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E-Discovery Insights – Clearwell Systems, Inc.

Moody v. Turner: An E-Discovery Battle with No Winners BY VENKAT RANGAN ON DECEMBER 3RD, 2010

The electronic discovery blogosphere is filled with analysis of the recent opinion by Judge Sandra Beckwith of U.S. District Court for the Southern District of Ohio, on the Moody v. Turner case. What is striking about the case is that it reveals a huge gap in understanding the pitfalls of prolonged discovery disputes in the context of attempts by thought leaders to prevent exactly the issues elicited in this opinion. As the excellent post by Ralph Losey indicates, in this case, it is an affront to have this play out in front of Judge Beckwith, a signatory to The Sedona Conference Cooperation Proclamation. In reviewing the facts of the case, here are highlights on some of the process missteps: Lack of Early Data Analysis It is not obvious to some how important it is to perform an early analysis of the data before agreeing to search ESI for a certain number of custodians and apply certain keywords. This case illustrates three reasons why early data analysis is critically important. First, the producing party must identify and communicate the right list of custodians. If there is any change or expansion of scope, that needs to be communicated as well. In this case, the Defense team, at their pre-trial 26(f) conference with the Plaintiffs, agreed to produce ESI for twenty six custodians, but chose to send Preservation Notices to larger number of individuals. While this act by itself is commendable, the lack of prompt communication to the Plaintiffs is certainly a misstep that the Plaintiff chose to latch on to as incomplete production of ESI. Second, the producing party must have a handle on scope of searches before committing to “run them”. In reviewing the document Case: 1:07-cv-00692-SSB Doc #: 43, Exhibit 7, it is apparent that the twenty production requests in that report are not trivial. An early analysis of both the data as well as searches at least on a small sample would have helped the producing party understand the scope and challenges of running those searches. Third, the producing party must evaluate their collection, search, and production methods to evaluate the feasibility of producing metadata. As evidenced in the Plaintiffs’ motion (Doc-89, Page 19), it is clear that the Defense did not produce TIF images along with searchable text. However as noted in Doc-118, Page 18, footnote 10): “In any event, parties are generally not required to produce the metadata of their data sets. See Wyeth v. Impax Labs., Inc., No. 06-222, 2006 WL 3091331 at *2… Turner has produced all ESI in TIFF format, except for Excel spreadsheets which were produced in native format given the substantial size of many of the spreadsheets (which, if in TIFF format, may print across hundreds of pages). Judge Hogan therefore rightfully declined to compel Turner to produce any additional metadata.” This is a fairly common request and one that the Plaintiffs could have placed in their pre-trial 26(f) conference. Out of Control Production Requests

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E-Discovery Insights – Clearwell Systems, Inc. In reviewing the aforementioned court document, Doc #: 43, Exhibit 7, one can glean a wealth of information on the nature of searches requested by the Plaintiffs and the responses by the Defense team. The immediate problem evident in these requests is an issue raised by the Defense team – that the search requests are overly broad. Some of the search terms are “plan”, “method”, “rate” and “account”, which are certain to hit a very large number of documents. See below for one of the requests. Production 1-Item 2: All documents other than emails that can be electronically or digitally searched as containing one or more terms that concern the Plan in any way or cash balance pension plans and contain the word “accrual,” “benefit,”, “benefit accrual,” “accrual of benefit”, “accrual methods,” … “calculate”, “calculation”. This goes on and on, for about eighteen pages. Combined, the twenty production requests would clearly hit almost every collected document (a total of 118GB of documents), thus making a follow-on privilege or confidentiality review prohibitively expensive. It is the lack of specificity in these searches that makes the discovery request overly broad. On the other hand, the response from Defense appears to be also poorly constructed. In their response, what we see is the same boiler-plate text, which didn’t escape the notice of the Plaintiffs and the court. “Defendants object to this Request because it is overly broad, unduly burdensome, seeks documents that are neither relevant nor likely to lead to the discovery of admissible documents and (because Plaintiffs define “documents” to include electronic or computerized data compilations) seeks electronic documents that are not reasonably accessible due to undue burden and/or cost. Defendants further object to this Request because it implicates documents protected by the attorney-client and/or work-product privilege and any such documents will be withheld from production” Know more on legal document discovery. What would have helped the Defense’s case would be actual data supporting their claims. For example, if the defendants were to tabulate that words such as “plan” and “benefit” and provide actual document and/or hit counts, it would have bolstered their claim. As expected, this caused the Plaintiffs to submit a further filing, Doc-89 with a host of complaints, chief among them: Defendants reported only (1) the total number of unique documents captured by the search of 17 terms and (2) the number of documents that contained the term “cash balance” but none of the Plaintiffs’ other terms. See Doc. 7710 at 2. Furthermore, the Plaintiffs appear to be on the right track, recommending: On October 14, Plaintiffs wrote to Defendants and proposed an “iterative search process” to decide on a final set of search terms. It seems clear in the on-going discovery disputes, an iterative search process was perceived as contrary to zealous advocacy of their client’s positions and not as a path to resolving further disputes, much as the Cooperation Proclamation suggests. In this context, engaging in a search expert is essential – someone who can modify the search to include more restrictive criteria to limit your search results. Why bother running an open-ended search and produce 29.4GB of useless junk, when you can combine these terms with Boolean, proximity, and other searches? The types of searches, and what each can offer, is a topic that the members of EDRM tackled in formulating theirEDRM Search Guide, which is a must-read for anyone attempting to construct e-discovery searches. Proportionality Arguments Without Strong Basis

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E-Discovery Insights – Clearwell Systems, Inc. An important point to note is that any discovery request that uses inefficient processes and inappropriate technologies will certainly result in undue burdens and cost. It appears that the Defense team did not offer proper cost estimates (arguments put forth in Doc-77-10 notwithstanding), and just pushed an undue burden/cost argument with the hope that the courts would absolve them of discovery obligations. At the same time, the Plaintiffs did seem to have over-reached a bit on extending their discovery disputes with the hope of reaching a favorable outcome. Two examples of such attempts are: 1.

Upon Defense producing the documents (Doc-118), Turner has produced every responsive, non-privileged document obtained through the email ESI searches that related to the Plan; these comprise 4.1 GB, or more than 40,708 pages of documents. The Plaintiffs counter with: “Plaintiffs maintain that Turner should be compelled to produce the metadata for the email ESI it has produced because otherwise they allegedly “cannot know whether Defendants have searched all 33 custodians’ email files” and “cannot confirm whether any email files were electronic in origin (rather than printouts of emails) or determine whose files they came from.” As noted earlier, request for metadata and the feasibility of producing it must be negotiated specifically in the 26(f) conference.

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The attempt of the Plaintiffs to expand discovery, to compel any and every third party, including Defense’s former e discovery law firm, as well as inspect “shared network drives”, “non-shared drives” etc. “Judge Hogan recognized that Turner should not be compelled to probe through the recesses of its internal electronic systems for even more ESI on top of the 47,000-plus hard copy documents and the 40,000-plus pages of ESI it has produced – because those additional searches are not likely to lead to the discovery of any evidence relevant to plaintiffs’ claims. Judge Hogan was presented with the gory history of Turner’s efforts to search through “shared network drives” and “non-shared drives,” emails and backups. He found these efforts to be sufficient, and rightly rejected plaintiffs’ demand for additional ESI.” One can see that Plaintiff’s attempt to drag the electronic discovery efforts into an endless battle was counterproductive. Final Takeaway The Sedona Conference Cooperation Proclamation rightfully recommends “Jointly developing automated search and retrieval methodologies to cull relevant information”. As costs for getting to the facts escalate, a comprehensive strategy that uses the best processes, the best technology, and a commitment to the Cooperation Proclamation is essential for the legal system to deliver what people expect – justice based on facts. Gamesmanship as evidenced in Moody v. Turner is detrimental to this cause.

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Moody v. Turner: An E-Discovery Battle with No Winners