DISCOVERY IN 2016: NEW RULES, CASES AND TECHNOLOGY

Written & Presented by: HON. REBECCA SIMMONS, San Antonio Acelity

Presented by: MONICA LERMA, San Antonio IHeart Media

STEVE S. MCNEW, Houston Navigant

State Bar of Texas 32nd ANNUAL LITIGATION UPDATE INSTITUTE January 21-22, 2016 Austin

CHAPTER 6

Honorable Rebecca Simmons Associate General Counsel Acelity 12930 IH 10 West San Antonio, Texas 78249

Education Austin College B. A. 1978 Baylor University School of Law J.D. l980 Durham University, England post-graduate study 1981

Current Professional Activities Associate General Counsel, Litigation, Acelity L.P. Inc. 2013 – present Visiting Judge sitting by special assignment to appellate and trial courts 2013 – present Adjunct Professor, St. Mary’s University School of Law 1994 – present

Former Employment Justice, Fourth Court of Appeals 2005 – 2012 Judge, 408th District Court of Bexar County Texas 2003 –2005 Akin Gump Strauss Hauer & Feld LLP 1992 –2003 Cox & Smith Incorporated 1983 – 1992 Briefing Attorney, Texas Supreme Court l980 – 1981 Specially Commissioned as Texas Supreme Court Justice to hear a designated case in 2005

Awards and Recognition Notes & Comments Editor, Baylor Law Journal Recipient of Rotary International Fellowship Pro-Bono Lawyer of the Year 1987 State Bar of Texas Presidential Citation 2004 Austin College Alumni of the Year 2006 Honorary San Antonio Young Lawyer of the Year 2008 Interfaith Dialogue Community Justice Award 2010 Lumen Gentium Award, Archdiocese of San Antonio 2013 Winning Women of Texas 2014, Texas Lawyer Lee Cusenbury Ethical Life Award 2014, Association Corporate Counsel San Antonio

Activities Chair, Texas Judicial Committee on Information and Technology 2009 – present Council Member, Texas State Bar Litigation Section 2014 – present Director, State Bar of Texas District 10, place 1 Member, National Association of Defense Counsel 2014 – present Member, State Bar of Texas Pattern Jury Charge Committee 2005 – present Member, State Bar of Texas Rules Committee 2006 – 2015 Board Member Texas Judicial Foundation 2014 – 2017 Former President, San Antonio Bar Association 2013 – 2014 Former Chair, Texas Bar Foundation with an endowment of over $20,000,000 Former President of the Bexar County Women’s Bar Association 2006

Former Chair of the William S. Sessions American Inns of Court 2008 Nominations Committee State Bar of Texas Judicial Section 2010 – 2012 Curriculum Committee, Texas Center for the Judiciary 2008 –2010 Co-Director, State Bar of Texas Advanced Personal Injury CLE course 2012 Committee Member, State Bar of Texas Advanced Civil Trial CLE course 2013, 2014 Trustee, Austin College 2012 – present

Speaker and Author Speaker on numerous subjects; recent topics include: Maintaining Client Confidentiality in the Digital Era: Advanced Civil Appellate Course 2015 E-Filing Update 2015: E-Filing, E-Service, and Access; What’s on the Horizon? Advanced Personal Injury Course 2015 Law Office Security in the Cloud: Technology and File Management, Essentials for the General Practitioner Course 2014 Technology and File Management: Best Practices for Reducing, Managing and Storing Your “Paper”, UTCLE, 48th Annual William W. Gibson, Jr. Mortgage Lending Institute 2014 Hot Cases and Emerging Law: Spoliation in Texas, UTCLE; 38th Annual Page Keeton Civil Litigation Conference 2014 E-Filing and E-Service: Tips, Traps, and the TRCP: Advanced Civil Trial Course 2014 Vanishing Documents and Emerging Law: Spoliation in Texas UTCLE State and Federal Appeals 2013 Tech Tips for Real Estate Practitioners: Advanced Real Estate Course 2013 E-Filing Update; Advanced Civil Trial 2013 Traveling in the Cloud; Advanced Personal Injury Course 2012 Plea to the Jurisdiction; Advanced Personal Injury Course 2011 Judicial Recusal; Advanced Personal Injury Course 2010 E-Filing and Technology; Bexar County Women’s Bar Association 2011 E-Filing and Apps for the I-Pad; Winter Judicial Conference 2012 Cloud Security, San Antonio Appellate Section 2012 Panel Discussion on Appellate Practice; Advanced Appellate Conference 2010 and 2012 Author of several articles in the San Antonio Lawyer magazine, various papers for continuing legal education seminars and the following law journal articles: Section 3 and Liability for the Condition and Use of Real Property Under the Texas Tort Claims Act, 31 Baylor Law Review 506 (1979). The Enhancement of Anticompetitive Activity through Group Purchasing Organizations: A Case Study. 17 Antitrust Healthcare Chronicle 1, Spring 2003. Exploring Grounds for Attorney Disqualification and Deciphering Exacting Standards, 37 ST. MARY’S L.J. 1009 (Spring 2006). Plea to the Jurisdiction: Defining the Undefined, 40 St. Mary’s L.J. 627 (Spring 2009). Texas’s Spoliation “Presumption”, 43 ST. MARY’S L.J. 691 (Spring 2012)

Personal Teacher of 6th grade CCD at Our Lady of Grace Parish Married to Richard Clemons and mother of 3 children Hobbies include: running, gardening and cooking

Monica J. Lerma Senior Corporate Counsel—Employment iHeartMedia 200 East Basse San Antonio, Texas 78209 210.832.3503 [email protected]

Monica J. Lerma has been practicing law for 15 years. Ms. Lerma is Senior Employment Counsel with iHeartMedia—a leading global media and entertainment company specializing in radio, digital, out-of-home, mobile and on-demand entertainment and information services for national audiences and local communities.

Prior to joining iHeartMedia, Ms. Lerma was Senior Counsel at Schmoyer Reinhard LLP and also counsel in the San Antonio litigation section of the international law firm of Akin Gump Strauss Hauer & Feld LLP. While at Boston University School of Law, Ms. Lerma was a note editor for the Public Interest Law Journal, a finalist in the Homer Albers Prize Moot Court Competition and a semifinalist in the National Moot Court Competition. Ms. Lerma also coached Boston University’s Hispanic National Bar Association Moot Court Team.

EDUCATION Bachelor in Business Administration, University of Texas at El Paso, 1997 J.D., Boston University School of Law, 2000

BAR ADMISSIONS State Bar of Texas Board Certified-Labor and Employment Law

COMMUNITY INVOLVEMENT  CASA Advocate-2015  Big Sister, Big Brothers Big Sisters of America-2015  Past Board Chair for the Rape Crisis Center (2008-2015)  Past Director (2010 - 2012) and Member, Bexar County Women's Bar Association  Co-Chair, 2012 Bexar County Women’s Autumn Affair  Member, Association of Corporate Counsel  Member, San Antonio Bar Association

PROFESSIONAL RECOGNITIONS  Outstanding Young Lawyer of San Antonio-2011  San Antonio’s bester labor and employment lawyers by S.A. Scene Magazine-2011-2013  Texas “Rising Star”-2012, 2013  Member, Class XXXIII of Leadership San Antonio sponsored by the Greater San Antonio Chamber of Commerce/San Antonio Hispanic Chamber of Commerce

Steven S. McNew

Steven S. McNew Managing Director and Global Strategic Market Development Steven McNew is a Managing Director and Global Strategic Market Leader Development Leader. He brings over 26 years of experience as a strategic Navigant Consulting (PI) LLC ** advisor to corporations and law firms in matters that span e‐discovery, 909 Fannin, Suite 1900 forensics, data breach/cyber security, custom application development, Houston, Texas 77010 Cell: 936-232-9994 predictive coding/Technology Assisted Review (TAR), discovery Tel: 713-646-5015 management, and all phases of information lifecycle management. Fax: 713-646-5001

[email protected] As Global Strategic Market Development Leader, Mr. McNew is

Professional History accountable for identifying opportunities, crafting go‐to‐market  Flex Discovery Solutions approaches, innovating strategies, and leading initiatives to support the 2009-2010 growth of the global practice. Steve directly oversees 30 market‐facing  Huron Consulting Group professionals in the US, Europe, and Asia. This role is an ever‐present 2008-2009  LIT Group, Inc. challenge to utilize sound judgment and pragmatic analysis to ensure that 1998-2008 Navigant’s global development initiatives are successfully executed with  IKON Document Services, Inc. measurable outcomes. 1996-1998  Quorum Litigation Services Prior to joining Navigant, Mr. McNew served as president and founder to 1994-1996  Arthur Anderson several information management firms where he was responsible for fiscal, 1987-1994 operational and strategic initiatives. He also served as a Managing Director Education in the Legal Consulting practice for an international consulting firm,  Northern Kentucky University, responsible for leading discovery services within San Francisco and Business Management Houston markets. Earlier in his career, Mr. McNew worked as a Senior Professional Certification Manager for a “Big Six” international accounting firm where he was Registered Private Investigator in the State of Texas recruited to help build the Houston and Cincinnati Technology Centers. Professional Associations  Board of Directors, Development He has written numerous articles and has spoken at various events over Committee & Advisory Board Member, Child Advocates, Inc. the years. He has been a featured writer and speaker on topics such as e‐  Founder, “Cook-Off for Kids” Discovery, predictive coding, litigation readiness, ESI workflow, data  Founder, Help Everlasting collection, technology and alternative fee arrangements. International

 Member, Houston World Affairs Council Mr. McNew is credited with authoring a patent on enterprise search and  Member, Turnaround Management data collection software. Association

 Advisory Member, Houston Chamber of Commerce

**Wholly-owned subsidiary of Navigant Consulting, Inc. and licensed by the Texas Private Security Board, #A14814

Steven S. McNew

Professional Experience

Mr. McNew has served as strategic advisor, consultant, engagement manager, and project manager to corporations of all sizes and their legal counsel in a multitude of matters. Some representative matters include:

 Managed collection, forensic analysis, processing, searching, hosting, and incoming productions related to broker‐dealer regulatory inquiries and litigations. Services facilitated early case assessment and on‐going defense by an Am Law 100 firm of an individual former executive of the company.

 Provided consulting and project management services to enable a major, international financial institution manage eDiscovery for dozens of regulatory and litigation matters arising from positions in mortgaged backed securities. Successfully managed identification and collection of data from repositories housing from over 60 TB of archived data from 150 custodians; overseeing processing and searching of roughly 15 TB of collected data; and overseeing all other hosting and production activities. Coordinated activities between the corporate client, 2 other services providers and 4 top ranking national and international law firms.

 Provided extensive forensic collection, analysis, reporting, and advisory services related to potential spoliation claims arising from a litigation involving a commodities investments organization. When faced with the potential loss of relevant data due to possible, inadvertent destruction, I was engaged by outside counsel and the company to conduct an analysis of hundreds of previously collected evidence items, previously produced records and the company’s current data store to build a potential gap analysis. Efforts enabled counsel to defend previous preservation efforts and draw relevant data from previous collections.

 Provided end to end eDiscovery services for a privately held, multibillion dollar, international technology company when an alleged patent infringement suit was brought against the company by a publicly held competitor. Services included forensic data preservation and collection, structured data collection and analysis, processing, searching, data hosting, production and predictive coding. The client, with headquarters in Europe, required well‐coordinated and targeted collection, extraction, analysis and inventory of data from 4 different locations in 3 different U.S. states. Data included sensitive, proprietary data. Data extracted from structured systems was analyzed and replicated in specific reports for attorney review. Client data as well as opposing party productions were hosted in Relativity to facilitate attorney review and production.

Steven S. McNew

Further, analysis of the opposing party’s predictive coding protocols was conducted. An eDiscovery readiness assessment was completed to help them be prepared to respond to potential future litigation.

 Acted as Operations Manager and led an engagement team on a large chemical contamination matter for a Fortune 100 multi‐national telecommunications company.

 Oversaw all document management and e‐Discovery aspects of the failure of a reputable financial institution. Ultimately, this high‐profile matter involving senatorial corruption led to the financial failure of what was later called “the single greatest regulatory lapse of the century.”

 Served as the Engagement Manager in a matter involving the failure of a major automotive company.

 Provided strategic consulting and led all aspects of data collection, e‐Discovery, technology decisions, and document review in the San Jacinto Pipeline incident. This high profile matter was referred to as “Armageddon that came to Houston”.

 Served as General Manager over the information management service bureau in the now infamous “DuPont Model” with DuPont. Provided leadership, oversight, and expertise in the areas of information management for DuPont and its outside counsel.

 Managed all e‐Discovery activities for one of the largest services companies in the Fortune 500 list headquartered in Dallas, which included providing: strategic consulting, e‐Discovery, technology solutions, document review, and other advisory services over a nine year period. This engagement also included navigating the client through challenging Shareholder litigation as well as a complex SEC investigation.

 Provided strategic consulting and information management services in the civil litigation and criminal prosecution regarding the Branch Davidian matter.

 Led all trial support activities for the American syndicated daytime tabloid , , in the murder trial of Scott Amedure.

 Provided strategic consulting and e‐Discovery services in a major Qui Tam litigation matter including many of the country’s leading oil and gas companies.

Steven S. McNew

 Provided strategic guidance to a leading diversified investment and development company in Ukraine in regard to United States rules and regulations relating to the successful management of global litigation processes.

 Provided strategic consulting, e‐Discovery, information management, and technology services to the world’s largest research‐based pharmaceutical company for more than six years with matters involving contract disputes, multiple drug cases, and general litigation.

Professional Recognition

 2013 Navigant Corporate Citizenship Award  2005 Ernst & Young Entrepreneur of the Year Finalist (Gulf Coast States)  2004 Ernst & Young Entrepreneur of the Year Finalist (Gulf Coast States)  2003 Ernst & Young Entrepreneur of the Year Finalist (Gulf Coast States)  2004 Selected by MSNBC Feature “The Winners Circle” hosted by Terry Bradshaw  2002 Leadership & Vision Award  1996 High Impact Award

Discovery in 2016: New Rules, Cases and Technology Chapter 6

TABLE OF CONTENTS

I. ABSTRACT ...... 1

II. INTRODUCTION ...... 1

III. NEW FEDERAL RULES CONTRASTED WITH TEXAS RULES ...... 2 A. On December 1, 2015 significant amendments ...... 2 B. Scope of Discovery under Amended Rules ...... 2 C. Scope of Discovery under the Texas Rules of Civil Procedure...... 2 D. Timing of Discovery ...... 2 E. Responses to Discovery Requests ...... 2 F. Preservation of Electronically Stored Information ...... 3

IV. RECENT CASES AND CONTINUING IMPLICATIONS ...... 3 A. Electronic Discovery ...... 3 B. Spoliation...... 3 1. Judicial Process...... 4 2. Finding Spoliation ...... 4 3. Trial Court’s Role ...... 4 4. Spoliation Remedies ...... 4 5. Admission of Evidence ...... 4 6. The Brookshire Brothers Dissent ...... 5 7. Petroleum Solutions ...... 5 8. Wackenhut ...... 5 9. Since the Brookshire Brothers decision ...... 5

V. TECHNOLOGY...... 6 A. Document/ESI Production ...... 6 1. Costs of Litigation ...... 6 2. Keyword Searches ...... 7 3. Predictive Coding a/k/a Technology Assisted Review (TAR) ...... 7 B. Social Media Production ...... 8

VI. COST MANAGEMENT ...... 8

i Discovery in 2016: New Rules, Cases and Technology Chapter 6

TABLE OF AUTHORITIES

CASES Abrams v. Pecile 83 A.S.3d 527 (N.Y. App. Div. 2011) ...... 8 Brookshire Brothers, Ltd. v. Aldridge 438 S.W.3d 9 (Tex. 2014) ...... passim Cire v. Cummings 134 S.W.3d 835 (Tex. 2004) ...... 1 Crispin v. Christian Audigier50 717 F. Supp. 2d 965 (C.D. Cal. 2010)...... 8 Da Silva Moore v. Publicis Groupe 287 F.R.D. 182 (S.D. N.Y. 2012), aff’d, 2012, WL 1446534 (S.D.N.Y. Apr.26, 2012) ...... 7 Ford Motor Co. v. Castillo 279 S.W.3d 656 (Tex.2009) ...... 2 Global AeroSpace Inc. v. Landow Aviation, L.P., No. CL-61040, 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012)...... 7 Hinterberger v. Catholic Health Sys. Inc., No. 08-380, 2013 WL 2250603 (W.D. N.Y. May 21, 2013) ...... 7 In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., No. 12-2391, 2013 WL 6405156, at *1 (N.D. Ind. Aug. 21, 2013) ...... 7 In re Indeco Sales, Inc. No. 09-14-00405, 2014 WL 5490943 (Tex. App. – Beaumont October 30, 2014) ...... 8 In re National Lloyds Ins. Co. 449 S.W.3d 436 (Tex. 2014) ...... 2 In re State Farm Lloyds 2015 WL 6520998, Tex. App. – Corpus Christi, October 28, 2015 ...... 3 In re Verp Inv., Inc. 457 S.W.3d 255 (Tex. App.- Dallas 2015) ...... 3 In re Weekley Homes, L.P. 295 S.W.3d 309 (Tex. 2009) ...... 1, 3 Ltd. v. Aldridge 438 S.W.3d 9 (Tex. 2014) ...... 1, 3 McCann v. Harleysville Ins. Co. of New York 78 A.D. 3d 1524, 910 N.Y.S.2d 614, (N.Y. App. Div. 2010) ...... 8 Petroleum Solutions, Inc. v. Head 454 S.W.3d 488 (Tex. 2014) ...... 5 Pilgrim’s Pride v. Mansfield 2015 WL 794908 (Tex. App. – Beaumont, March 5, 2015) ...... 6 Rio Tinto PLC, v. Vale S.A., et al No. 14-3042, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015) ...... 7, 8 Smith v. Williams 2015 WL 3526089 (Tex. App. – Texarkana, May 29, 2015) ...... 6 Telesis/Parkwood Ret. 1 v. Anderson 462 S.W.3d 212 (Tex. App. El Paso 2015) ...... 5 Wackenhut Corp. v. Gutierrez 453 S.W. 3d 917 (Tex. 2015) ...... 5 Wal-Mart Stores, Inc. v. Johnson 106 S.W. 3d 718 (Tex. 2003) ...... 1, 6 Zubulake v. UBS Warburg LLC (Zubulake IV) 220 F.R.D. 212 (S.D.N.Y. 2003) ...... 1, 3

ii Discovery in 2016: New Rules, Cases and Technology Chapter 6

STATUTES Stored Communication Act 18 U.S.C. Chapter 121 § 2701 ...... 8

OTHER AUTHORITIES Damian Vargas, Note, Electronic Discovery: 2006 Amendments to the Federal Rules of Civil Procedure, 34 Rutgers Computer & Tech. L.J. 396 (2008) ...... 1, 3 E-Discovery Bulletin, Predictive Coding: It’s Here to Stay, June/July2014practicallaw.com, www.skadden.com/sites/default/files/publications/LIT_JuneJuly14_EDiscovery Bulletin.pdf ...... 7 Hon. X. Rodriguez, Brookshire Bros: Clean Up on Aisle 9. The Current Messy State of Spoliation Law, 46 S. Mary’s L.J. 477 (2015)...... 4 John M. Facciola & Philip J. Favro, Safeguarding the Seed Set: Why Seed set Documents May Be Entitled To Work Product Protection, 8 Fed. Cts. L. Rev. 1(2015) ...... 7 Maeve Duggan et al., Social Media Update 2014, PEW RESEARCH CENTER (January 9, 2015), http://www.pewinternet.org/files/2015/01PI_SocialMediaUpdate20144.pdf ...... 8 Minnesota E-Discovery Working Group, Using Technology To Facilitate Production Of E-Discovery, 40 Wm. Mitchell L. Rev. 588 (2014) ...... 7 National Day Laborer Organizing Network v. US Immigration & Customs Enforcement 877 F. Supp. 2d 87,109 (S.D.N.Y. 2012) ...... 7 Pace, Nicholas M. and Zakaras. Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discover. RAND Corporation, 2012. http://www.rand.org/pubs/monographs/MG1208 ...... 6 The Sedona Conference, The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production 1 (Jonathan Redgrave et al. eds., 2005), available at http://www.thesedonaconference.org/dltForm?did=7_05TSP.pdf ...... 1, 3

RULES Fed. R. Civ. P. 1 (Dec. 1, 2015) ...... 1, 2 Fed. R. Civ. P. 26(b)(1) (Dec. 1, 2010) ...... 2 Fed. R. Civ. P. 26(b)(1) (Dec. 1, 2015) ...... 2 Fed. R. Civ. P. 26(d) (Dec. 1, 2015) ...... 2 Fed. R. Civ. P. 34 (Dec. 1, 2015) ...... 2 Fed. R. Civ. P. 37 (Dec. 1, 2013) ...... 3 Fed. R. Civ. P. 37 (Dec. 1, 2015) ...... 1, 3 Tex. R. Civ. P. 192.3(a) ...... 2 Tex. R. Civ. P. 196.4 ...... 2, 3

iii

Discovery in 2016: New Rules, Cases and Technology Chapter 6

DISCOVERY IN 2016: NEW RULES, recognize the increasing burden of voluminous discovery and seek to encourage early and expeditious CASES AND TECHNOLOGY case management, proportionality in discovery, and preservation of ESI. In fact the rules “should be I. ABSTRACT construed, administered, and employed by the court and The increasing growth of electronically stored the parties to secure the just, speedy, and inexpensive information (“ESI”) has increased the cost and determination of every action and proceeding.” Rule 1, complexity of litigation. Courts and legislatures are FRCP. increasingly attempting to reduce litigation costs. The Discovery under the new federal amendments has most recent attempt at curbing costs is reflected in the changed and practitioners must learn to navigate the amended Federal Rules of Civil Procedure that became amendments. Likewise, the practitioner must effective on December 1, 2015.1 Attorneys are likewise understand the relief available for the failure to preserve struggling to tame the discovery demon and are using information and the parameters of spoliation. On July 3, new technology to make the process more efficient. 2014, the Texas Supreme Court issued its opinion This Article discusses the new rules, cases and addressing spoliation in the long awaited case of technology impacting discovery and offers practical Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 suggestions for obtaining discovery in the most cost (Tex. 2014).2 In Brookshire Brothers the supreme court effective means possible. enunciated standards governing spoliation and the

parameters of the trial court’s discretion to impose a II. INTRODUCTION remedy for spoliation. 3 The supreme court had last The growth of ESI is continuing at a rapid pace and addressed spoliation before the explosion of digital is accompanied by the increasing complexity of evidence and ESI,4 and frustration over the increasing preservation and production of ESI. The costs and problems with producing and storing ESI was mounting burden of review relating to the production of ESI can in both state and federal courts.5 The supreme court easily outstrip the value of the litigation. thus set to work to “bring much needed clarity to In the increasingly complex world of e-discovery, our state’s spoliation jurisprudence”.6 Proportionality is lawyers are being called upon to collect ESI from a key component in determining the remedy available multiple devices that store ESI in multiple locations and for spoliation. in multiple formats. Often clients don’t know what they Amended Federal Rule of Civil Procedure 37 sets have or where it is stored. The sheer volume of data can forth specific remedies for the loss of information, be overwhelming. If the client can afford it, most although the court is left with discretion to allow the lawyers hire forensic experts to assist with locating and appropriate remedy, proportionality should govern any organizing ESI. But there is always the lurking feeling remedy. In In re Weekley Homes, L.P., 295 S.W.3d 309, that sanctions could be awarded at any moment for the 322 (Tex. 2009) the Texas Supreme Court articulated failure to comply with e-discovery obligations. The the procedures to use when seeking or resisting the newly amended Federal Rules of Civil Procedure

1 particular computer system, and is dispersed across different 2 The case was argued before the supreme court in September file formats and storage devices”); see Bennett B. Borden et of 2012. The trial court’s final judgment was signed in June al., Four Years Later: How the 2006 Amendments to the 2008 and the Court of Appeals issued its opinion in July 2010. Federal Rules Have Reshaped the E-Discovery Landscape Brookshire Brothers v. Aldridge, No 12-08-00368-CV, 2010 and are Revitalizing the Civil Justice System, 17 RICH. J.L. & WL 2982902, rev’d Brookshire Brothers, Ltd. v. Aldridge, TECH. 10, ¶ 3 (2011) (“The immense volume of potentially 438 S.W.3d 9 (Tex. 2014). relevant evidence has driven the cost of finding, reviewing, 3 Brookshire Brothers, Ltd. at *1. and producing that information to unprecedented heights, 4 Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004); Wal-Mart threatening the very purposes of our civil justice system.”); Stores, Inc. v. Johnson, 106 S.W. 3d 718,721(Tex. 2003). Damian Vargas, Note, Electronic Discovery: 2006 5 Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. Amendments to the Federal Rules of Civil Procedure, 34 212, 214 (S.D.N.Y. 2003) (recognizing the increased RUTGERS COMPUTER & TECH. L.J. 396, 398 (2008) (citing a difficulties in the area of spoliation due to the rise in the use 2006 survey that noted “a company of 100,000 employees of electronic information); Matthew S. Makara, Note, My Dog may store an average of 1.5 billion emails annually”); THE Ate My Email: Creating a Comprehensive Adverse Inference SEDONA CONFERENCE, THE SEDONA PRINCIPLES: BEST Instruction Standard for Spoliation of Electronic Evidence, PRACTICES, RECOMMENDATIONS & PRINCIPLES FOR 42 SUFFOLK U. L. REV. 683, 696–98 (2009) (listing the ADDRESSING ELECTRONIC DOCUMENT PRODUCTION 1 challenging features of electronic evidence, including (Jonathan Redgrave et al. eds., 2005), available at “electronic evidence is more voluminous and easier to http://www.thesedonaconference.org/dltForm?did=7_05TSP duplicate, is more difficult to delete, constantly changes .pdf (estimating that in 2005, more than 90% of all formats, contains hidden metadata, can be dependent on a information was created electronically). 6 Brookshire Brothers, Ltd. at *1. 1 Discovery in 2016: New Rules, Cases and Technology Chapter 6 production of electronic discovery under Texas Rule now define the scope of discovery and must be of Civil Procedure 196.4. These rules incorporate a considered when making discovery requests, responses reasonableness standard in the retrieval of electronic and objections. information, and there is a balancing that occurs when weighing the burden of production and the benefits to C. Scope of Discovery under the Texas Rules of be gained from the production. But if the production is Civil Procedure voluminous, the cost of reviewing the documents can be In contrast to the scope of discovery under the overwhelming and new technology is assisting in Amended Federal Rules, the Texas Rules of Civil winnowing the production down to the relevant and Procedure permit discovery of “any matter that is not useful documents. Attorneys must be knowledgeable privileged and is relevant to the subject matter of the about the technology and associated costs that pending action.” TEX. R. CIV. P. 192.3(a). The phrase accompany the production of discovery. “relevant to the subject matter” is to be broadly This paper will focus on the new rules, cases and construed. In re National Lloyds Ins. Co., 449 S.W.3d technology that will impact discovery in 2016 and make 436 (Tex. 2014) ctg. Ford Motor Co. v. Castillo, 279 recommendations on how to effectively navigate the sea S.W.3d 656, 664 (Tex.2009). It is no ground for of change. objection “that the information sought will be inadmissible at trial if the information sought appears III. NEW FEDERAL RULES CONTRASTED reasonably calculated to lead to the discovery of WITH TEXAS RULES admissible evidence.” TEX. R. CIV. P. 192.3(a). Unlike A. On December 1, 2015 significant amendments the proportionality limits to the scope of discovery to the Federal Rules of Civil Procedure were under the Federal Rules, a request “is not overbroad implemented affecting Rules 1, 4, 16, 26, 30, 33, 34, 37, merely because [it] may call for some information of 55, and 88. Under these new amendments the court is doubtful relevance” so long as it is “reasonably tailored to “construe and administer these rules to secure the just, to include only matters relevant to the case.” In re speedy, and inexpensive determination of every action.” National Lloyds Ins. Co., 449 S.W.3d at 486. Rule 1 Comment FRCP. For litigators the amendments altering the scope, timing and responses to discovery D. Timing of Discovery requests – as well as those addressing preservation, are Amended Rule 26(d) permits early Rule 34 the most critical changes. requests. Under the former rule a party could not seek discovery until after the Rule 26(f) conference. A party B. Scope of Discovery under Amended Rules may now serve a request for production 22 days after Amended Rule 26(b)(1) changes the scope of service of the summons and complaint. The request discovery that previously permitted discovery of any however is considered to have been served at the first non-privileged matter that was relevant to any party’s Rule 26(f) conference. Thus, the time to respond would claim or defense. Under former Rule 26(b)(1) relevant be 30 days from the conference. evidence was not limited to that which was admissible at trial, but included discovery “reasonably calculated to E. Responses to Discovery Requests lead to the discovery of admissible evidence.” The Rule 34 has been amended to avoid the amended version of Rule 26(b)(1) deletes the foregoing gamesmanship of boilerplate objections and provision relating to the discovery of information interminable rolling productions. Amended Rule reasonably calculated to lead to the discovery of 34(b)(2)(B) requires that objections be made with evidence and imports proportionality as a standard for specificity including the reasons for the objections. limiting the scope of discovery. Amended Rule 34(b)(2)(C) provides that an objection Amended Rule 26(b) (1) limits the scope of must include whether any responsive materials are being discovery based on whether it is proportional to the withheld on the basis of that objection. Thus, the needs of the case. Non-privileged matter must be uncertainty of whether documents were actually relevant to any party’s claim or defense but it also must withheld by virtue of an objection may be avoided. The be proportional to the needs of the case. Factors to new requirement may be met by identifying a limited consider include: “(1) the importance of the issues at search for responsive and relevant documents that will stake in the action, (2) the amount in controversy, (3) the be conducted. Finally, the amended version of Rule parties’ relative access to relevant information, (4) the 34(b)(2)(B) requires that any production of documents parties’ resources, (5) the importance of the discovery in response to a request for inspection be completed no in resolving the issues, and (6) whether the burden or later than the time for inspection specified in the request expense of the proposed discovery outweighs its likely or another reasonable time identified in the response. benefit.” These considerations have been imported This is an attempt to avoid the common practice of from Rule 26(b)(2)(C) dealing with discovery protective responding that documents will be produced but orders. As part of Rule 26(b)(1) these considerations providing no date for the production. Under the 2 Discovery in 2016: New Rules, Cases and Technology Chapter 6 amended rule, if it is necessary to produce documents in procedures of In re Weekley Homes to case before the stages, the response should specify the beginning and court); In re State Farm Lloyds, 2015 WL 6520998, end dates of the production. Tex. App. – Corpus Christi, October 28, 2015. A recent case illustrates the disputes that can arise over F. Preservation of Electronically Stored production formats. In re State Farm Lloyds, there was Information a dispute over the format of State Farm’s production. Former Rule 37 was originally viewed as a safe After reviewing TRCP 196.4, the court noted that the harbor provision allowing a party to avoid sanctions if plaintiffs had specified the form of production of ESI, ESI was lost due to “routine, good-faith operation of an but State Farm had produced the ESI in a different electronic information system”. The circuits split on “reasonably usable” format. The court held that State their interpretation of the sanctions available under Farm was required to produce the information in the former Rule 37(e)(1). The new rule settles the circuit form requested unless it served timely objections or split. Amended Rule 37(e)(1) permits the most serious assertions of privilege. Id. at *5. A party producing sanctions – an adverse inference, dismissal of the action requested ESI has “the obligation to either produce the or a default judgment – only where a party acts with the responsive ESI that is reasonably available to it in the intent to deprive the other party of the ESI’s use in the ordinary course of business or to object if it cannot litigation. This rule only applies to electronically stored produce the ESI in the requested form through information that should have been preserved and the “reasonable efforts.” Id. The rule does not offer State party failed to take reasonable steps to preserve it and Farm the unilateral option to produce ESI in a the missing ESI cannot be restored or replaced through “reasonably usable” format.” Id. at *6. additional discovery. Finally, the remedy has to be proportioned to the action B. Spoliation On July 3, 2014, the Texas Supreme Court issued IV. RECENT CASES AND CONTINUING its opinion addressing spoliation in the long awaited IMPLICATIONS case of Brookshire Brothers, Ltd . v. Aldridge, 438 A. Electronic Discovery S.W.3d 9 (Tex. 2014). 7 In Brookshire Brothers the Rule 196.4 addresses the procedures that must be supreme court enunciated standards governing followed in seeking the discovery of data or information spoliation and the parameters of the trial court’s that exists in electronic or magnetic discretion to impose a remedy for spoliation.8 It had format. TRCP. 196.4; In re Verp Inv., Inc., 457 S.W.3d been ten years since the supreme court had last 255,260,261 (Tex. App.- Dallas 2015)., In re Weekley addressed spoliation, and frustration over the increasing Homes, L.P., 295 S.W.3d 309, (Tex. 2009) gave the problems with producing and storing ESI was mounting 9 Texas Supreme Court the opportunity to provide a in both state and federal courts. The supreme court detailed outline for requesting and responding to ESI. attempted to “bring much needed clarity to our state’s Courts continue to use the procedures outlined in spoliation jurisprudence.” 10 Not everyone agrees, Weekley Homes to guide them in reviewing requests for ESI. See In re Verp Investment LLC, (applying

7 The case was argued before the supreme court in September al., Four Years Later: How the 2006 Amendments to the of 2012. The trial court’s final judgment was signed in June Federal Rules Have Reshaped the E-Discovery Landscape 2008 and the Court of Appeals issued its opinion in July 2010. and are Revitalizing the Civil Justice System, 17 RICH. J.L. & Brookshire Bros. v. Aldridge, No 12-08-00368-CV, 2010 WL TECH. 10, ¶ 3 (2011) (“The immense volume of potentially 2982902, rev’d Brookshire Brothers, Ltd. v. Aldridge, 438 relevant evidence has driven the cost of finding, reviewing, S.W.3d 9 (Tex. 2014). and producing that information to unprecedented heights, 8 Brookshire Bros., 438 S.W.3d at 14. threatening the very purposes of our civil justice system.”); 9 Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. Damian Vargas, Note, Electronic Discovery: 2006 212, 214 (S.D.N.Y. 2003) (recognizing the increased Amendments to the Federal Rules of Civil Procedure, 34 difficulties in the area of spoliation due to the rise in the use RUTGERS COMPUTER & TECH. L.J. 396, 398 (2008) (citing a of electronic information); Matthew S. Makara, Note, My Dog 2006 survey that noted “a company of 100,000 employees Ate My Email: Creating a Comprehensive Adverse Inference may store an average of 1.5 billion emails annually”); THE Instruction Standard for Spoliation of Electronic Evidence, SEDONA CONFERENCE, THE SEDONA PRINCIPLES: BEST 42 SUFFOLK U. L. REV. 683, 696–98 (2009) (listing the PRACTICES, RECOMMENDATIONS & PRINCIPLES FOR challenging features of electronic evidence, including ADDRESSING ELECTRONIC DOCUMENT PRODUCTION 1 “electronic evidence is more voluminous and easier to (Jonathan Redgrave et al. eds., 2005), available at duplicate, is more difficult to delete, constantly changes http://www.thesedonaconference.org/dltForm?did=7_05TSP formats, contains hidden metadata, can be dependent on a .pdf (estimating that in 2005, more than 90% of all information was created electronically). particular computer system, and is dispersed across different 10 file formats and storage devices”); see Bennett B. Borden et Brookshire Bros., 438 S.W.3d at 14. 3 Discovery in 2016: New Rules, Cases and Technology Chapter 6 however, that clarity has emerged from Brookshire the remedy include: (1) level of culpability and (2) Brothers.11 degree of prejudice suffered. Finally, a spoliation Brookshire Brothers presented the supreme court instruction “is warranted only when the trial court finds with the opportunity to address the state’s spoliation that the spoliating party acted with the specific intent of jurisprudence.” 12 Noting that spoliation of evidence concealing discoverable evidence, and that a less severe raises competing concerns in a case: (1) it can deny the remedy would be insufficient to reduce the prejudice fact finder relevant evidence to fairly decide a case; and caused by the spoliation.”17 (2) it can shift the focus of a case away from the merits to the improper conduct of the alleged spoliator 5. Admission of Evidence particularly when the bad conduct is presented to the Much of the supreme court’s analysis in jury, the supreme court focused on the remedying the Brookshire Brothers is based on existing case law and second concern. Recognizing the added complexity practice but its restriction on the admission of evidence brought by technology the supreme court set forth with regarding spoliation is a surprising departure from greater clarity the standards governing spoliation and existing law when the jury will be given a spoliation the parameters of the trial court’s discretion to impose a instruction. Because the trial court determines whether remedy, including the propriety of submitting a spoliation occurred and the remedy by reviewing spoliation instruction.13 Key holdings articulated at the evidence often unrelated to the merits, the supreme court beginning of the Brookshire Brothers opinion focus on holds that evidence bearing solely on whether a party the role of the judge in finding spoliation. spoliated evidence or the degree of culpability is irrelevant to the merits of the case and should not be 1. Judicial Process admitted. This holding is bolstered by the tendency of The supreme court first held that a spoliation evidence to skew the focus of the trial from the merits analysis involves a two-step judicial process: “(1) the to the conduct of the spoliating party.18 The court does trial court must determine, as a question of law, whether recognize that evidence regarding the content of the a party spoliated evidence, and (2) if spoliation spoliated evidence that is relevant to a claim or defense occurred, the court must assess an appropriate would be admissible. This evidence would be remedy.”14 absolutely critical in assisting the jury in understanding the nature of the spoliated evidence and the inference to 2. Finding Spoliation be drawn from its destruction. But the court is clear that The supreme court held that to determine evidence unrelated to the merits of the case, but “serves spoliation, the trial court must find: “(1) the spoliating only to highlight the spoliating party’s breach and party had a duty to reasonably preserve evidence, and culpability” should not be heard by the jury.19 (2) the party intentionally or negligently breached that The admonition against admitting evidence duty by failing to do so.”15 surrounding the spoliation at trial makes sense when the remedy is not a spoliation instruction. But when a jury 3. Trial Court’s Role instruction is submitted failure to provide sufficient Brookshire Brothers makes absolutely clear that evidence surrounding the spoliation at trial could the trial court hears the evidence regarding spoliation provide the jury without the context necessary to apply and makes its findings outside the presence of the jury. the spoliation instruction. The court expands on its Indeed “evidence bearing directly upon whether a party comments regarding the admission of appropriate has spoliated evidence is not to be presented to the jury evidence as it reviews the evidence submitted in the except insofar as it relates to the substance of the Brookshire Brothers case. The court acknowledges that lawsuit.”16 evidence regarding what the missing video would have shown, including testimony about the cleanup, was 4. Spoliation Remedies admissible. Likewise some testimony regarding the Recognizing that a trial court has broad discretion creation of the video was appropriate as background. to impose a remedy for spoliation, the supreme court But testimony relevant to whether Brookshire Brothers notes that as with discovery sanctions the remedy must intentionally breached its duty to preserve evidence was be proportionate and relate directly to the conduct and improperly admitted. According to the court, may not be excessive. Key considerations in imposing substantial focus at trial was on the spoliation in this

11 Hon. X. Rodriguez, Brookshire Bros: Clean Up on Aisle 15 Id. 9. The Current Messy State of Spoliation Law, 46 S. Mary’s 16 Id. L.J. 477 (2015). 17 Id. at 14. 12 Id. at 14. 18 Id. at 25, 26. 13 Id. 19 Id. 14 Id. 4 Discovery in 2016: New Rules, Cases and Technology Chapter 6 case and accusations that Brookshire Brothers hid preserved error on its objection to the submission of the evidence and acted deceptively. Moreover the instruction. After finding error preserved, the supreme preserved portion of the videotape did not support the court reiterated the framework set forth in Brookshire speculative presumption that the missing footage would Brothers. 23 The supreme court reviewed the trial have been harmful to Brookshire Brothers. 20 court’s submission of the instruction under an abuse of Unfortunately many questions will arise over the discretion standard and held the trial court abused its parameters of the evidence that should be submitted to discretion in submitting an instruction based on support the jury instruction on spoliation. negligent spoliation. Furthermore, the court held that the trial court’s error was reversible because it probably 6. The Brookshire Brothers Dissent caused the rendition of an improper judgment.24 The chief criticism of the dissent is two-fold: the broad limitation on the trial court’s discretion and the 9. Since the Brookshire Brothers decision failure of the majority to apply its “willful blindness” at least one case has been decided upholding a construct to the facts. The dissent specifically criticizes spoliation instruction. Telesis/Parkwood Ret. 1 v. the limits on the trial court’s ability to submit a Anderson, 462 S.W.3d 212 (Tex. App. El Paso 2015). spoliation instruction tailored to the facts of the case and Telesis involved an injury sustained by a resident of an the restrictions on the admission of evidence relating to independent retirement community. There was the spoliation issues. According to the dissent, the evidence that after someone had called for emergency majority’s error is based on giving too much credence medical assistance a Telesis employee entered the to the purported shift in the focus of litigation from the resident’s apartment, and replaced the resident’s merits to spoliation when there is no evidence that emergency call device because it was not operating. restricting the trial court’s discretion mitigates this risk. The device was later thrown away. There was testimony Finally, the dissent argues that implementing a that the units were not tested weekly and several spoliation framework through rules rather than case law employees knew the device wasn’t working.25 would permit input from lawyers, judges, and professors The trial court gave the instruction that “Parkwood and would yield a uniformity and clarity not attainable Retirement Community had a duty to exercise under judicial decree.21 reasonable care to preserve the call box and a list of replacement units, and that it may presume from the 7. Petroleum Solutions destruction of these items of evidence that they would Petroleum Solutions, Inc. v. Head, 454 S.W.3d 488 have been unfavorable to Parkwood.”26 (Tex. 2014) was issued shortly after Brookshire In reviewing the case, the El Paso Court of Appeals Brothers and reiterated the framework developed in stressed the broad discretion given to trial courts to Brookshire Brothers. The supreme court reversed and remedy acts of discovery abuse, including spoliation. remanded the case based on the trial court’s abuse of The appellate court then summarized part of the discretion in charging the jury with a spoliation framework laid out in Brookshire Brothers before instruction without complying with the standards set beginning its analysis. forth in Brookshire Brothers, which was compounded Using an abuse of discretion standard, the court of by the improper presentation of evidence and argument appeals determined “we must decide whether the trial to the jury.22 court acts without reference to any guiding rules or principles.”27 In reviewing whether there was evidence 8. Wackenhut to support a duty to preserve the call box pre-litigation, Wackenhut Corp. v. Gutierrez, 453 S.W. 3d 917 the trial court reviewed the evidence elicited at trial and (Tex. 2015) involved a car accident and is more notable determined that Telesis knew or reasonably should have on the issue of error preservation than spoliation. known there would be a claim and the emergency call Plaintiff accused the defendant of destroying a video device would be material and relevant. Thus, there was showing the accident and sought a spoliation a basis for the trial court to find intentional spoliation. presumption that the recording would be unfavorable to The court did not address other elements of the defendant. At trial the court found negligent spoliation Brookshire Brothers framework because Telesis had and ordered an instruction. The jury found in plaintiff’s favor. The first issue involved whether the defendant

20 Id. at 28. 24 Id. at 921,922. 21 Brookshire Bros., 438 S.W.3d at 38, 39. 25 Telesis v. Anderson, 462 S.W.3d 212, 254 (Tex. App. – El 22 Petroleum Solutions, 454 S.W. 3d at 20 (holding evidence Paso 2015). of circumstances surrounding alleged spoliation is generally 26 Id. at 251. inadmissible at trial). 27 Id. at 254. 23 Wackenhut, 453 S.W.3d at 921. 5 Discovery in 2016: New Rules, Cases and Technology Chapter 6 failed to preserve any other issues for appeal. Thus the grocery store examined the bag, the crew threw it away. appellate court affirmed the judgment of the trial court. The trial court refused to submit a spoliation instruction In another recent case, Smith v. Williams, 2015 WL and Pilgrim’s Pride appealed. At issue was whether the 3526089 (Tex. App. – Texarkana, May 29, 2015), the employee who threw the bag away knew that the Texarkana Court of Appeals held that the submission of plaintiff would file a claim for her injuries. The trial spoliation evidence and a spoliation instruction court determined based on the facts that the grocer had constituted reversible error. The case involved a no duty to preserve the bag of chicken. The appellate trucking accident and allegedly missing logs and court held that Pilgrim’s Pride had not met its burden to waybills. The trial court heard spoliation evidence at a establish that the grocer had a duty to preserve the pre-trial conference and granted a spoliation instruction evidence. 30 Therefore, it affirmed the trial court’s as a sanction. At trial, evidence regarding spoliation refusal to submit a spoliation instruction. was admitted and the jury rendered a verdict in favor of plaintiff. On appeal the defendant claimed that there V. TECHNOLOGY was no evidence of intentionally destroyed relevant and A. Document/ESI Production material evidence. One of the most interesting and business oriented In Smith the court of appeals review starts by public comments to the Federal Rules Advisory looking not only at the evidence presented at the pre- Committee came from General Electric. In its comment trial sanctions hearing but also at the evidence it laid out the increasing cost of preserving, producing presented at trial.28 The appellate court admitted that and reviewing ESI in litigation. In one example GE put “[I]f the only evidence the trial court had before it was a legal hold on the ESI of 815 custodians in the US and the evidence it had at the pretrial hearing, then our EU. Out of the custodians on hold, 415 had their analysis might be quite different.”29 Noting that the trial documents collected in anticipation of discovery court had admitted evidence related to spoliation as well requests and ultimately only 10% (85) had their as reasons for the absence of the evidence, the appellate documents produced to the other side. The cost of court determined that the trial evidence was relevant to continued preservation and data hosting, review and both the trial court’s determination that [Trucking production of ESI exceeded $22 million. GE makes the Company] had intentionally spoliated evidence and its point in its letter that the U.S. costs of litigation are so ruling on the remedy. Applying the Brookshire dramatic in comparison with other countries that global Brothers framework, the court of appeals held the trial companies, when able, opt out of the U.S. system court abused its discretion in submitting the spoliation through international arbitration. A trend that mirrors instruction and reversed and remanded the case. This domestic litigation move to arbitration. Although most case presents the interesting question on the scope of litigation does not involve the quantity of discovery review of a spoliation instruction. It appears that not referenced in the GE comment, it reflects much of the only will the pretrial hearing be reviewed, but any frustration felt by corporations and businesses that have evidence submitted will likewise be reviewed to been involved in litigation in the courts. determine the appropriateness of submitting the instruction. This case was tried before the supreme 1. Costs of Litigation court Brookshire Brothers decision was published, and In GE’s comment it refers to an informative therefore the evidence of spoliation submitted at trial monograph by the Rand Corporation that attempts to was significant. It is likely that based on the supreme assess the costs associated with different phases of ESI courts admonition in Brookshire Brothers there will not discovery production. 31 The Rand study obtained be significant evidence presented on spoliation that will access to eight very large companies that provided in- be pertinent to appellate review. depth information about e-discovery expenses. The In Pilgrim’s Pride v. Mansfield, 2015 WL 794908 major cost of ESI production is the review of documents (Tex. App. – Beaumont, March 5, 2015), the issue for relevance, responsiveness, and privilege that surrounded the destruction of a bag of frozen chicken. typically accounts for 73% of the production cost. Plaintiff slipped and fell from fluid leaking from a bag Collection consumed only about 8 percent of the costs of frozen chicken. After the meat department of the while processing costs consumed about 19% of the cost.

28 Smith v. Williams, 2015 WL 3526089 at *7. The defendant the evidence in its possession or control will be material and had requested the trial court to reconsider its decision to relevant to that claim.” ctg. Wal-Mart Stores, Inc. v. Johnson, submit the spoliation instruction at the conclusion of the trial 106 S.W.3d 718, 722 (Tex. 2003)). evidence. 31 Pace, Nicholas M. and Laura Zakaras. Where the Money 29 Id. Goes: Understanding Litigant Expenditures for Producing 30 Pilgrim’s Pride, 2015 WL 794908 at *6 (“[S]uch a duty Electronic Discover. RAND Corporation, 2012, at xvi. arises only when a party knows or reasonably should know http://www.rand.org/pubs/monographs/MG1208. that there is a substantial chance that a claim will be filed and 6 Discovery in 2016: New Rules, Cases and Technology Chapter 6

In reviewing the costs in terms of the sources of the documents. The attorneys then decide what further costs, RAND determined that internal expenses were review is necessary on results. generally around 4 % of the total cost, while vendors In Da Silva Moore v. Publicis Groupe, 287 F.R.D. played the dominant role in collection and processing. 182, 193 (S.D. N.Y. 2012), aff’d, 2012, WL 1446534 (S.D.N.Y. Apr.26, 2012) the court approved the use of 2. Keyword Searches predictive coding or TAR where both sides had agreed In many ESI productions keyword search terms are to use it and the disagreement focused on the details. used for identifying potentially responsive ESI. This is The court noted that predictive coding: “now can be particularly true in collecting email where custodians considered judicially-approved for use in appropriate and keywords are identified to narrow the results. cases,” but cautioned that it was not holding that Under this method, attorneys review the result of a predictive coding was required or that the protocol used keyword search using Boolean logic to determine in that case was appropriate for other cases. In National relevance and privilege. This human review is Day Laborer Organizing Network v. US Immigration & becoming a luxury in the face of massive amounts of Customs Enforcement, 877 F. Supp. 2d 87, 109, 111-12 ESI that is produced. As a result, it is not uncommon (S.D.N.Y. 2012) the court reviewed a Freedom of for attorneys to produce massive amounts of Information Act request and questioned the information that have not been completely reviewed. effectiveness of keyword searches stating: “there is Lawyers are beginning to turn to technology and increasingly strong evidence that [k]ey word predictive coding to reduce cost in the production search[ing]is not nearly as effective at identifying process.32 relevant information as many lawyers would like to believe.” In contrast the court encouraged the attorneys 3. Predictive Coding a/k/a Technology Assisted to use predictive coding. Several courts have followed Review (TAR) with general approval of predictive coding. Predictive Coding or TAR is not for every case, but Hinterberger v. Catholic Health Sys., Inc., No. 08-380, it can be a cost saver in large ESI production cases. 2013 WL 2250603 at *3(W.D. N.Y. May 21, 2013); With the cost of review so high, there has been a move Global AeroSpace Inc. v. Landow Aviation, L.P., No. away from human review to find computerized CL-61040, 2012 WL 1431215, at *1(Va. Cir. Ct. Apr. approaches. Predictive coding is a type of automated 23, 2012). discovery review that classifies documents according to Three years after Moore, Judge Peck, who issued how well they match the concepts and terms in sample the opinion in Moore, reviewed a requested TAR documents. It involves a combination of people, protocol and concluded: “the case law has developed to process and technology enabling the technology to learn the point that it is now black letter law that where the which documents are relevant by analyzing a small producing party wants to utilize TAR for document group of documents that attorneys have manually review, courts will permit it.” Rio Tinto PLC, v. Vale reviewed and coded. 33 Attorneys initially examine S.A., et. Al. No. 14-3042, 2015 WL 872294, at *127 samples of documents from the review set and make (S.D.N.Y. Mar. 2, 2015). However, the Rio Tinto determinations about whether they are relevant, opinion focuses on the key dispute that arises in many responsive or privileged. Using those decisions, the cases, how transparent must a party be to employ TAR? software assigns scores to each document in the review How transparent and cooperative must the parties be set representing the probability that a document matches with respect to the seed or training set(s)? the desired characteristics. Quality assurance checks In Rio Tinto, the Court noted that where parties do occur as documents are reviewed by attorneys and not agree to transparency, the decisions are split. See, refined by the software to assign a score. This is an e.g. John M. Facciola & Philip J. Favro, Safeguarding iterative process that eventually stabilizes and provides the Seed Set: Why Seed set Documents May Be Entitled an overall reliability score. The goal is not 100% but to To Work Product Protection, 8 Fed. Cts. L. Rev. have the predictive coding program agree with the 1(2015); In re Biomet M2a Magnum Hip Implant Prods. attorney’s coding for a predetermined percentage of Liab. Litig., No. 12-2391, 2013 WL 6405156, at *1 documents. (for example, 85%). Once the software is (N.D. Ind. Aug. 21, 2013). (court restricted the trained it then reviews the entire data set for relevant discoverability of a party’s seed set, because the

32 E-Discovery Bulletin, Predictive Coding: It’s Here to 33 Minnesota E-Discovery Working Group, Using Stay, June/July2014practicallaw.com, Technology To Facilitate Production Of E-Discovery, 40 www.skadden.com/sites/default/files/publications/LIT_June Wm. Mitchell L. Rev. 588, 614 (2014). July14_EDiscovery Bulletin.pdf.

