Mistakes Happen

Shepherd Data Services, Inc.

Mistakes Happen

Chris Chalstrom August 18, 2016

Sh e ep Herd Data Services, Inc.

Mistakes Happen

Shepherd Data Services, Inc.

Chris Chalstrom August 18, 2016

“An expert…has made [and/or heard] all the

mistakes which can be made in a narrow field.“

- Niels Bohr

Knowing About Mistakes

Situation and Not Intention

“The opportunity for mistakes, oversight, or simple carelessness comes from

imperfect technology and

the fallible nature of people who just can't guarantee 100 percent focus and attention

to massive quantities of information.”

http://technology.findlaw.com/electronic-discovery/did-we-really-send-that-file-to-opposing-counsel-.html#sthash.x9ix9DZE.dpuf

Situation and Not Intention

Situation and Not Intention

• Not understanding underlying data architecture.

• Relying exclusively upon client representations.

• Outside counsel talking with only legal department (where’s IT?)

Situation and Not Intention

• Missing sources of data

• Not using 26(f) conferences to define and narrow scope of discovery

• Over collection of data

Situation and Not Intention

• Failing to preserve

• Inconsistent manner of collection

• Not tracking collections

• Allowing unmonitored self- collection

• Over collection of data

Situation and Not Intention

• Wrong keywords or improper use of “wildcard*”

• Searching a custodian’s email with their name as a keyword

• Complex search strings

• Using CAR when not helpful (Xcel, numbers, data size)

• Not reviewing metadata

• Creating elaborate culling and searching systems

• Wrong keywords or improper use of “wildcard*”

• Searching a custodian’s email with their name as a keyword

• Complex search strings

• Using CAR when not helpful (Xcel, numbers, data size)

• Not reviewing metadata

• Creating elaborate culling and searching systems

Situation and Not Intention

• Ineffective redactions

• Extra or orphaned files

• Wrong starting number

• Missing confidentiality

• Wrong production specifications

• Load file poorly constructed

• Producing (or not) metadata

• Producing ad hoc outside of the database, and not keeping a single repository of all production documents

• Review team changing coding after production processing is started

• Not building in enough time for processing production before production deadline

• Inappropriate production media (e.g., trying to FTP a 30GB production on the eve of a

production deadline)

• If you are still reading this list, I’m impressed.

• Jen, Ben and Laura at Shepherd actually had quite a bit more I could have added to this.

• Frankly, I felt I was doing a Post Traumatic Stress therapy session when we had a meeting about this very presentation.

• Ineffective redactions

• Extra or orphaned files

• Wrong starting number

• Missing confidentiality

• Wrong production specifications

• Load file poorly constructed

• Producing (or not) metadata

• Producing ad hoc outside of the database, and not keeping a single repository of all production documents

• Review team changing coding after production processing is started

• Not building in enough time for processing production before production deadline

• Inappropriate production media (e.g., trying to FTP a 30GB production on the eve of a

production deadline)

Situation and Not Intention

Situation and Not Intention

16

Whoops - Without a 502 Clawback Agreement

Immediately notify counsel of the claim of privilege and the basis for it.

Fed. R. Civ. Proc. 26(b)(5)(B)

To achieve clawback under 502(b), be able to prove:

Inadvertent disclosure;

counsel took reasonable steps to prevent disclosure; and

counsel provided a prompt and reasonable solution to correct the error.

Upon receipt of a 26(b)(5)(B) notice, counsel must:

Not use or disclose the information; and

return, sequester or destroy the information pending resolution.

If challenging the claim, counsel must submit the information to the court under seal.

18

Whoops

Pick v.

City of Remsen

Pick v. City of Remsen, 2014 U.S. Dist. LEXIS 128411 (N.D. Iowa Sept. 15, 2014) 19

Ut-oh

20

I can’t believe I sent that

21

I can’t believe I sent that

Court Considered Five Factors:

1. The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,

2. The number of inadvertent disclosures, 3. The extent of the disclosures,

4. The promptness of measures taken to rectify the disclosure, and

5. Whether the overriding interest of justice would be served by relieving the party of its error.

22

I can’t believe I sent that

J-M Manufacturing Company, Inc.

v.

McDermott Will & Emery

23 J-M Manufacturing Company, Inc. v. McDermott Will & Emery, California Supreme Court,

Los Angeles County, Central District, Case No.: BC 462832

@#$!@^@$%&#%!!!!

A process need not be foolproof for it to be reasonable, especially given the demands and volume of modern-day discovery.

Mistakes are to be expected when it comes to large discovery projects, perhaps in the era of e-discovery.

Even a single entity’s history of mistakes, in such a context, does not necessarily mean that the continued use of that entity to perform a

complicated task is unreasonable.

However, the analysis is potentially somewhat different when the same entity makes the same mistakes with respect to the

same collection of documents and/or process.

24

Why can’t we do this right?

Goal: Reduce Burdens with Objections & Productions

Inspection or Copies

Clear Indication of Withheld Documents

Rule 34

Goal: Reduce Burdens with Objections & Productions

Inspection or Copies

Clear Indication of Withheld Documents

Rule 34

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

• Has there been a good faith attempt to correct the error prior to making motion?

