19 November 2009

Reporting for The Posse List:  Gregory Bufithis, Scott Madsen and Alex Hania

Last week Georgetown Law CLE, in cooperation with the Sedona Conference, presented its 6th Annual Advanced E-Discovery Institute.  It was one of the best conferences we’ve attended on e-discovery and that is based on the content covered, the experts/luminaries in the e-discovery field that spoke at the panels, and the interaction between the audience and the panels plus the informal sessions.  Moreover, the Institute had an all-star U.S. judicial bench in attendance:  Magistrate Judge John Facciola, Magistrate Judge Paul Grimm, District Court Judge Nan Nolan, Magistrate Judge Andrew Peck, District Court Judge Lee Rosenthal, District Court Judge Shira Scheindlin and Magistrate Judge David Waxe, who participated on multiple panels, and even sat in on many of the sessions and provided input — both from the panels and the audience — and who made themselves available during the breaks and informal sessions.  It was a great “hands on learning” e-discovery experience.

The non-judicial roster of e-discovery experts was just as impressive and rather than list them all we have provided a link to the full list (click here).

The Keynote Address

Judge Lee Rosenthal gave the keynote titled Is the E-discovery Process Broken, and, If So, Can It be Fixed?

Judge Rosenthal was appointed a United States District Court Judge for the Southern District of Texas, Houston Division in 1992.   She was appointed chair of the Civil Rules Committee in 2003 and served during the “restyling” of the Civil Rules and the adoption of the electronic discovery amendments. In 2007, Chief Justice Roberts appointed Judge Rosenthal to chair the Judicial Conference Committee on the Rules of Practice and Procedure, which coordinates the work of the Advisory Committees for the Civil, Criminal, Evidence, Appellate, and Bankruptcy Rules.

She spent a good part of her speech on the results of a Federal Judicial Center report which surveyed federal cases that terminated at the end of 2008.  The big surprise:  the costs of civil litigation are not escalating out of control due to the mounting burden of e-discovery.  You can access the full report by clicking here.

According to the report, over 70% of the attorneys in cases involving e-discovery reported having no problems with discovery.  Disputes over e-discovery occurred in less than 2% of those cases (a fact repeated several times by the judges attending the conference) and almost all involved disputes about the form of production.

Other points Judge Rosenthal raised:

– cases that involve electronically stored information (ESI) were  more expensive than cases without ESI

– most cases settled with only about 1% coming to trial

– in settled cases, 60-70% of the attorneys said the cost of e-discovery had no bearing on the settlement

As Dennis Kiker of Fios, Inc. said in his blog post (click here) the general trend of the responses is in surprising contrast to the results of the joint report of the American College of Trial Lawyers Task Force on Discovery (ACLS)and the Institute for the Advancement of the American Legal System (IALAS) which reported that 71% of attorney surveyed believed that discovery was used as a tool to force settlements.  Dennis offers a  number of factors that might explain the discrepancy.

Some of the other points raised by Judge Rosenthal:

–  a litigation survey showed only 5% of the parties had used data sampling

– sixty percent of corporations did not have any litigation holds, which can be dangerous

- - two important cases to read on e-discovery are Twomley (the adequacy of pleadings) and Iqbal (the “facial plausibility” pleading sufficiency test applies to all federal civil actions)

– there has been a lack of success of District Court Judges to control discovery (TPL thought: the magistrates intimidate them)

– proportionality is in the national debate and an adequate set of controls need to be applied to achieve proportionality.  This was the mantra repeated throughout the 2-days of the conference

– The Sedona Conference Proclamation of Co-operation is a good starting point for collaborative e-discovery

– Effective e-discovery should include a reasonable cost component.  The ACLS and IALAS report (cited above with link) discusses 29 principles to promote effective e-discovery including early identification of issues and better control to contain costs, fact based pleading, narrow requests for production, more early discussion and more judge involvement

–  Rule 16 helps expedite discovery and contains items for courts to narrow litigation including active judicial management.  Rule 16 and 26(f) are notably underused.

Potential fixes for the system:  there are several pilot programs currently being conducted, notably one in the 7th circuit with the goal of incentivizing early discussion and e-discovery being resolved as an example of Rule 26(f) information sharing and co-operation.

And the big take-away from the Judge’s presentation:  the judges are in a good position to take a long look at e-discovery at the May 2010 Annual Meeting and Judicial Conference at Duke University where the FRCP Rules committee will revisit, among other things, judicial involvement and settlement issues.

The Sessons/Panels

There were 18 sessions/panels and we could not cover them all.  We tried to focus on those most relevant to our readership, as diverse as it is.  Click on the title to go to each summary:

The E-Discovery Case Law Update

Unified communications – the game changer in e-discovery

Advanced Search and Retrieval Technology

How E-Discovery “Fits” into Civil Litigations

E-Discovery in Federal Investigations

Cross-border E-Discovery & International Data

Concluding Judicial Roundtable on ESI Discovery Problems, Solutions

Future Georgetown Law CLE Programs

Through our new affiliation with Georgetown Law we will be proving details in the near future on Georgetown Law Center’s E-Discovery Training Academy program in March 2010.  The Academy is rather unique in that it offers a comprehensive practical training of attorneys, practice support professionals and technical specialists in the entire spectrum of legal strategies and technological services that constitute the full practice of e-discovery.  The Academy is the only program of its kind affiliated with a major law school and has gained national prominence following the success of its inaugural course of study in February, 2009.

We will also have information on Georgetown Law CLE’s 14^th Annual Corporate Counsel Institute (also to be held in March 2010) developed in cooperation with the Association of Corporate Counsel (ACC) which focuses on practical, relevant and comprehensive topics.  This program will be repeated in London in April as Corporate Counsel Institute – Europe.

Please provide any comments or feedback via the “Comment” box below, or email us at manager@theposselist.com

15 November 2009

In June 2009 the Sedona Conference held it’s program Cross-Border eDiscovery and Data Privacy.  The Posse List was there and covered the event (click here).

The Georgetown panel was composed of several Sedona participants: James Daley, Kenneth Rashbaum, Lisa Sotto, Alexander Blumrosen and Christian Zeunert.

The technology and cultural challenges posed by cross-border discovery conflicts are many.  The challenge can be summarized as follows: with the globalization of business and the resultant flow of data across country borders, data sought in litigation, particularly litigation involving multinational corporations, increasingly includes personal information relating to employees, customers and/or clients that is located in foreign countries. A significant amount of that data is in the form of e-mails, which are recognized as personal data in most of the world other than the United States.

The dilemma confronted by corporate counsel involved in such litigation is whether to disclose personal information located in foreign countries with laws severely restrict the processing and transfer of personal data and risk being punished there with civil and/or criminal penalties; or to filter out the personal data and risk being sanctioned in the U.S. for incomplete responses to e-discovery requests.

U.S. courts have generally rejected the interests of countries with strict data privacy laws in shielding data located in their countries from discovery in U.S. proceedings.  Sanctions for failure to comply with a U.S. discovery order can be significant—including large monetary sanctions, witness preclusion and even dismissal.  Similarly, countries hosting personal data that is the subject of litigation in the United States have rejected the interests of the United States in obtaining such personal data as part of its broad discovery process.

This challenge is complicated by linguistic differences as to the scope of certain key terms, such as “personal data”,  “processing”, etc.:

1. In the United States, the category of “personal data” protected from processing would ordinarily be limited to something very unique to a person with a high degree of sensitivity, such as social security numbers or medical records. The EU protects all types of personal data from processing, including emails identifying authors or recipients.

2.  In the United States, the concept of data processing implies a formal, large scale handling and labeling of data. The European Union, however, considers virtually every action relative to personal data to be “processing” of that data, including archiving, searching, and particularly collecting, reviewing and producing such data.

3.  In the United States and other common law countries, documents and data are discoverable if they are reasonably calculated to lead to the discovery of admissible evidence. Parties can be severely sanctioned for failing to preserve or produce relevant materials.

4.  Unlike common law pretrial practice, many civil law jurisdictions prohibit disclosure of evidence beyond what is needed for the scope of trial. In these civil code countries (which vastly outnumber common law countries), discovery is very limited. Privacy laws prohibit the processing of personal data, and individuals or organizations can be penalized for such action.

5.  When seeking to resolve discovery disputes, generally, the law of the country where the “data controller” is established will apply to the question of whether the relevant personal data can be legitimately “processed.” It is possible that within one company, many sets of laws will apply to data residing in different countries.

6.  While data protection regulations differ broadly across the globe, the EU Directive provides somewhat of a model as to the kind of processing and transfer restrictions that are included in most of these regulations. As such, it is a useful example to use in evaluation of common privacy principles underlying these regulations. The European Union Data Protection Directive was published on October 24, 1995. The starting premise under the EU Data Protection Directive is that data transfers are prohibited unless the receiving country provides adequate protection. As a rule of thumb, data transfer is permitted between Member States and prohibited outside of Member States. Each Member State has implemented the data protection directive in different ways—some have given additional layers of protection to personal data.

7.  In addition to the EU Data Protection Directive, several countries have enacted Blocking Statutes. These statutes prohibit the transfer of different types of information across country borders, and were enacted with the goal of protecting sovereignty and commercial interests from interference by foreign states. Violation can result in civil or criminal penalties. For example, in 2008, in a case known as In re Christopher X, the French Supreme Court in publicized the conviction of a French attorney for violating the French blocking statute. The French blocking statute is quite broad, and prohibits the gathering of information of any kind in France if it relates to a foreign judicial or administrative proceeding. In this case, the French attorney had been retained by a U.S. law firm to interview a potential witness in Paris in relation to a case filed in United States federal court. The French attorney was reported to the French authorities, and was ultimately convicted of the French Penal Statute, resulting in a substantial fine.

15 November 2009

When it comes to the flow of litigation information, law firms and clients often feel trapped in a cyclone of data that supersedes substantive issues of a case, both in cost and attention from the court.   Ron Hedges  led the panel and discussed the “flow of litigation” and how active case management (by judges and attorneys) is the key to controlling cost and delay that can result from discovery of electronically stored information (ESI), making reference to motions to dismiss in lieu of answers and reasons to seek stays of discovery rather than beginning the discovery process.

They also discussed the effect of the new pleading standards expounded by the Supreme Court in Twombly and Iqbal, and said that even under those cases, parties will likely continue to incur at least some preservation and collection-related costs before any discovery begins.

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),  and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court made clear that to state a claim for relief in any civil action the ”threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’’  Moreover, ‘‘only a complaint that states a plausible claim for relief survives a motion to dismiss.’’  

Those decisions (and those of the lower courts interpreting Twombly and Iqbal are likely to lead to the filing of more expansive and fact-sensitive complaints in the US District Courts and more dispositive motion practice pursuant to Rule 12(b).   It is important to consider one important facet of both decisions: management of discovery and the possibility of cost control through that management is not a substitute for a pleading that cannot survive a motion to dismiss.   That being said, what costs related to ESI should be expected to be incurred even if a Rule 12(b) motion and a stay of discovery are imposed?

First, of course, there is the cost of preservation.  The common law duty to preserve relevant information (whether ESI or ‘‘paper’’) arises when litigation is reasonably foreseeable. That duty plainly encompasses information ‘‘relevant to any party’s claim or defense’’; it may also extend to information ‘‘relevant to the subject matter involved in the action.’’

Does that duty further extend to ESI that might be ‘‘not reasonably accessible’’ within the meaning of Rule 26(b)(2)(B)? Can the scope of the duty to preserve information be expanded by receipt of a demand letter from an adversary?   The panel discussed these questions but did not offer definitive ansers, but raised them to note that ESI and other information must be identified, preserved, and sometimes collected once a litigation hold is ‘‘triggered,’’ regardless of whether the complaint appears likely to survive a motion to dismiss.

 15 November 2009

The presentation was made by David Shonka (Principal Deputy General Counsel of the Federal Trade Commission), Miriam Smolen (associate general counsel in Fannie Mae’s litigation department, and in this role she manages complex commercial litigations and government investigations) and moderated by Andrew Goldsmith (First Assistant Chief in the Department of Justice).

David Shonka on the Government’s Civil Investigative Arsenal

Under the Federal Rules of Civil Procedure litigants in federal district court civil cases may use a broad assortment of tools for discovering information held by their opponents and by third parties; and courts have may apply a broad range of sanctions to compel, or at least encourage, cooperation.

In contrast, the Federal Rules do not apply when the government seeks information in a pre-complaint investigation and to secure information the government must depend on statutory grants of authority. Absent voluntary cooperation or statutory authority, the government is powerless to collect information before filing any legal action.

The Federal Trade Commission, which has a rather full range of information-gathering resources at its disposal, is a good example of both the breadth and limits of the government’s ability to discover information in a pre-complaint investigation. At one end of the spectrum, the agency’s statutes allow it to — and in practice the agency does — encourage voluntary cooperation in its investigations by issuing access letters which are unenforceable requests for information.  The Federal Trade Commission Act further encourages voluntary cooperation by assuring persons that the agency will provide information given “in place of compulsory process” the same level of confidential treatment that it provides to information it receives through compulsory process.

On the other end of the spectrum, the agency is authorized to issue orders directing  persons to submit “special reports” providing detailed information on their conduct and other matters.  Such orders are judicially enforceable 6 and failure to comply may result in the imposition of civil penalties, which accrue daily. 

In all its investigations, the agency also has the authority to issue civil investigation demands (“CIDs”) that may compel the recipient to provide information through interrogatory-style questions, produce documentary materials, or appear and give testimony at investigational hearings; and in its antitrust investigations, the agency additionally has the power to issue administrative subpoenas to compel the production of documents or the giving of testimony at investigational hearings almost anywhere in the country.

The premerger notification statute (Hart-Scott-Rodino to many of us in the biz) lies somewhere between “voluntary” and “compulsory.” On the one hand, the HSR Act authorizes the antitrust agencies to request detailed information relating to covered transactions. On the other hand, the parties are not required to respond to the requests – although they are forbidden to consummate their transaction unless and until they provide either all the requested information or a detailed statement of reasons why they cannot provide the information.

Failure to comply with the HSR reporting and waiting-period requirement may trigger a court action to enjoin the transaction until there has been compliance an action to rescind the transaction if it has been consummated, or a suit for substantial civil penalties, which accrue daily.

As the FTC’s example shows, by and large the government has the tools it needs to conduct its pre-complaint law enforcement investigations and it has had those tools for some time.

Access letters and subpoenas have been in the FTC’s tool box since the very beginning. It gained its CID authority in consumer protection cases in 1980 and in competition cases in 1994; and the HSR Act has been in effect since 1978. While the FTC’s investigative tools have remained constant since 1994, FTC antitrust investigations have grown in size and complexity.

In the mid-1990s, very few cases involved document productions exceeding one million pages and significant major merger investigations might have resulted in the production of a couple hundred boxes of documents. Today, FTC merger investigations may yield terabytes of information.

While some may argue that these numbers evince the growth of intrusive government regulation, two facts account for the government’s increased demand for information.   First, the public, the courts, and the Congress all (correctly) demand that the government justify its intrusions into private decision making with solid public interest justifications. In matters involving private economic activity this means agencies must base regulatory actions on evidence showing, in one form or another, that the public benefit from regulation is sufficient – or at least probable enough – to offset any private harm that may follow from the regulation.

Second, while the government once may have been able to prove a law violation in merger cases by simply showing an undue increase in four or eight firm concentration ratios, or even that a very large firm was acquiring a very small one, today the government must produce solid economic evidence showing in advance that a merger is actually likely to harm competition if consummated.  This requires sophisticated economic analysis and modeling. This evidentiary burden requires the government to collect substantial amounts of data and information.

One overarching principle underlies most law enforcement investigations. It is this: the government does not know the organizational structure of its target corporations, or their filing systems, or the manner in which electronic information is collected, distributed, analyzed, used, kept, and destroyed.  Its investigators must accordingly shape their requests for documents and information with that principle in mind. Therefore, their instructions on where to search for responsive files and information look something like this:

The corporation includes its domestic and foreign parents, predecessors, divisions, subsidiaries, affiliates, partnerships and joint ventures, and all directors, officers, employees, agents and representatives of the foregoing. The terms “subsidiary”,  “affiliate” and “joint venture” refer to any person in which there is partial (25 percent or more) or total ownership or control between the company and any other person.

Similarly, their instructions for producing computer files tend to look like this:

The term “computer files” includes information stored in, or accessible through, computer or other information retrieval systems. Thus, the company should produce documents that exist in machine-readable form, including documents stored in personal computers, portable computers, workstations, minicomputers, mainframes, servers, backup disks and tapes, archive disks and tapes, and other forms of offline storage, whether on or off company premises. Electronic mail messages should also be provided, even if only available on backup or archive tapes or disks. Computer files shall be printed and produced in hard copy or produced in machine-readable form (provided that Commission representatives determine prior to submission that it would be in a format that allows the agency to use the computer files), together with instructions and all other materials necessary to use or interpret the data.

Or this:

The term “document” means and includes all materials and information, including electronically stored information, discoverable under the Federal Rules of Civil Procedure. 

In short, the target must search every desk, person and file drawer, even in its affiliates’ offices as well as every computer, server, compact or floppy disc, blackberry, phone mail system, and other device that stores or holds electronic information. Unless the recipient of an investigative demand is prepared to face the potential consequences of conducting an inadequate search or of having important evidence obliterated, the recipient should open an immediate dialogue with the investigators.

Such a dialogue would address the following five subjects: (1) the scope of the search, (2) data retrieval issues, including email and phone mail, (3) timing, (4) the retention and disposition of legacy systems, archives, and back up tapes, (5) privilege logs, and (6) materials outside the United States.

Miriam Smolen on responding to government document requests

Your company is the subject of a subpoena or request for documents from a government agency. The company wants to be cooperative, but how does it negotiate search terms with the government?  Company counsel should contact the government investigators early to open discussions about what the expectation is for searching the collections. Typically, subpoenas and/or requests for documents are written in very broad language. The goal of an early conversation is to discover whatever is possible about what activities or events are under investigation, the specific time frames, and relevant custodians. Government investigators may already have a search term list. If they do not, counsel can suggest search terms that will be relevant to the investigation as described.

Investigators should want company counsel to be an active participant in the creation of search terms since counsel is familiar with the company’s documents and relevant personnel. While technology is vital to parsing through vast amounts of material, it can never replace subject matter experts. Computers cannot have the deep understanding of the issues or how documents play a role in the case. Thus, government investigators should, and usually do, want company counsel to suggest and run search terms against relevant custodians that will be responsive to the request for documents and information to help develop a global search term list.

Experienced e-discovery attorneys know that extra time is often needed to revise a search term list in response to tests of those terms and a review of the testing results.  However, more often than not, government investigators are pushing for quick responses.  If the need to be responsive prevents rounds of testing, use a dual prong approach: allocate your review resources to those results that appear to have used properly formulated search terms to begin review, and continue the testing and revision process for the other search terms. This should allow you to begin a rolling production of material sooner, but also allow for further revision.

What about when investigators require the use of thousands of search terms?  Providing statistics to the investigators summarizing the numbers of requests, and the volumes of material the searches have generated may help set expectations. It is not uncommon for a complex financial investigation to generate a government list of 2000 search terms or more that might generate millions of pages with hits. Of those millions, perhaps 20% will be responsive, which means that the company has paid a substantial amount for review of non-responsive material. While investigators may not be as concerned about cost as is the company, they will be concerned about slow productions.

Thus, discussing those numbers with the government may lead to a narrowing of the time frames, custodians or terms, which should reduce volume.

How do various government agencies differ in their approach to requesting and receiving documents?  While experience with responding to one government agency’s request for documents is useful, it does not necessarily help when responding to a different agency’s requests. There is no one common technology or application used by all government investigative agencies, and the level of experience among investigators also varies widely. Although some agencies, such as the Department of Justice, Federal Trade Commission and the SEC have guidelines for production, not all do, and even for those that do the guidelines provide general guidance for facilitating production.

The best advice is to obtain as much information as you can from the investigators, or agency attorneys, about the in-house technology available to them, and also about how they expect production to proceed. As early as possible, present a search plan and sample search results for initial review and discussion with the investigators. This should give you an idea of how they expect you to proceed.

Based on prior experiences, some investigators or agency staff may expect a level of service from outside counsel that extends toward responding to frequent detailed requests for particular documents.

Not all companies may have the resources to extend that level of service, but they do not want to be seen as uncooperative because of that.

Government subpoena or document requests are very broad.  Do they really expect a production of that magnitude?  Law enforcement document requests are extremely broad, both in terms of subject matter and time periods. The expectation is that the company will have a discussion with the investigators to focus on what is really needed. This discussion should continue throughout the production to ensure that the production is satisfactory, and to capture any new requests.

Date ranges are particularly tricky since expansion of date ranges mid-investigation can result in a tremendous amount of new work in terms of collection, new searches and additional review. To the extent possible early on, ensure investigators understand the cost and time involved in the effort generated by lengthening the date ranges; getting an early agreement on set date ranges can dramatically reduce the cost and time of a production.

In addition, as investigators dig deeper into the facts, their theory of the case or the focus of their investigation, may change. Ensuring that the company is producing what is relevant, and not spending the time on what is no longer important, will speed production and reduce cost.

How important is documenting the discussions with investigators and production efforts?  The most important piece of advice is to document every single step that your production team takes.

What if the privilege review process is challenged as too detailed and time-consuming?  It is fair to say that privilege reviews always take too long for government investigators, while for corporations there is never enough time to ensure complete accuracy. There are, however, several responses to this concern. One is to produce a rolling privilege log – the concern here is that later review of other documents may change the privilege decision that was completed earlier. Another approach is to provide the government with detailed information about the review: how many reviewers are assigned to this task, how many documents they can review a day, how long it takes to log or redact privileged material, the level of QC effort. It may also be worthwhile noting where an entry on a privilege log represents a whole “family” of documents and therefore the number of entries does not really reflect the level of effort. Providing such information should not compromise counsel’s review process, and it explains the length of the process in a satisfactory manner.

What about using new technologies for search beyond search terms, such as concept based searching?  As with most things, people do what they are comfortable doing. Many investigative staffs are comfortable with standard ediscovery techniques: search terms, time periods and custodians. However, as agencies become more familiar with newer technologies such as concept based searches there is every reason to believe that those types of searches will be approved as a mode of responding to document requests. Facilitating that change is the fact that the government always has newer attorneys joining from law firms and elsewhere that are more comfortable.

Two recommended articles:

“Investigations and Prosecutions Involving Electronically Stored” by the panel moderator Andrew Goldsmith (click here)

“E-Discovery in the Criminal Context: Considerations for Company Counsel”  (click here)

15 November 2009

The presentation on Advanced Search and Retrieval Technology was made by Jason R. Baron, Maura Grossman and Ralph Losey, all powerhouses in the e-discovery world.

Baron and Losey started off with their multimedia PowerPoint presentation (to the tune of Darude’s Sandstorm which we had just seen at the Capital One Future of Search conference  and it blew away the crowd – and us, too, again.  In a nutshell, ediscovery is expanding exponentially and Ralph Losey talked petabytes, and exabytes — not terabytes. This was the “beta version” of a presentation that Losey and Baron will give at LegalTech in New York City this coming February.  

As an introduction (not necessary for this audience but a great set-up nonetheless) Jason said there are technologies available to help the litigator reduce the costs of reviewing and producing ESI while at the same time accomplish the objective of responding to a request for production.  Most commonly used by litigators today are review tools that enable reviewers to review the ESI in an online repository.  Vendors that provide these review tools also typically offer filtering and processing services, where they take ESI that has been collected, and, behind the scenes, apply filters to the ESI to narrow the volume to the ESI that is likely to be relevant to the request for production.

A popular filter is the application of keywords, developed by the litigator, to the collected ESI. After applying the keywords, the vendor provides a “frequency report” or “hit list” of the number or percentage of documents that hit on a particular keyword so that the litigator can evaluate the efficacy of the selected keywords.  

There may be various iterations of this process until the litigator approves the results in the frequency report.  The vendor then processes the filtered ESI and uploads it to a web-based review tool for the review to begin.

There is also new automated technology called “early case assessment” technology that has entered the marketplace, and which review tool vendors are rushing to add to their current products. This technology allows for a thorough front-end look at the volume of ESI collected in response to the request for production, instead of just the ESI that is filtered, processed and uploaded to the review tool. Thus, by using this new technology, the litigator can find the “significant documents” very early on in the case instead of waiting until the end of the review process after the reviewers have reviewed and “tagged” the significant documents.

Moreover, this technology enables the administrator and/or the litigator to perform keyword searching and other filtering on their own without incurring any additional charges and without having to rely on the vendor for these services. This technology also provides automated analytics so that the litigator can obtain a high level understanding of the ESI, which can identify key players, lines of communications between custodians and types of significant documents. This knowledge will help shape the review and the litigator’s investigation of the facts of the case.

