to the sale of a parcel of land XYZ. In response to its discovery obligations, Company B wishes to search through e-mail for what it forecasts will likely be relevant documents, those containing the keywords "XYZ" and "contract". Using early processing metrics, Company B is able to determine via the early processing metrics output report that this search resulted in 3 million hits. Company B digs deeper and learns that all Company B owned land is referred to as XYZ and this parcel is more accurately referred to as Vacationland. Company B drafts a new search using the terms "Vacationland" and "XYZ" and the early processing metrics output report provides 100,000 hits. Not only is this dataset more likely to contain relevant information, time and costs associated with processing, reviewing and producing this information using the more accurate keywords are greatly decreased.

Not only can EPM be used to determine the appropriateness of keywords, this technology can also be used to determine key custodians, file types, date ranges and level of de-duplication. Each of these techniques can decrease the amount of data that is ultimately processed and reviewed. As review is often the most costly phase of discovery, EPM technology can put you in control of discovery costs.

News & Events

Kroll Ontrack Issues Another "ESI Report" on the Legal Talk Network
Kroll Ontrack has partnered with the Legal Talk Network to discuss cutting-edge issues and judicial opinions relating to electronically stored information. Michele Lange, Director of the Legal Technologies product line for Kroll Ontrack, hosts the radio show entitled "The ESI Report." The show's segments, the Spotlight, the Buzz and Bits and Bytes Legal Analysis, concentrate on hot topics in the area of electronic discovery and give listeners a snapshot into important issues facing practitioners, including rapidly evolving case law. The current edition brings to light the important concerns faced by in-house counsel by discussing common corporate IT issues with a technical consultant and eliciting advice from a litigation counsel and e-discovery coordinator. Additionally, listeners will be briefed by Kroll Ontrack's legal correspondent on the controversial discovery order issued in the case of Diabetes Centers of America, Inc. v. Healthpia America. Become a part of the over 10,000 listeners to date by visiting: http://krollontrack.com/legal-technologies-podcasts/

The Sedona Conference Publishes Commentary on ESI Evidence & Admissibility
Working Group One of The Sedona Conference, focused on Electronic Document Retention and Production, recently released commentary on ESI Evidence and Admissibility. The paper is divided into three parts: ESI authentication and the applicability of evidentiary rules and case law, prediction on future challenges related to the use of ESI and guidance on the use of ESI. The Sedona Conference is a non-profit organization that strives to serve the legal community as a knowledge repository where academia, attorneys, judges and others can debate issues and exchange information. This publication can be downloaded at: http://www.thesedonaconference.org/dltForm?did=ESI_Commentary_0308.pdf

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This newsletter is written by Joni Shogren, a Kroll Ontrack staff attorney with assistance from Gina Jytyla, also a Kroll Ontrack staff attorney. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit http://www.krollontrack.com.