• Yes, and court grants motion OR prior to motion hearing, party provides information, then

motion’s expenses plus attorney fees unless:

• no good faith negotiations;

• substantial justification for lack of response; or

• other circumstances

Rule 37

What Happens if You Fail to Disclose?

Rosehoff, Ltd. v. Truscott Terrace Holdings LLC Attorney Fails to Disclose eMail Server

Uncooperative Discovery = Rule 37 Sanctions

Rosehoff, Ltd. v. Truscott Terrace Holdings LLC, 2016 BL 148560, W.D.N.Y., No. 14CV277S(F), 5/10/16

Rule 37

Cooperative Planning

“[D]iscussion [under the Rules] can and should include

cooperative planning,

rather than unilateral decision-making, about matters such as:

• the sources of information to be preserved or searched;

• number and identities of custodians whose data will be preserved or collected;

• topics for discovery; [and]

• search terms and methodologies to be employed to identify responsive data”

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) (citations removed and emphasis added)

Cooperative Planning

When that occurs, each party is able to exert some measure of control over the e-discovery process, and, in turn, to have some measure of confidence in its results.

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) (citations removed and emphasis added)

Cooperative Planning

Cooperative Planning

Failure to follow agreed upon discovery plan incurs sanctions.

Future discovery failures may lead to dismissal.

Applied Underwriters, Inc. v. Am. Employer Grp., No. 3:14cv379PLRCCS,

2016 BL 139021 (E.D. Tenn. May 02, 2016) ³³

Cooperative Planning

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Rule 37(e)

http://www.indiciumlaw.com/#!mandel-37e-flow-chart/alntz

35

Rule 37(e) Applying the Standard

“Troubling Behavior” Not Enough

OrchestrateHR v. Trombetta, 13-CV2110P (N.D. Tex. Apr. 18, 2016) Employee Deleted Emails Prior to Leaving

Court Found Not Enough Bad Faith for Sanctions

Living Color Enters. v. New Era Aquaculture Ltd., 14-CV-62216 (S.D. Fla. March 22, 2016)

Rule 37 Case Law

“Shiftless Behavior” Invokes 37(e)(2) Sanctions

O'Berry v. Turner, 15-CV00064HL (M.D. Georgia April 27, 2016) Involves a Lost Single Piece of Paper Printed from PeopleNet

“[I]t is simply irresponsible to print a single paper copy of information”

Adverse Jury Instruction under 37(e)(2)(B)

Rule 37 Case Law

“Lackadaisical Attitude” Caused Spoilation

Mathew Enter. v. Chrysler Grp. LLC, 13-cv-04236-BLF (N.D. Cal. May 23, 2016)

Switched email systems and continued to delete emails

Judge awarded attorney fees for the spoilation motion and Defendant allowed to use the fact of deleted emails to rebut Plaintiff’s evidence

StevensCreekChrysler\mail

Rule 37 Case Law

Lightening Strike and Power Surge Destroyed Evidence

InternMatch v. Nxtbigthing, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016)

Court found defendants violated duty to preserve

Granted request for adverse inference instruction sanction

“[D]efendants consciously disregarded their obligations to preserve relevant evidence.”

Rule 37 Case Law

Cover Ups

Photo Sources

http://www.beowolftech.com/posterizeyourself/

http://aphotoeditor.com/2009/01/27/the-obama-hope-poster-shepard-fairey-and-photographer-mannie-garcia/

http://www.dailykos.com/story/2009/2/5/693669/-

https://commons.wikimedia.org/wiki/File:Donald_Trump_August_19,_2015_(cropped).jpg

Advise clients not to hide, alter or destroy evidence.

“A wise family law attorney once said,

’My clients are wonderful people who are all temporarily insane.’”

Todd C. Scott, http://c.ymcdn.com/sites/www.iadtc.org/resource/resmgr/Seminar_PDFs/2016_Spring_Symposium_Materi.pdf

Avoiding Mistakes

Quality Control Measures

 Verify production specifications

 Use near-dups and email threading to group docs

 Maintain decision logs

 Have a process to check all productions prior to sending

 Require attorneys/paralegals to approve

 Test load all productions

Avoiding Mistakes

Avoiding Mistakes

Project Management System

Responding

Responding

Who else should be notified?

Client

Insurance Carrier Consumers (PI, PHI) FBI, IRS, Secret Service

Media

Responding

He who never made a mistake, never made a discovery.

Samuel Smiles

Closing Thought

never made an eDiscovery production.

Shepherd Data Services

Closing Thought

never made an eDiscovery production.

Shepherd Data Services

He who never made a mistake,

Closing Thought

never made an eDiscovery production.

Shepherd Data Services

He who never made a mistake,

Shepherd Data Services

Computer Forensics and eDiscovery www.shepherddata.com

Chris Chalstrom

[email protected] 612-659-1234

Copyright © 2016 Shepherd Data Services

No part of this presentation may be used without the express written consent of Shepherd Data Services