Maura Grossman then followed with what we thought was a brilliant presentation on the challenges of search.  Our review cannot do it justice (we have links below to background material provided by Maura and Jason) so just some high points from her presentation:

1.  There is no way to review everything manually, in large matters, in the time frames dictated by the typical litigation or investigation.

2.  Manual review does not scale well, and how the cost of responsiveness and privilege review can quickly dwarf the costs of all of the other stages of the e-discovery process.

3.  Lawyers are not nearly as talented at search as they think they are.  The Blair and Maron study (in 1985) was the first study to demonstrate the significant gap or disconnect between lawyers’ perceptions of their ability to ferret out relevant documents, and their actual ability to do so.   In a 40,000 document case — consisting of 350,000 pages — the lawyers estimated that their searches had identified 75% of the relevant documents,  when, in fact, they had only identified about 20% of them.

4.  The use of keywords, alone, is unlikely to reliably produce all relevant documents from a large, heterogeneous document collection, for a whole host of reasons, including:

     a.  That information retrieval is already a very difficult problem when it involves plain vanilla, English-language, text documents. That problem is magnified when you address a multi-lingual set of documents, with nontextual forms of ESI, such as photographs or audio and video files, which are typically not searchable.

      b.  The inherent ambiguity of language, in particular:

            Synonymy = there can be considerable variation in describing the same person or thing, i.e., diplomat, ambassador, consul, official, etc.

           Polysemy = the same term can have multiple meanings, i.e., Bush (referring to two presidents; a shrub; a place in Africa; a thick furry tail; “bush league,” among other slang usages). Strike (referring to a labor activity; the act of hitting; the baseball kind; finding oil or gold and “striking it rich;” and so on).

       c.  The ubiquity of human error, i.e., misspellings and typos (there were 250 different spellings for the word “tobacco” in the MSA database; “management” will miss managment” and “mangement”).

       d.  Abbreviations (i.e., “P&C/ACC”); colloquialisms (i.e., Haynes & Boone / H&B / HayBoo); slang; code words; and new short-forms used in text messaging and IM (i.e., “FWIW”, “LMAO”).

      e.   The problem is compounded by optical character recognition (“OCR”).

      f.  Poor records management, including lack of organization and/or proper labeling, the reflexive use of “Reply” even when the subject matter of an email has changed, and so on.

      g.  Deadlines and resource constraints that place practical limits on what can be achieved.

       h.  And finally, there is a widespread failure to employ “best practices” in the area of search and retrieval. Lawyers believe that because they know how to use Westlaw, Lexis, and Google, they know how to do search, but finding a few good examples of something is a very different task than finding as close to all of that thing as possible, without also including a lot of junk.

So, what are the “best practices” for keyword searching?

1.  You start with the complaint, the subpoena, or the request for production. First  you determine: who are the relevant custodians?  what is the applicable time frame?  what terms-of-art are employed?  

2.  Then, you translate what the request is seeking into plain, everyday English to get as close as possible to the terms that people are most likely to use in their daily communications.

3. Try to have a couple of different people do this to ensure that you are getting the benefit of multiple interpretations of the requests and potential keywords from different vantage points.

4.  This is the basic starting point for your search-term list.

5.  Next—and this is the step that is most often overlooked by lawyers—you must seek input from the people who actually created, sent, or received the documents.  These are your best subject-matter experts.

6.  Ask them questions like:  “Who would be most likely to have created, sent, or received emails or documents on these subjects?”  “What distribution lists would have been used?”  “What time frame would these emails or documents cover?”   “What events would these emails or documents discuss?”   “What names, words, or terms would be likely to appear in these emails or documents?”  “What abbreviations, acronyms, slang, or code words might have been used?”   “If you were looking for emails or documents responsive to these requests,  how would you go about finding them?”  “What kinds of attachments would these emails have?”

7. If warranted by the stakes of your matter, consider whether an hour or two of a linguist’s or substantive expert’s time would help you to significantly improve the quality of your search term list.

8. Next, look at a bunch of documents that you already know to be responsive (for example, some that you obtain from a key custodian).  Ask yourself, what unique words or phrases distinguish these documents? In what context do the documents appear? (If you are using a search tool that employs machine learning, these documents can be the start of your “seed” or training set.)

9. If possible, have your vendor index the documents in the set and provide you with a list of the words that appear in the documents, ranked from most to least frequently appearing. Use that list to identify documents that are likely to be unresponsive (“birthday,” “baby shower”) or privileged, and to identify search terms you may have missed.

Ok, there was a lot more.  To help, here is a link to Jason and Maura’s slides (click here).

Some  suggested references:

* Craig Ball has a paper on his website summarizing search steps.   It is entitled “Surefire Steps to Splendid Search” (June/July 2009) (Click here).

* The Sedona Conference® Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (Aug. 2007 Public Comment Version) (click here)

*  The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process (May 2009 Public Comment Version) (click here)

* The National Institute of Standards and Technology (NIST) Text REtrieval Conference (TREC) 2009 Legal Track (click here)  

Take-Away Messages from the panel

1.  Success in search requires a well thought-out process with substantial input at the front-end and some degree of testing, sampling, feedback and/or iteration.

2.  The amount of testing, sampling, feedback and/or iteration should reflect the same proportionality considerations inherent in all discovery, i.e., the amount in controversy, the time and resources available, the importance of the evidence to the determination of the dispute, etc.

3.  Different search approaches are best for different tasks. For example, some things are simply easier to search for than others, i.e., patent or pharmaceutical litigation versus evidence regarding off-shore accounts or document destruction/shredding.  Do you need a few good examples, or are you trying to find “all”?

4.  There is no guarantee that any search method will identify all responsive documents in a large, homogeneous data set, and different search methods can produce different result sets. Hybrid or fusion approaches tend to be more successful, but are also more costly and time-consuming.

5.  Automated technology can help, but its not the “end-all-be-all.” Due diligence is absolutely necessary in this current “Wild West” marketplace.

6.  At least some degree of transparency and collaboration is necessary. Obviously, an agreed-upon search methodology (or search-term list) is preferable to a unilateral approach that is subject to second-guessing and “do-overs.”  Parties must be able to explain what they have done and why it is reasonable under the circumstances. 

7.  It is important for practitioners to keep up with the case law, research, and literature in this area because it is quickly evolving. There are consultants (including linguists and statisticians) who have expertise in this area and can help devise or mediate a reasonable search protocol if the parties cannot agree on one.

A  (very) brief note on Text REtrieval Conference (TREC)

TREC was mentioned several times at the panel (and all during the conference) especially the opportunity of  participating in the 2010 TREC Legal Track.  We will have a detailed post on TREC before the year out but just a short “bio” on TREC from Ellen M. Voorhees of the National Institute of Standards and Technology (NIST) who was scheduled to appear but could not:

Evaluation is a fundamental component of the scientific method: researchers form a hypothesis, construct an experiment that tests the hypothesis, and then assess the extent to which the experimental results support the hypothesis.  A very common type of experiment is a comparative experiment in which the hypothesis asserts that Method 1 is a more effective solution than Method 2, and the experiment compares the performance of the two methods on a common set of problems.

The set of sample problems together with the evaluation measures used to assess the quality of the methods’ output form a benchmark task.  Information retrieval researchers have used test collections, a form of benchmark task, ever since Cyril Cleverdon and his colleagues created the first test collection for the Cranfield tests in the 1960’s. Many experiments followed in the subsequent two decades and several other test collections were built.

Yet by 1990 there was growing dissatisfaction with the methodology. While some research groups did use the same test collections, there was no concerted effort to work with the same data, to use the same evaluation measures, or to compare results across systems to consolidate findings. The available test collections were so small—the largest of the generally available collections contained about 12,000 documents and fewer than 100 queries—that operators of commercial retrieval systems were unconvinced that the techniques developed using test collections would scale to their much larger document sets. Even some experimenters were questioning whether test collections had out-lived their usefulness.

At this time, NIST was asked to build a large test collection for use in evaluating test retrieval technology developed as part of the Defense Advanced Research Projects Agency’s TIPSTER project. NIST proposed that instead of simply building a single large test collection, it organize a workshop that would both build a collection and investigate the larger issues surrounding test collection use. This was the genesis of the Text REtrieval Conference (TREC). The first TREC workshop was held in November 1992, and there has been a workshop held annually since then.

We will have a detailed post on TREC before the year out.

15 November 2009

The Institute ended on Friday with a reconvening of the Federal Judges panel that opened the program the first day.  Much was discussed (generated by questions from the audience) so we’ll highlight only some of the major points:

1.   There was much discussion about privilege, how the volume of information produced by electronic discovery has made the process of reviewing that information, to ascertain whether any of it is privileged from disclosure, so expensive that the result of the lawsuit may be a function of who can afford it.   In fact Judge Facciola, who led the discussion, announced that he and Jonathan Redgrave (cochair of the Georgetown Law Advanced E-Discovery Institure and a partner with Nixon Peabody) have an article in the Federal Court Law Review which presents “The Facciola-Redgrave Framework”.  They submit that the majority of cases should reject the traditional document-by-document privilege log in favor of a new approach that is premised on counsel’s cooperation supervised by early, careful, and rigorous judicial involvement.  That cooperation, having first led to an agreement as to what categories of information will be eliminated from any privilege review because the information is so clearly not privileged or so clearly privileged, will then focus on categorization of the information that must be reviewed.

The article was published over the weekend in the Federal Court Law Review and can be accessed here.

2.   Lawyers can no longer plead ignorance about e-discovery technology.  Yes, it has become nuanced and sophisticated and in many cases is not inexpensive.  As was repeated throughout the conference whenever “proportionality” had a chance to raise its head, the merits of a case can easily be overshadowed by discovery costs and complexity.   But there are very smart software vendors out there, and independent EDD consulting companies, who can get attorneys through the myriad formats and technology  to identify, preserve, collect, review, etc. the discoverable ESI.   And there are a flood of CLEs. 

3.  Which brought up another major point: the growing clamor for “certification” in e-discovery.  Said the collective judges (ok, there was one dissent): “not necessary”.  As the judges said, why add another administrative layer on an already cumbersome process?  There are CLEs, conferences, seminars, webcasts, etc. galore on computer forensics and electronic discovery for lawyers (and contract attorneys were mentioned), paralegals, support professionals, etc. to learn.  And these venues are proliferating and the process, the performance is getting better.  More and more people “get it”.  And thanks must go to Georgetown Law and The Sedona Conference and other venues … and the audience … for getting the word out.

And vendors are doing all they can to sponsor live seminars, webinars and webcasts to not only present their services but also to provide as much e-discovery education as they can. 

Besides, said one judge, ”we have Rule 11 to enforce competency”.  

The more practicable move is to get e-discovery into the l aw schools through such efforts as the Georgetown E-Discovery Academy as well as what John Tredennick at Catalyst is doing at the University of Virginia, Ralph Losey and Bill Hamilton at the University of Florida, and the program at the University of Richmond (for our earlier post on this topic click here).

4.  The panel rounded out the session with a few comments on US v. Skilling (5th Cir. 1/6/09).   In the prosecution of Jeffrey Skilling, former CEO of Enron, the government sufficiently complied with its Brady and Giglio obligations by providing the exculpatory material, along with hundreds of millions of pages of other documents, and left it to the defense to figure out what it wanted, the 5th Circuit held. The 5th reasoned that the government did not simply dump the material, but rather provided a searchable electronic file, a set of documents it thought important, indices, and access to databases of related litigation. Additionally, the government was in no better position than the defense to find relevant material, and there was no evidence the government tried to hide the exculpatory material in bad faith.  However the U.S. Supreme Court has agreed to hear the case (click here).

The roundtable was a nice way to end the conference.

12 November 2009

The presentation was titled Information Everywhere: Understanding New Technologies and Coping With New Problems and was presented by Judge James Francis (U.S. Magistrate Judge in the Southern District of New York), Anne Kershaw (founder of A. Kershaw, P.C.), Thomas Morrissey (responsible for the development and implementation of technology supporting the Office of the General Counsel at Purdue Pharma) and George Rudoy (Director of Global Practice Technology & Information Services at Shearman & Sterling LLP).

They covered virtualization, unified communications and cloud computing.  First up:  unified communications.

Unified communications (UC) is the integration of real-time communication services such as instant messaging (chat), presence information, IP telephony, video conferencing, call control and speech recognition with non real-time communication services such as unified messaging (integrated voicemail, e-mail, SMS and fax).

More and more corporations are moving to UC and it will present/is presenting enormous e-discovery nightmares.  First, some basics:

UC is not a single product, but a set of products that provides a consistent unified user interface and user experience across multiple devices and media types.  UC refers to a trend to offer “business process integration” which means (basically) a process to simplify and integrate all forms of communications in a company to optimize business processes, and manage flows.

So, for discovery, you have EVERYTHING in one place.  It kind of … kind of … makes search easier.  You have the whole story in one spot.  Or as Anne Kershaw said it is like the old days when you went to the file cabinet and went through the correspondence in a file and you said “oh, I see, he wrote this, then she wrote that, and he said this …”

UC allows an individual to send a message on one medium and receive on another. It makes it possible to easily transfer any activity or message to another medium. For example, one can receive a voice mail message and choose to access it through email or a cell phone. If the sender is online according to the presence information and currently accepts calls, the response can be sent immediately through text chat or video call.

The difference between unified communications and unified messaging is this:  unified communications refers to both real-time and non-realtime delivery of communications, where unified messaging systems culls messages from non-realtime sources.

For business, UC it is a no brainer:  it represents a concept where multiple modes of business communications can be seamlessly integrated.  UC integrates all the systems that an employee might already be using and helps those systems work together in real time. For example, unified communications technology could allow a user to seamlessly collaborate with another person on a project, even if the two users are in separate locations. The user could quickly locate the necessary person by accessing an interactive directory, engage in a text messaging session, and then escalate the session to a voice call, or even a video call – all within minutes. In another example, an employee receives a call from a customer who wants answers. Unified communications could enable that worker to access a real-time list of available expert colleagues, then make a call that would reach the necessary person, enabling the employee to answer the customer faster, and eliminating rounds of back-and-forth emails and phone-tag.

Note: the panel provided a video from Microsoft (not to sell Microsoft but to show how this all works) and you can access these videos by clicking here.

However … the e-discovery concerns.  And will the e-discovery concerns slow adoption as companies learn that the move away from traditional phone service includes the conversion of voice mails into e-mail in the form of wave (audio) files.

In the event of litigation, they are discoverable in either case, but in electronic form these audio files must be converted to text because wave files are difficult to search because as audio files there is no actual text information to pull out the document during a search.

Failing a completely accurate technology option, the best protection is a sound business process for the handling of voice mails in any form. All the panel recommended handling voice mails on wave files as part of a company’s document retention (and deletion) policy.

And … like any document, voice mails can provide the smoking gun that determines the outcome of a lawsuit.

The panel did not believe there was an increased legal risk by going to unified communications (companies are storing more voice mail as a result of the conversion to unified communications) but since traditional voice mail already is discoverable, converting voice mail to electronic form makes files more accessible to more people.  And it also makes them easier to store and move around, if not search.

But it triggers issues surrounding legal holds and the “duty to preserve” since these concepts/principles applies to all relevant existing or subsequently created data.  As one panelist said, upon issuance of a litigation hold notice or on receipt of a discovery request a company would have to suspend its retention policy and halt destruction of potentially all voice messages on the voicemail server.  Each message would have to be reviewed for a relevance determination.  Prohibitively time consuming and expensive.  Maybe the relevance of the message may be identifiable based on the context of the metadata regarding the sender, recipient and date/time received? 

A complex, complex area.   But regardless of the digital technology, it all must be integrated in a data retention/deletion policy.

Bottom line:  unified communications promises to pave the way for more collaborative business practices and greater productivity, but it also means the general counsel and his/her ESI manager have another set of issues.  Because while while real time communications like IM, VolP, web and audio conferencing make business workflow easier it also brings inherent risks including security, compliance and e-discovery.

12 November 2009

The first session was a truly all-star U.S. judicial panel: Magistrate Judge John Facciola, Magistrate Judge Paul Grimm, Magistrate Judge Nan Nolan,  Magistrate Judge Andrew Peck,  District Court Judge Shira Scheindlin and Magistrate Judge David Waxe, moderated by Kenneth Withers, Director of Judicial Education and Content for The Sedona Conference.

The focus was on the five major subject areas in discovery, and the seminal cases for each (click on the case name for a link to the case):

1.  Preservation           Adams v. Dell, Inc., 2009 WL 910801 (D. Utah arch 30, 2009)

Judge Facciola (who led the discussion on the case) summed up the case by saying “with nobody in charge, with no retention policy, the company in effect screwed itself.  The company had basically empowered the employees”. 

There was a lively discussion among the judges (often arguing against each other) over how a company can “be reasonably made to understand” the duty to preserve evidence for litigation.  But, as one judge pointed out, it is not easy.  You know where you stand with the IRS:  7 years to retain records.  But the whole “in anticipation of litigation” concept … it’s tough.  And as numerous attendees said “our corporate clients tell us that they don’t run a business in anticipation of litigation.  Anybody might get sued.”

The case:

In this patent infringement case, the plaintiff sought sanctions against the defendants for failing to produce relevant emails that it alleged would prove the defendants’ piracy of the plaintiff’s patented and proprietary technology. The defendants insisted their email servers were not designed to archive emails. Rather, individual employees themselves determined which emails to retain.

The court explained that the defendants’ reliance on their employees’ judgment in deciding what to preserve was not an adequate retention policy. The court denied the defendants’ reliance on Rule 37(e) and held the spoliation was not the result of a “good faith” or “routine” removal of electronic data.

In addition, the court determined that the duty of preservation arose several years prior to this lawsuit being filed, in the context of a related class action involving the same technology as the patent.

The court reserved decision on the appropriate sanction pending the close of discovery when the degree of prejudice could be determined.

2.  Form of production    Aguilar v. Immigration  2008 WL 5062700 (S.D.N.Y.  Nov 21,  2008).

This case addresses how metadata fits into discovery and the use and application of Rule 34.  As the judges pointed out, an attorney can request a specific form of production but the best request is “give me all your ESI in the manner of which you maintain it” because it costs money to strip out.  And, as Judge Rosenbaum pointed out, it is probably best to do it all in native, really.

And, said all the judges on the panel, the Aguilar judge was doing what all judges should be doing:  providing solutions/options for the immediate case and just pontificating wide principles.

The case:

In a civil rights class action suit, the parties did not discuss the production of metadata in their Rule 26(f) conference and only mentioned it “in passing” by letter before the defendant had completed its document collection efforts. Later, the plaintiff requested that the defendants produce metadata from emails and electronic documents, and produce any spreadsheets and databases in native format.

