Wednesday, June 11, 2008

2008-06-11 Evidence Eliminator used to er, Scramble Files

The Wall Street Journal reports today that the designer of the Bratz doll line of children's toys used Evidence Eliminator to "rename" (scramble is term used by the WSJ reporter) files on a hard drive set to be copied for production to Mattel's counsel. It will be interesting to see whether, and how, a spoliation motion is argued.

Monday, June 09, 2008

2008-06-09 No Ask, No Get - With a Twist

In a May 29, 2008 decision in Perfect Barrier LLC v Woodsmart Solutions, Inc. the Court provides a reminder as well as a twist on what is fast becoming "native format" wars. First, the Court notes that it is the obligation of the requesting party pursuant to Fed. R. Civ P. 34(a) and (b) to specify with particularity the format and manner of ESI. (For those of you just tuning in, ESI is short for "electronically stored information" as set forth in the 2006 amendments to the Federal Rules of Civil Procedure). It cannot be stressed often enough that a failure to do so waives the right to so specify, and permits the producing party to produce what it likes, so long as it may be considered reasonably usable. That determination will, and in this case was, made by the Court. What is interesting about this decision is that the requesting party chose not to request "native format data," and upon having received NFD, instead asked for "static images."

Rule 34 is being increasingly interpreted to mean one chance to request format of production. Unlike baseball, with three strikes, and unlike softball, with two strikes, courts will give a requesting party one chance to articulate what they want, and how they want it produced.

Relevant excerpt:

"Perfect Barrier did not request that the emails be produced in a particular form, yet Perfect Barrier now asks this Court to force Woodsmart to produce the electronic emails as Static Images with a bates-number identifier. Woodsmart objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images."

"Woodsmart has already produced the emails on a disc in Native format. Woodsmart maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires Woodsmart to submit the emails in the format in which it keeps them, Native format , and nothing more. While it may be more convenient for Perfect Barrier to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If Perfect Barrier wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do." Perfect Barrier LLC v. Woodsmart Solutions Inc. 2008 WL 2230192, 3 (N.D.Ind.,2008)

Tuesday, June 03, 2008

2008-06-03 Search Protocol Sufficiency Challenges Recognized; Testability Required

In a May 29, 2008 opinion in Victor Stanley, Inc. v. Creative Pipe, Inc. 2008 WL 2221841, 3 (D.Md. 2008) Judge Grimm acknowledges that challenges to eDiscovery protocol adequacy may be made by a party. Of course, it does help know how to challenge, which in turn speaks to counsel core competency (assisted by expert testimony) in making the assertion.

Nevertheless, Judge Grimm sums it up in one sentence in noting that "all keyword searches are not created equal" and acknowledges that a test of any assertion of adequacy must be made.

Excerpt from the decision:

"First, the Defendants are regrettably vague in their description of the seventy keywords used for the text-searchable ESI privilege review, how they were developed, how the search was conducted, and what quality controls were employed to assess their reliability and accuracy. While it is known that M. Pappas (a party) and Mohr and Schmid (attorneys) selected the keywords, nothing is known from the affidavits provided to the court regarding their qualifications for designing a search and information retrieval strategy that could be expected to produce an effective and reliable privilege review. As will be discussed, while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review. Additionally, the Defendants do not assert that any sampling was done of the text searchable ESI files that were determined not to contain privileged information on the basis of the keyword search to see if the search results were reliable. Common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive. There is no evidence on the record that the Defendants did so in this case. Rather, it appears from the information that they provided to the court that they simply turned over to the Plaintiff all the text-searchable ESI files that were identified by the keyword search Turner performed as non-privileged, as well as the non-text searchable files that Monkman and M. Pappas' limited title page search determined not to be privileged."

Monday, June 02, 2008

2008-06-02 Think You've Redacted? Really? Think Again

The Register (the U.K. netzine) reports in an article appearing today that it appears that Google unwittingly reprised the "pay no attention to the man behind the curtain" line from the Wizard of Oz. The Reg. reports that a 38 page .pdf posted in opposition to a plan by eBay Australia to force customers to use PayPal as sole payment vehicle became the object of intense scrutiny. This post, one of hundreds voicing opposition sent to the Australian Competition Commission and Consumer Commission (methinks the Aussie equivalent to our FTC) , was apparently the only one accorded anonymity by the ACCC. 38 pages of anonymity. First flag. The ACCC (and the apparent author's) anonymizing attempt fell somewhat short of complete success (as if anonymity could be "partial") because hidden among the metadata in that file (and revealed by reading the pdf in a text editor) was a line stating: "Microsoft Word - 204481916_1_ACCC Submission by Google re eBay Public_2_.DOC."

As with all ephemeral data posted on the 'net, the revealing .pdf was reported pulled off-line, and later replaced with a more sanitized version.

In behavior we are seeing more often, someone was smart enough to download the original post, and post it for ad eternam (well, maybe for a month or so).

Query: If this .pdf turned out to be potential evidence, it would certainly raise authentication issues --- Well, just because the .pdf indicates Google as the author, how (without some very interesting requests for documents, admissions, and depositions) might a foundation be laid that the author was, in fact, the Big (now stylized little) "G"?

The article:

Link to the original .pdf: