Must a lawyer’s litigation hold letter be written by an IT professional?

Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009)

This isn't Mrs. McClendon

In Green v. McClendon, the court ordered that sanctions be entered against Mrs. McClendon and her counsel for the failure to preserve certain electronically stored information (“ESI”) about an Excel spreadsheet that she produced in discovery. The ESI was lost when “the son of a friend” who was “familiar with computers” reinstalled the operating system on her home computer. The court in Green was uncertain if the plaintiff had actually been deprived of any information because all files on the defendant’s home computer were downloaded onto discs before the hard drive on the computer was reinstalled, and those discs were subsequently produced in discovery. Nonetheless, the court ordered that sanctions be entered, and in the process fashioned an order that may have spawned a potential conflict of interest for defendant and her counsel.

One of the criticisms of ediscovery is that it has evolved into a tactical game of “gotcha,” where one of the goals is to shift the focus from the merits of the case to sanctions on the opposing party. The court’s opinion in Green suggests that trend has not abated. Unfortunately, in a zeal to protect all things digital, the court in Green assumed either that a litigation hold was not properly issued or that the client “brazenly” disregarded those instructions. The court apparently never considered whether the client may not have known or failed to realize that the reinstallation of her home computer’s hard drive would result in the loss of electronic information under the circumstances.

An issue simmering beneath the surface of Green is how detailed must a lawyers’ litigation hold instructions be in order to comply with the attorney’s ethical and professional duties? Does the applicable standard of care require that lawyers now specifically advise their clients to not reinstall the hard drives on their home computers? If so, given the myriad of technological ways ESI can be lost, must a lawyer’s litigation hold letters be written by an IT professional? It is the client’s obligation to preserve evidence not the lawyer’s responsibility. As litigation-hold letters become longer and more detailed, how likely is it that they will be read, understood and followed by the client?

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Defendant’s ESI self-collection inexperience rejected by the court in its undue burden analysis

Spieker v. Quest Cherokee LLC, 2009 WL 2168892 (D.Kan. July 21, 2009)

In Spieker, plaintiffs were current or former owners of mineral interests in lands burdened by the defendant’s oil and gas leases who claimed that defendant failed to properly pay them royalties. Plaintiffs sought to certify a class of owners of mineral and royalty interests subject to the defendant’s leases.

After defendants made written materials available for inspection and copying in discovery, a dispute arose over production of emails which prompted a motion to compel by the plaintiffs. The district court initially denied the motion without prejudice because the defendant estimated the cost of the requested ediscovery at between $82,000 and $375,000, and because the plaintiffs failed to explain how the disputed ESI was relevant to the issue of class certification. In denying the motion, the court noted that Fed. R. Evid. 502 had been recently enacted, and directed the parties to consider conducting computer searches using defendant’s in-house IT staff as well as Rule 502 in any future cost discussions. The parties again met and conferred, but could not resolve their disputes which prompted the filing of a renewed motion to compel.

Opposing the renewed motion to compel, the defendant argued that its in-house IT staff “had no internal experience in producing ESI in litigation,” and that the search and production process would “have to completed on nights and weekends.” Defendant argued that as a result, the cost and burden of in-house production of the requested ESI “would be even greater than using an outside vendor.” The court summarily rejected the defendant’s undue burden argument, finding its cost estimate “greatly exaggerated.” The court observed that it was “aware of no case where a party was excused from producing discovery because its employees ‘have not previously been asked to search for and/or produce discovery materials’”

Given the notable sanctions that can be imposed for the loss, mishandling or untimely production of ediscovery, the court’s decision in Spieker unfortunately appears to have given short shrift to the capabilities of the defendant’s in-house IT staff as well as the risks and burdens associated with ediscovery self-collection. The remainder of this post will discuss potential strategies and approaches to consider should you be confronted with this issue.

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Attorney-client privilege trumps an employer’s electronic communications and computer use policy

Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Super. A.D., 2009 WL 1811064 (N.J. Super. A.D.)

Introduction.

Stengart addressed whether the attorney-client privilege protected a former employee’s emails that were sent to her attorney using a company-issued laptop computer through a personal, password-protected, web-based (Yahoo) email account. The emails addressed a lawsuit the former employee contemplated bringing against her employer and were sent to the employee’s personal attorney prior to her resignation from the company. The company obtained the emails after suit was filed by making a forensic image of the computer’s hard drive and extracting them from the plaintiff’s internet browser history.

