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Biomet MDL – predictive coding workflow upheld based on the numbers

Biomet Predictive Coding


Defendants identified the predictive coding set by using keywords against the collection – the keyword-hot documents were subjected to predictive coding (TAR).  Plaintiffs object because they think the keywords tainted the process.  However, the judge holds that sampling demonstrates the keyword process was sufficient; that whatever documents are left behind are not worth the cost of going back to get them.

“What Biomet has done complies fully with the requirements of Federal Rules of Civil Procedure 26(b) and 34(b)(2).”

“if the Steering Committee wishes production of documents that can be identified only through re-commenced processing, predictive coding, review, and production, the Steering Committee will have to bear the expense. ”


CT General Life v Earl Scheib – the $120K question, cost shifting

CONNECTICUT GENERAL LIFE  INSURANCE COMPANY vs. Civil No. 11-CV-0788-GPC (WVG) February 6, 2013 et al ORDER RULING ON DEFENDANT KELLY CAPITAL, LLC'S OBJECTIONS TO PLAINTIFF'S  REQUESTS FOR PRODUCTION OF DOCUMENTS NOS. 23, 24, 61, 62, AND 73 KE L L YCA P I T A L Court already ruled on  many of objections to RFPs  There are five (5)dealt with here KE L L YCA P I T A L objects to these  five requests because the cost  compared to the claim "renders  production unduly burdensome" fig 1 object fig 2 five fig 3 requests fig 4 burden 219 GB = $120K index filter process attorney review $120,000 to process  the data requested.  NOT including attorney  review and production  management $120,000 size of plaintiff's claim Court lays out the test, from  Fed.R.Civ.P. 26(b)(2)(C) comparing burden or cost of discovery to the value of the discovery once the resisting party meets its burden  that discovery should not be permitted burden shifts to  requesting party to show that discovery is relevant and necessary editor's note: the amount in  controversy was $120k. The  estimated cost of a piece of this ESI  project was $120k. 'Nuff said. The problem, and the reason that I  am not going to continue this  drawing, is that the judge relied upon  OpenTV which gave too much weight  to element four of the Zublake test  (cost). As such, while the result in  the instant case is proper, it is not  worth explaining how the result was  rendered. OpenTV v. Liberate Techs., 219  F.R.D. 474 (N.D. Cal. 2003) 1 1 That was ten years ago, on the heels  of Zubulake, so it is no wonder that  the court got it wrong, but today we  know better. "Plaintiff can ... fund the  discovery (if they really  want it)" cost shifting

Deactivate Facebook – get sanctioned. So don’t do that.

gatto v united airlines facebook and spoliation


Pow & Allied Aviation Civil Action No. 10-cv-1090-ES-SCM. March 25, 2013. Allied Baggage Handler Airplane Feuler Stairs causes to crash into torn rotator cuff torn medial meniscus back injuries injuries have rendered (me) permanently disabled, and… disability limits (my) physical and social activities. Frank GATTO v. & Allied Aviation seek discovery re: social life and injuries. after some back and forth… …the magistrate judge ordered Gatto release objected to subpoena logged into account Gatto deactivates account Account gets deleted subpoenaed records from Start here Gatto thought would not log into account Finish Defendant motions for spoliation sanctions including: adverse inference attorneys’ fees 1 2 Potential spoliation sanctions include: dismissal of a claim judgment in favor of a prejudiced party suppression of evidence adverse inference fines attorneys’ fees and costs X (1) The degree of fault of the party who altered or destroyed the evidence; In determining which sanction is appropriate courts consider the following: (2) The degree of prejudice suffered by the opposing party; and (3) Whether there is a lesser sanction… …that will serve to deter such conduct by others in the future. This case has three lists: i. potential spoliation sanctions ii. criteria for determining appropriate sanction ii. four prerequisites for ordering an adverse instruction factor analysis 4 was within the party’s control there was an actual suppression of destroyed or withheld was relevant reasonably foreseeable would be discoverable List i List ii List iii Spolier Alert: yes to inference no to fees don’t read this box the court orders the adverse inference. An adverse inference, or “spoliation instruction,” permits a jury to infer that the fact that a document was not produced or destroyed is “evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.” Plaintiff deactivated the account This led to the account being deleted Which prejudiced defendants However: a. nofraud b. nota diversionary tactict NOfees notifies Gatto that an unknown IP logged in effect cause information. So:

Use clawback to avoid responsiveness review? Coventry re ERISA

clawback ediscovery



In re Coventry Healthcare ERISA LITIGATION 2013 WL 1187909 (D.Md.)

this is about a retirement savings plan

Plaintiffs allege:

1. failure to prudently manage the plan fail to monitor fiduciaries

2. failure to avoid conflicts of interest

3. co-fiduciary liability

requested timeframe is overbroad…and would impose an undue burden

outweighs any potential benefit

Rule 26(b)(2)(C)(iii) requires that the court limit discovery if it finds this but the party must: demonstrate the burden and provide alternatives. The only alternative offered was refined keywords.

it will cost $388,000 to process, host, and review the data

Court looked to Adair v. EQT Prod. Co. where the high cost of review created a burden. Solution in that case: clawback provision.  Court adopts this solution – clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. SHIFT the burden of review to plaintiff to inform the court whether the ESI produced was over-inclusive or under-inclusive. If production is too broad, then refine keywords

ed: this case and Adair are unique because they apply the 502 clawback standard to responsiveness, while apparently assigning a new burden to the receiving party

Adair v. EQT Prod. Co., 2012 WL 1965880 (W.D.Va. May 31, 2012)

The Importance of Digital Security for Lawyers and Law Firms

The Wall Street Journal recently published an interesting article discussing a growing trend among law firms – some firms are promoting their expertise regarding cybersecurity and computer forensics.  By partnering with a law firm to investigate data breaches and IP theft, clients receive the benefit of attorney-client privilege and are in a better position to respond to breach-related disclosure laws.

On the face of it, this certainly seems like a good idea for the firm’s clients.  Many states have recently enacted laws requiring public disclosure when a data breach occurs, and a law firm is obviously in a good position to interpret these laws and disclose accordingly.  And it’s also important to remember that attorney-client privilege does not protect all communication between firm and client – privilege applies to communication that conveys legal advice, so don’t think of improperly using your counsel as a shield against disclosure.

It should also be noted that law firms are also a popular target for hackers – not only do they act as an aggregator for multiple companies’ sensitive data, but they also often have less robust security in place than the companies they represent, making them a more appealing target for attack.  As a firm’s client list grows, so does the likelihood the firm will be targeted – an unfortunate circumstance of success.

So from my perspective, I’d take the WSJ’s article with a grain of salt.  Because law firms have traditionally been less secure than their clients, and because they collect data from so many different clients, you may want to investigate your firm further before entrusting them with your data.  Have they passed a pen test?  Have they been breached in the past?  Do they participate in regular audits, and how stringent are those audits?

For law firms, security is a risk that should not be taken lightly.  If a hacker is able to gain access into a firm’s network, what might they have access to?  Obviously there are some things that can be useful to a run-of-the-mill attacker – maybe some financial documents or intellectual property such as client lists or trade secrets.  Imagine if an attacker had access to all the documents and coding within a firm’s eDiscovery platform!

Because the size and scope of data is rapidly expanding (IBM estimates that 90 percent of quantifiable data in the world today has been created in the last two years alone), it’s important to keep track of where your data is, and how it is being secured.  It’s much easier to spend the time and effort to take the steps to prevent data loss than it is to respond to a breach.  And once the data is out of your control, it won’t necessarily matter who your legal counsel is.

March 28 – Data Connectors Minneapolis

Don’t forget to stop by the LuciData table at the Data Connectors conference on Thursday, March 28.  If you haven’t been to Data Connectors before, it’s a great place to learn about current security-related challenges facing the IT community.  There will be speakers on several topics, ranging from cloud security to BYOD policies to practical tips to help secure your network.  If you’d like to attend, be sure to register online in advance.  See you tomorrow!

Juster v Sewerage Auth – protective order and cost shifting rejected

ediscovery cost shifting rejected



2013 U.S. Dist. LEXIS 18372 (D.N.J. 2013) February 11, 2013
Deal is made for Juster to refinance NSAH
Things, as they do, fall apart.
Juster puts in time and effort to create a plan, NSAH takes the plan and closes the deal without Juster. Juster says we had a Term Sheet and an exclusivity provision. NSAH says no way. Lawsuit
Plaintiff’s First Production Request – 49 requests for documents 67 search terms. Regarding the 67 terms, NSAH requests protective order or cost shifting because – the search terms are vague and broad and we already produced 8,000 pages. Judge says no protective order no cost shifting.

EEOC vs. Honey Baked Hams – sanctions

honey baked ham part ii