7 Discovery in 2016: New Rules, Cases and Technology Chapter 6 production of privileged or nonresponsive materials was private part of a Facebook page. Courts have prohibited outside the scope of discovery). overly broad, fishing-expedition, type searches. In re In Rio Tinto the Court approved the parties’ agreed Indeco Sales, Inc., No. 09-14-00405, 2014 WL 5490943 protocol but also stated: “it is inappropriate to hold TAR *4 (Tex. App. – Beaumont October 30, 2014) (request to a higher standard than keywords or manual review. overly broad where no limit on scope of request for Doing so discourages parties from using TAR for fear photos and posts from Facebook account); Abrams v. of spending more in motion practice than the savings Pecile, 83 A.S. 3d 527 (N.Y. App. Div. 2011). from using TAR for review”. Id. at *3. Without Generally, to obtain access to the private portion of a endorsing any particular vendor or protocol, the court Facebook account, the public portion or some other included the parties’ explanatory cover letter and evidence must point to potentially relevant evidence in Stipulation and Order Re: Use Of Predictive Coding In the private portion of the site. See McCann v. Discovery in his Opinion and Order as a matter of Harleysville Ins. Co. of New York, 78 A.D. 3d 1524, interest to the e-discovery community. 1525, 910 N.Y.S.2d 614, 615 (N.Y. App. Div. 2010) Although substantially less than a human review, (requiring movant to establish a “factual predicate” predictive coding can still be costly. Thus, to avoid based upon public portions of plaintiff’s Facebook costly motion practice over the procedures employed in account in order to obtain discovery of private portions TAR, it would be wise for counsel to enter into an of the account). agreement with opposing counsel and/or get approval The easiest way to obtain access to the private from the court as to anticipated TAR methodology. portion of a Facebook account is by agreement. An Topics of negotiation include statistical sampling agreement to produce social media documents should methods, confidence levels, and precision/recall. Seed include the underlying information concerning set identification used to train the computer program is username, password, email and the specific requests often a source of contention as well. Opposing counsel (wall posts, email, photos, friends lists, etc.). Failing an will generally want to see the seed set including those agreement, the court can order the party to provide such documents identified as nonresponsive. A claw-back information. Finally, service providers can be agreement with opposing counsel should be in place approached, but almost all will require a subpoena or ahead of any production. court order requiring disclosure of the information. The The drawbacks of predictive coding include its Stored Communication Act (SCA) 35 applies to limitations with image-based files, videos, audio files, providers of communication services and may affect the and excel spreadsheets or other documents containing response of the provider. In Crispin v. Christian mostly numbers. It also can result in costly motion Audigier50, a federal court in the Central District of practice when both sides cannot agree on the protocol. California quashed subpoenas to Myspace and Deciding which predictive coding programs or vendors Facebook on the grounds that some of the content on to use can be challenging and time consuming. those sites is protected by the SCA. 717 F. Supp. 2d 965 (C.D. Cal. 2010). B. Social Media Production A recent Pew Research survey found that 52% of VI. COST MANAGEMENT online adults now use two or more social media sites.34 In the ever changing world of e-Discovery, law Other platforms like Twitter, Instagram, Pinterest and firms of all sizes are looking for ways to effectively and LinkedIn all saw significant increase in user efficiently handle the plethora of data involved in engagement over the past year. If you thought Facebook litigation. In the case of small and mid-size law firms, was limited to the millennial generation you would be these challenges are magnified. There are, however, a surprised to learn that more than half of all online adults number of easy methods for helping to reduce costs. 65 and older (56%) use Facebook. Fifty-three percent In light of the recent update to the Federal Rules of of young adults between 18–29 use Instagram, and half Civil Procedure (FRCP), the most basic and inexpensive use the site daily. Not surprisingly, 42% of online way to effectively manage the discovery process is women use Pinterest while only 13% of online men. through the “Meet and Confer” session. Using this The significant use of social media is a source of session to narrow the scope of discovery and outline significant evidence in certain types of cases and is production protocols will reduce data volumes which becoming increasingly important. will greatly reduce the amount of time and money spent There is often a clash in social media cases on the on e-Discovery. In many cases, lawyers ask for data in extent of discovery and whether a right to privacy exists. a very broad manner to ensure that all evidence will be These situations arise when a party seeks access to the analyzed, but then have the burden of trying to review

34 Maeve Duggan et al., Social Media Update 2014, PEW http://www.pewinternet.org/files/2015/01PI_SocialMediaUp RESEARCH CENTER (January 9, 2015), date20144.pdf 35 18 U.S.C. Chapter 121 §§ 2701). 8 Discovery in 2016: New Rules, Cases and Technology Chapter 6 documents that have little to no impact on the merits of production parameters early, and to prioritize the data the case. Instead, focus specifically on the timeframe, based on the most important sources. key issues, and key custodians in order to receive evidence that is more likely to have meaning. Being very narrow and specific in your production request will help to ensure that you eliminate voluminous amount of data being sent to you. This early step, if utilized properly, is the single greatest step that a law firm engaged in litigation can take. It also limits the amount of data that can be produced to you – eliminating the need to expend money on reviewing a large production. Technology has come a long way in recent years. A cost effective method for effectively managing the discovery process is the utilization of technology assisted review (TAR). The TAR process can be broken into two main methods, each of which can be conducted independently of the other, allowing for a customized methodology. The first method of TAR is predictive coding. The law firm Skadden, Arps, Slate, Meagher & Flom LLP defined predictive coding as ”the use of a software program to identify documents that are relevant to a particular case or issue.” 36 Using predictive coding directly minimizes the review process by automatically removing irrelevant documents. Secondly, TAR can be utilized for the grouping of “like” documents. This process places documents into groups of documents that are similar, either by topic, content, or file type, to streamline the review process. This step requires a good understanding of the data collected, but can be an inexpensive alternative to more robust predictive coding processes. Whether TAR is used or not, consider as many ways as possible to reduce the volume of data. For example, there are relatively inexpensive software to de- duplicate data and create a separate batch of near- duplicates. Obviously, being able to remove duplicate data will reduce the number of documents requiring review. Further, if near duplicate documents can be tagged the same as its twin, you will be able to essentially tag two documents despite only spending time reviewing one. Keep in mind that there are numerous low cost software applications available to cull and review documents. Many come in desktop versions and do not require hosting by a third party. Assuming the data volume does not require a third party to process the data, it can be loaded directly into a desktop system and managed by you. The most important tips when determining the best method for effective management of the discovery process is to think logically, establish scope and

36 https://www.skadden.com/sites/default/files/publications/LI T_JuneJuly14_EDiscoveryBulletin.pdf 9