The court in Stengart concluded the emails were privileged, holding the policy considerations underlying the attorney-client privilege “substantially outweighed” the company’s interest in enforcing its computer use and electronic communications policy. The decision is also significant in that the court remanded for an evidentiary hearing to determine whether the company’s attorneys should be disqualified or if some other sanction should be imposed as a result of their failure to comply with Rule 4.4(b) of the New Jersey Rules of Professional Conduct. The New Jersey rule, like Rule 4.4(b) of the Model Rules, requires that whenever a lawyer has reasonable cause to believe that a document was inadvertently produced, the lawyer should not read it, and must promptly notify the sender.

The court’s decision in Stengart should be contrasted with Scott v. Beth Israel Medical Center, 17 Misc. 934, 847 N.Y.S.2d 436 (2007), which held the attorney-client privilege was lost when the plaintiff used the company’s email system to communicate with his attorney in view of the company’s no personal use and email monitoring policies coupled with the plaintiff’s awareness of those policies. The Stengart and Beth Israel decisions demonstrate that whether an employee’s communication with personal counsel retains its privileged nature when made via the company’s computer or email system involves a fact-specific inquiry. This post will address those decisions and will outline the factors that courts have examined when addressing the issue of attorney-client privilege in this context.

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Concept Searching

(This is a guest post by Rich Turner, Vice President of Content Analyst Company, LLC)

We hear a lot about “concept searching” and “advanced analytics” but very often, the definitions are confusing, and the situations where you would use features like these aren’t often clear.

We’re all familiar with keyword searching – as well as its limitations. Take for a very simplistic example, you’re working on a case involving leases in a 600-unit housing complex. The lease agreements aren’t standardized, so you’ll need to make sure your search terms include lease, leases, leasing, rental, renting, and since there are subleases involved, sublease, sublet, sub-let, and sub-leasing as well. You could use Boolean operatives (like wildcards, if/then statements) but those can be unforgiving.

Will you get all the relevant documents? The answer is maybe, maybe not – there are many ways to lease property. However, you are likely to find many irrelevant documents with any basic keyword search. Say that this building also provided leases for satellite dishes. Your set of keywords will return those as well – hundreds of irrelevant documents.

Few lawsuits present discovery searches which are this simple. This is why concept searching and advanced analytics are so useful. Most concept search engines can work right alongside keyword searches, and give you the ability to make a representative “lease” or even cut-and-paste the relevant paragraphs from that lease into a search window. The search engine, in turn, will find and rank all documents that use similar terminology and talk about similar concepts. Yes, it may also find the documents about satellite dishes – but those will be ranked very low on a scale of relevance because, while they’re definitely leases, they’re not about property.

Defensibility is often a question about keyword searching (in fact, keyword itself is only a de facto standard). Some judges are pushing hard for using advanced techniques, and many have been quick to point out the pitfalls of keyword-only searches. So what do you do?

Consider the use of concept searching as another tool in your arsenal. In the example above, if a document gets returned that is relevant but doesn’t contain any of your variant of keywords, perhaps that’s an indication that your list is too exclusive. If you’re reviewing the ESI that you have received, then a concept search can allow you to quickly sort “responsive” documents based on the keyword searches into truly relevant ones that actually address the issues you’re reviewing.

Most concept search engines also provide a number of other features as well, all driven by concepts. These include categorizing or grouping documents by concepts, and even clustering conceptually-related documents automatically into groups by concept. Properly implemented, these tools can greatly enhance your ability to bring an orderly process to a mountain of ESI and find relevant information more quickly. In today’s economy, speed and efficiency are more important than ever – and concept searching is one tool at your disposal with tremendous benefits.

About the Author:

Headquartered in Reston, Virginia, Content Analyst® is a leader of advanced search tools and technology. Content Analyst’s software known as CAAT, includes patented Latent Semantic Indexing technology, and provides advanced, conceptual-based search and document analysis for a wide range of customers, from highly-classified intelligence installations to world-class publishers to cutting-edge eDiscovery and litigation and support providers. CAAT exponentially reduces the time needed to discern relevant information from large volumes of documents and data. To learn more about how Content Analyst, visit their website at www.contentanalyst.com, or email info@contentanalyst.com.