Robert Pirsig spent a good deal of time on his motorcycle in the 1970s contemplating the metaphysics of quality. In my own way, I’ve been on a similar quixotic mission for at least the past eight years — in search of “quality” in the e-discovery search space. This particular quest for the Holy Grail has involved seeking out the perfect search where one finds “just” highly relevant documents in response to a FRCP 34 document request,  or, as a matter of early case assessment, “just” the hot documents one needs to win the case. I’ve searched the world over for answers, and along the way decided that I had been asking the wrong question.
At one time, I thought I knew what the problem was, and what the information retrieval “task” should be to overcome the problem. The problem, I thought, was simply the naïve use of keywords. Or at least, the way lawyers naively think about keywords when going about the task of searching for electronic evidence. I think many lawyers still practice with the assumption that using simple keywords, without more, to find responsive ESI is sufficient to get them through the day in dealing with their e-discovery obligations. While this remains a problem, it is not in my view the problem. And the task is not simply to try to “beat Boolean” with other search methods.

e-Discovery Team - In Search of Quality: Is It Time for E-Discovery Search Process Quality Standards?

Such costs can start to accrue even before a complaint is filed; and, depending on the types of systems and data involved, the costs of preservation can mount quite quickly. This is particularly true for types of ESI that are not normally subject to long-term retention and that are not easy to preserve in a manner that will withstand attack from a knowledgeable adversary.”

New York Law Journal – Preservation: E-Discovery’s Oft-Overlooked Price Driver

Leor Exploration & Production LLC v. Aguiar is the name here given to a group of interrelated commercial litigation cases arising out of a multi-billion dollar oil and gas discovery. There were multiple claims and counter-claims, including fraud, breach of contract, and negligence. It also involved a bitter family rivalry. When Judges O’Sullivan and Seitz were shown clear and convincing evidence of what the individual defendant had done, they responded as they needed to do to protect the American legal system. They threw out his claims. Assuming this sanction order is upheld on appeal to the Eleventh Circuit, it will stand as the largest e-discovery sanction case in history.”

E-Discovery Team – ”Win-At-All-Costs” Litigation Using Illegal e-Discovery Leads to Dismissal of a Billion Dollar Case

The e-discovery realm is rife with cautionary tales of organizations tripped up by backup tapes. For instance, in 2009 a judge fined a defendant more than $1 million for failing to retrieve information stored on backup tapes. In the same year, the government’s Office of Federal Housing Enterprise Oversight was compelled by a court to search its off-site disaster recovery backups for ESI, a search that ended up costing the agency $6 million–a jaw-dropping amount for a single discovery exercise. What’s even scarier is that the agency wasn’t even a party in the lawsuit; it had simply been subpoenaed for documents in litigation involving Fannie Mae.

This article examines the challenges that backup tapes pose. It also discusses strategies organizations can use to reduce the number of tapes that get stockpiled, and it outlines technologies and services that help reduce the cost and time it takes to retrieve ESI from tape.”

Information Week – E-Discovery: How To Avoid Death By Backup

The Magistrate, in addressing the defendant’s sanctions motion, described the issues presented by that motion as:

‘[T]he perfect storm of problems that can arise from voluminous electronic discovery in high stakes litigation. As with the storm of any magnitude – and this one might qualify as a Category 5 from the National Hurricane Center – the damage can be severe. Such is the case in the wake of this maelstrom.’

The defendant claimed in its motion for sanctions that the case was an ‘ediscovery version of Watergate,’ with the plaintiff acting as ‘the henchman who broke into the password-protected documents’ and his counsel engaging in the ‘cover-up.’ The district court, however, was not persuaded. While a relatively modest monetary sanction was imposed upon the plaintiff, the district court ultimately vacated the Magistrate’s recommended monetary sanction on plaintiff’s former counsel. Even when the defendant’s hyperbole is ignored, Lawson presents a number of knotty ethical issues that practitioners must be ready to recognize and properly address.”

Practical e-Discovery – A Primer on e-Discovery ethics

”Many courts have imposed monetary sanctions against outside counsel of record for their negligence in working with their clients to preserve evidence. See eg., Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) (discussed before in Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation). But this decision goes a step further and reaches behind the curtain to impose sanctions against in-house counsel. This was not your typical in-house counsel situation either. It was not a remote in-house attorney representing a large corporation. The attorney sanctioned was the general counsel for a local governmental entity, the Seminole County Sheriff’s Department.

This District Court opinion has not been published yet, but I expect it will be soon. It is, as far as I know, the first in the country to impose a monetary sanction against an in-house counsel who was not an attorney of record and was not a named party. The amount of the sanction has not yet been determined by the District Court judge who entered the order, but it will be substantial. The plaintiff incurred costs and attorney fees in excess of $300,000 to bring and prove the sanctions motion.”

Read more – e-Discovery Team: In-House Counsel Sanctioned for Defendant’s Failure to Preserve Evidence

”The Arizona state Supreme Court has ruled that the metadata attached to public records is itself public, and cannot be withheld in response to a public records request. Such a ruling on file metadata may not seem like a huge win for open government advocates, but it definitely is, given that metadata has unmasked more than one lobbyist’s effort to influence Congress.”

ARS Technica – Lobbyists beware: judge rules metadata is public record

In a case management hearing, the parties were directed to consider the following electronically stored information (ESI) issues at their Rule 26(f) conference for drafting their proposed Rule 16(b) order:

With regard to any discoverable electronically stored information (ESI) the parties may have, the Court further requests that the joint discovery plan also include any issues and concerns related to the following:

a. What ESI is available and where it resides;

b. Ease/difficulty and cost of producing information;

c. Schedule and format of production;

d. Preservation of information; and

e. Agreements about privilege or work-product protection.

Wallace v. Tindall, 2009 U.S. Dist. LEXIS 89669, *2-3 (W.D. Mo. Sept. 29, 2009).

Bow Tie Law’s Blog – Things to Think About for Your Rule 26(f) Meeting…