The defendants objected on relevance and burden grounds and proposed to produce all ESI as text-searchable .pdf format documents. The court engaged in a detailed analysis of the discoverability of metadata, drawing on the rules, the case law and Principle 12 of The Sedona Principles (Second Edition), concluding that timely requests for relevant and accessible metadata are routinely granted, but courts are reluctant to order a second production if metadata was not originally requested, nor will courts order the production of metadata or production in native format unless the metadata or format are relevant or will materially aide in search for relevant information.

The court declined to order the defendant to repeat the collection of active email from employees or to attempt to capture email metadata from backup media. The court further found that the production of metadata related to word processing and PowerPoint documents would not materially enhance the plaintiffs’ ability to search the relatively small production nor was the metadata more than marginally relevant to the plaintiffs’ claims, and it would only order production if the plaintiff assumed all costs.

The court ordered the production of spreadsheets in native form, as the defendant had expressed a willingness to do so.

Finally, the court ordered that the defendant to demonstrate its hierarchical database for the plaintiff in a “training environment” using dummy data, to allow the plaintiffs’ expert to identify what metadata may be necessary to request. 

Note: there was also brief mention of Armor Screen v. Storm Catcher 2008 WL 5262707 (S.D. Fla. Dec 21, 2008) wherein the defendants moved to compel a second production of documents in a form that would not require them to purchase software to view. The court determined that there was a software program available for $1,700, and the defendants’ failure to exercise reasonable options or discuss this matter in the Rule 26(f) conference suggested a lack of effort on the part of the defense counsel. The court denied the motion to compel discovery and ordered the moving party to pay the prevailing party’s costs and attorney’s fees.

3.  Proportionality    In re Rail Freight Fuel Surcharge Antitrust Litigation 2009 U.S. Dist. LEXIS 56748 (D.D.C. July 2, 2009)

Proportionality proportionality proportionality.  The buzz word today as it was at the Masters Conference (click here) and the ACC Annual Meeting (click here).

The judges discussed how discovery sought cannot be overbroad and must be relevant to any genuinely contested issue, and that the plaintiff must demonstrated any significant, unexplained, or prejudicial failure in the defendant’s production of documents or ESI.

They also said counsel simply must “work together productively and treat each other civilly” and not use “zealous advocacy” as or combative litigation tactics.

And courts were no longer allowing parties to plead ignorance when it comes to e-discovery and technology.

The case:

In this class-action antitrust case for price-fixing of Rail Fuel Surcharges, the plaintiffs contended that discovery on both class certification and substantive issues should proceed simultaneously rather than be phased before and after a finding by the court on class certification.

The court held that since elements necessary to prove class certification and the merits of the case were inextricably linked, the plaintiffs should be able to attain discovery before class certification; however, this decision did not relieve the parties’ obligation brief the issue of class certification by the date scheduled in the case management order, and therefore the plaintiff and defendant must allocate their discovery priorities accordingly.

The judge then went on to note that “I appreciate that this is a compromise but I can only hope that like any compromise it will displease both parties equally.”

Also mentioned:  Newman v. Borders, Inc. 257 F.R.D. 1 (D.D.C. April 6, 2009) where the court noted that given the almost universal use of email in business communication, the plaintiff should have put the defendants on notice that it wanted to discuss the company’s document retention program so that the defendants could properly prepare for the deposition. Citing the Sedona Conference® Cooperation Proclamation, the court held that it is the judge’s obligation to help move the case along since the attorney’s fees most likely had already dwarfed any recovery that could be awarded.

4.  Privilege and Rule 502

Two cases provide the setting:

Rhoads Industries, Inc. v. Building Materials  2008 WL 4916026 (E.D. Pa. 2008)

In a suit by a construction company for breach of contract, the plaintiff inadvertently produced 800 electronic documents it claimed were privileged, and the defendants moved to deem the privilege claims waived. Noting that Fed. R. of Evid. 502(b) establishes a national standard for consideration of claims of privilege waiver, the court nevertheless resorted to prior Third Circuit precedent and a five-factor balancing test.

Analyzing the plaintiff’s document review procedures in detail the court found that “its efforts were, to some extent, not reasonable.” However, the court relied a factor of the Third Circuit test that does not appear in Rule 502(b) — the overall interests of justice — to find that the defendants had not met their burden of proof that privilege had been waived for documents that appeared on the privilege log but had been inadvertently produced. In a subsequent decision, 2008 U.S. Dist. LEXIS 96404 (E.D. Pa. Nov. 26, 2008), the court clarified its opinion and provided explicit instructions for the logging of email strings that contain both privileged and non-privileged messages.

Heriot v. Byrne  2009 WL 742769 (N.D. Ill. March 20, 2009)

In this action over ownership of copyrights, the plaintiffs inadvertently produced privileged documents. In ruling on the defendants’ motion to bar the plaintiffs from clawing back the documents, the court held that attorney-client privilege and work product doctrine attached to documents between defendants and their consultants. The court held that Fed. R. Evid. 502 applied to the issue of waiver of privilege by inadvertent production, and that existing Seventh Circuit precedent could be used to determine whether the production gave rise to a waiver under Rule 502(b).

Among other things, the court found that the plaintiffs had undertaken a reasonable pre-production privilege review and that there was no duty to undertake a post-production review after a vendor had mistakenly produced the documents. The court also found that the plaintiffs had acted promptly to assert their privilege claims.

5.  Search warrants       U.S. v. Comprehensive Drug Testing  473 F.3d 915 (9th Cir. 2006)

Our favorite case of the session, and a complex one indeed.

Comprehensive Drug Testing (CDT) administered testing of professional baseball players for steroid use under the collective bargaining agreement between the players and Major League Baseball. Federal law enforcement investigators had reasonable cause to suspect ten specific players of steroid use. The government secured a grand jury subpoena in the Northern District of California seeking all “drug testing records and specimens” pertaining to Major League Baseball in CDT’s possession; obtained a warrant in the Central District of California authorizing a search of CDT’s facilities in Long Beach; and obtained a warrant from the District of Nevada for the urine samples on which the drug tests had been performed, which were stored in Las Vegas.

The subpoena in the Northern District of California was quashed, and motions under Fed R. Crim. P. 41(g) for the return of records and specimens were granted. The government appealed all three district court decisions, which were upheld by an en banc panel of the Ninth Circuit. The appellate court issued detailed guidance to all judges considering subpoenas or search warrants for computer data from non-parties in a criminal proceeding.

The guidance included:

(1) magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases;

(2) segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant;

(3)  warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora;

(4) the government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents; and (5) the government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.