e-DISCOVERY: How do you discover relevant text messages but protect privileges?

In Flagg v. City of Detroit (E.D. Mich. Mar. 20, 2008) 2008 WL 787061, the Plaintiff, alleging a lax investigation of the murder of a relative and the active concealment of material evidence related to that investigation, sought to discover text messages sent between various City employees and officials.  Defendants sought to quash subpoenas to SkyTel, and, in one Order issued March 20, 2008, the Court denied the Motion to Quash.  Instead, the Court concluded that the relevance (and resulting discoverability) of the text messages depended upon the content of each text message.   The Court then established a procedure for the review of the content of each text message.   Since a text message could theoretically be relevant, but not subject to discovery (due, for example, to a privilege), the Court determined that the review procedure had to incorporate a mechanism for resolving objections to production of each relevant text message.

On that same day, the Court issued an Order establishing the review protocol.  The Court's protocol required the defendants to PIN numbers for the pagers in question so that SkyTel would be able to produce only the text messages sent or received by those particular devices.   The Court then assigned two magistrate judges (the case-assigned magistrate judge, along with a second magistrate judge) to monitor the process of obtaining text messages, review those text messages, and make an initial finding as to whether each text message was discoverable under the standard of Fed. R. Civ. P. 26(b)(1).

The Order setting forth the protocol is included in the Acrobat.com widget embedded below:


If you do not have Flash technology installed in your browser of choice (or this new-fangled beta product from Adobe isn't ready for prime time), you can find that March 20, 2008 protocol Order here.

To hear a discussion about the Protocol Order in Flagg, visit the LegalTalkNetwork and listen to the most recent edition of The ESI Report.

[Via Stark County Law Library Blog and Electronic Discovery Law, both excellent resources]

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e-DISCOVERY: CLE course on Developments in Employment Cases

Aliabalogo The American Law Institute-American Bar Association Continuing Professional Education (ALI-ABA)  is offering a live telephone seminar on e-Discovery Developments in Employment Cases.  Since you don't actually have to leave your office to attend, it might fit into your habitually congested schedule.  As an interactive seminar, the program affords the opportunity to submit questions for faculty discussion in advance of and during the event.  The course of study, comprised of 120 minutes of instruction, provides guidance on the e-Discovery issues involved in Employment Cases.

From the Seminar materials:

E-Discovery has led to the explosion of litigation budgets, arcane technological disputes beyond the expertise of most practitioners, and, quite recently, to a client and ethical disaster in the now famous Qualcomm case. We are delighted to have two federal magistrate judges, Paul Grimm from the District of Maryland and James Francis from the Southern District of New York, both of whom have been in the forefront in the upsurge of ESI collateral litigation. For example, Judge Grimm is the author of the Lorraine decision which is a 100 page soup-to-nuts tutorial on the authentication and admissibility of ESI, and Judge Francis is the author of Treppel case where he articulated the legal principles applicable to disputes over the preservation and searching of back-up tapes. The Judges will discuss, analyze, and, most importantly, provide practice tips on ESI retention programs, when and how to implement a litigation hold, spoliation avoidance techniques and avoidance of a Qualcomm disaster, framing Rule 34 discovery requests in light of the new E-Discovery rules (TIF, pdf and when and how to go native), the importance of the Rule 26(f) conference, keyword search terms, the role of experts and lawyers in constructing search protocols in light of O’Keefe and Lundin, techniques to manage the exploding cost of E-Discovery, authentication and admissibility of ESI, attorney-client privilege issues, the proposed new Rule 502, Hopson, and clawback agreements, allocation of costs between the parties, and malpractice avoidance and the Hunton Williams model.

Topics include:

  • Implementation of litigation holds
  • Spoliation avoidance
  • Costs – who pays?
  • Keyword search terms, the role of lawyers and experts, and O’Keefe and Lundin
  • Attorney-client privilege issues, Hopson, and clawback agreements
  • Framing Rule 35 e-discovery requests -- when and how to go native
  • Sedona conferences influence

Live Telephone Seminar / Live Audio Webcast Cost: $169
Tuesday, June 24, 2008, 1 - 3 pm EDT
For more information or to register go to www.ali-aba.org/TSNU22/

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COMPLEX TECH: If your firm doesn't understand technology, digital redaction disasters are inevitable

With electronic court filings becoming a thing of the present, not the future, adequate electronic redaction is now essential. For example, General Order 08-02, issued by the United States District Court, Central District of California, requires redaction to protect "sensitive and private information."  The Order provides, at Part IV.E:

The parties shall refrain from including, and/or shall redact where inclusion is necessary, the following personal data identifiers from all documents filed with the Clerk.

  1. Social Security Numbers: If an individual’s Social Security Number must be included in a document, only the last four digits of that number should be used.
  2. Taxpayer Identification Numbers: If a taxpayer identification number must be included in a document, only the last four digits of that number should be used.
  3. Names of Minor Children: If the involvement of a minor child must be mentioned, only the initials of that child should be used.
  4. Dates of Birth: If an individual’s date of birth must be included in a document, only the year should be used.
  5. Financial Account Numbers: If financial account numbers are relevant, identify the name or type of account and the financial institution where maintained, and only indicate the last four digits of the account number.
  6. Home Address: If a home address must be included, only the city and state should be used.
  7. Additional Information: For good cause, the assigned judge may require redaction of additional information.

Before the digital world was fully upon us, redactions were accomplished with a black marker.  Now, attorneys and support staff are preparing documents for filing electronically, and redactions are applied with electronic tools.  Unfortunately, some people believe that a redaction is sufficient if the private text is visibly obscured.  But with digital information, merely obscuring text may not (or will not) actually remove it from the electronic document.  The results of incomplete redaction can be devastating.

In a sex discrimination case against General Electric, Sanford, Wittels & Heisler (based in Washington, D.C.) electronically filed documents for the plaintiffs with large passages redacted.   (Douglas Malan, GE Suffers a Redaction Disaster (May 28, 2008) www.law.com.)   The redactions were insufficient:

But as of late last week, you could download several documents through PACER's federal court filing system, copy the black bars that cover the text on the screen and paste them into a Word document.

Voilà. Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required.

(Ibid.)  The fallout is that a potential settlement may unravel because of the disclosure of information about General Electric that both sides agreed to keep secret.

A PACER account representative was unaware of the problem until she was guided through the process of downloading, copying and pasting the "redacted" information into new document, where, like magic, it appeared in an unredacted form.  It is important to note that PACER employees do not check filings for redaction adequacy.  That obligation rests on the lawyers.  As noted in Malan's law.om article, "Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield."  In the GE case, "Plaintiff's attorney Sanford couldn't say what process or software his law firm used to redact the information in the Schaefer case. 'Quite frankly, I'm not involved in the mechanics,' he said."  (Ibid.)  One would venture a guess that this unfortunate attorney knows now.

In a subsequent post I plan on reviewing Adobe Acrobat v.8, which provides secure redaction tools sufficient for all filings and at a price point that should be affordable to even the smallest firms.

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e-DISCOVERY: Updated online resources

Rambrog100 In December 2007, Robert Ambrogi published a two-part article on his blog, Robert Ambrogi's Lawsites, that collected and reviewed e-discovery sites on the internet.  (See Part 1 and Part 2.) After the publication of that two-part article on Lawsites, two prominent e-discovery sites received substantial updates (one receiving a complete domain name change and makeover) that deserve follow-up coverage.  The first, DiscoveryResources.org, sets the standard as an e-discovery information repository.  According to Robert Ambrogi:

DiscoveryResources.org "may be the leading e-discovery portal" and that its Sound Evidence blog, written by e-discovery expert Mary Mack, is "one of the best known e-discovery blogs."

On May 1, 2008, the site relaunched with a number of updates and improvements.  Updates include: new navigation for tracking e-discovery best practices and case law; new "From the Experts" articles on current e-discovery issues and trends; RSS feeds for tracking the latest news and information; updated links to industry resources and judicial opinions; a newly designed monthly newsletter; and, links to industry blogs and other e-discovery community resources.

Another popular resource, Information Governance Engagement Area, has been discontinued in favor of a new site. The author, Rob Robinson, who has worked with several e-discovery companies, just launched Complex Discovery, which he describes as a source for "information, tools and tactics relevant to the growing discovery market." The site is organized around e-discovery stages, including collection, processing, review and production, and has a number of helpful resources. In addition to articles, news items, guidelines and the like, Robinson highlights several of the site's innovative features:

Scribd - iPaper Document Library: A growing online repository of interesting and applicable papers relevant to the field of electronic discovery.

Yahoo! Pipes EDD Mashup (RSS): An aggregation of key electronic discovery RSS feeds that serves to provide continuous updates on topics related to electronic discovery.

Twitter - ComplexDiscovery Updates: A Twitter feed that highlights the daily posting on the specific ComplexDiscovery RSS feed.

Mogulus - Video Learning on EDD: A video channel designed to share publicly available video presentations relating to electronic discovery.

Mofuse - Website Mobile Version: A mobile version of the ComplexDiscovery website designed specifically for mobile devices to include cell/iPhones.

(Robinson, InfoGovernance To ComplexDiscovery = More Robust And Objective eDiscovery Content (April 11, 2008) http://infogovernance.blogspot.com/.)

These sites are excellent springboards to e-Discovery resources online.

e-DISCOVERY posts will become a regular feature of The Complex Litigator.  Look for more on this rapidly changing subject soon.

[Via Robert Ambrogi's LawSites]  Aside:  Lawsites is a great way to learn about the evolving online legal community.

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