ACEDS-Recommind 1-28-15 slides

1. Recommind Proprietary & Confidential1
The 2014 eDiscovery
Cases You Need
to Know:
Lessons and Best Practices
from a Pivotal Year

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SPEAKERS
U.S. District Judge
United States District Court,
Western District of Texas
Hon. Xavier Rodriguez
General Counsel, Military Space
Lockheed Martin Space Systems
Shawn Cheadle
Senior Discovery Counsel
Recommind
Philip Favro
Partner
Pillsbury Winthrop Shaw Pittman
David Stanton

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Preservation and Production of Cloud and Mobile Device
Data
The Impact of Privacy, Privilege, and Work Product on
eDiscovery
Guidelines for Using Predictive Coding
Resources
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AGENDA
Q & A5

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PRESERVATION AND
PRODUCTION OF CLOUD &
MOBILE DEVICE DATA

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o “The duty to preserve “includes an
obligation to identify, locate, and
maintain, information that is relevant
to specific, predictable, and
identifiable litigation.”
Fed. R. Civ. P. 26(b)(1); Apple v. Samsung, 881
F. Supp. 2d 1132 (N.D. Cal. 2012)
THE CURRENT LAW ON PRESERVATION AND
PRODUCTION IN DISCOVERY
o “Parties may obtain discovery
regarding any nonprivileged matter
that is relevant to any party’s claim
or defense . . . subject to the
limitations imposed by Rule
26(b)(2)(C).”

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Every one of the custodians were asked the explicit question do
they use these devices for personal use — for work-related use,
and they disavowed it, some multiple times. . . . several high
priority custodians [later confirmed though] that they used their
personal mobile devices for work-related purposes.
Small v. Univ. Med. Ctr. of S. Nev. (D. Nev. Aug. 18, 2014)
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PRESERVATION AND PRODUCTION OF
RELEVANT MOBILE DEVICE DATA
“

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Tellermate knew from the outset that its termination of the Browns was
premised on their allegedly inadequate sales performance, making the
performance of other sales managers or representatives crucial evidence in the
case . . . . it should have been obvious from the outset that failing to preserve
the integrity of [the salesforce.com] information would threaten the fairness of
the judicial proceedings.
Brown v. Tellermate Holdings (S.D. Ohio July 1, 2014)
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PRESERVATION AND PRODUCTION OF
RELEVANT CLOUD STORED DATA
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THE IMPACT OF PRIVACY,
PRIVILEGE, AND WORK
PRODUCT ON EDISCOVERY

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GREATER PRIVACY PROTECTION OVER MOBILE DEVICE
DATA
“Plaintiffs argue they are entitled to inspect and
image the cell phones of the individual defendants
under the broad scope of discovery . . . The
implication of the individual defendants’ privacy
interests in the data stored on their cell phones . . .
persuades the Court to deny plaintiffs’ motion.”
Bakhit v. Safety Markings, Inc. (D. Conn. June 23, 2014)

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Barko was able to pursue the facts underlying KBR’s investigation. But
he was not entitled to KBR’s own investigation files. As the Upjohn
Court stated, quoting Justice Jackson, ‘Discovery was hardly intended
to enable a learned profession to perform its functions . . . on wits
borrowed from the adversary.’
In re Kellogg Brown & Root, Inc., 756 F.3d
754 (D.C. Cir. 2014)
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LAWYER-CLIENT PRIVILEGE STILL PROTECTS
INTERNAL INVESTIGATIONS

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ARE LITIGATION HOLD
NOTICES PRIVILEGED OR
WORK PRODUCT?
U.S. ex rel. Barko v. Kellogg Brown &
Root (D.D.C. Nov. 20, 2014)
[T]he litigation hold notices at issue here were
sent to . . . ‘all KBR employees’ . . . [and]
follow-up emails encouraged employees to
share some of the litigation hold notices with
other employees who may not have received
or read the first notice. No warning was given
that these notices should be disseminated no
more widely than necessary. No directive was
issued telling employees not to discuss the
litigation hold notices outside the company.
“

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“It was pointed out to the district court that attorney work product
claims were made relative to this period, before Glenmark’s later
institution of a litigation hold. It was reasonable for the district court
to infer that some destroyed emails related to issues for which
litigation was expected by Glenmark.
Sanofi-Aventis Deutschland GmbH v. Glenmark
Pharms., 748 F.3d 1354 (Fed. Cir. 2014)
THE INTERPLAY BETWEEN WORK PRODUCT
AND THE DUTY TO PRESERVE

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GUIDELINES FOR USING
PREDICTIVE CODING

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GENERALLY NO OBLIGATION TO
DISCLOSE SEARCH METHODOLOGIES
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[T]he court is not normally in the business of
dictating to the parties the process that they should
use when responding to discovery. If our focus
were on paper discovery, we would not (for
example) be dictating to a party the manner in
which it should review documents for
responsiveness or privilege.
Dynamo Holdings v. Comm'r, No. 2685-11, 143 T.C. No. 9, 10 (2014).
“

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The reliability and utility of predictive coding depends upon
the process that takes place in the initial phases . . . . [a]nd
for this entire process to work, I think it needs transparency
and cooperation of counsel.
Fed. Hous. Fin. Agency v. JPMorgan Chase,
11-cv-05201 (S.D.N.Y. July 24, 2012)
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COURTS MAY STILL ORDER DISCLOSURE OF
PREDICTIVE CODING

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“The Magistrate Judge believes that he is . . . . allowing Plaintiff
to switch horses in midstream. Consequently, openness and
transparency in what Plaintiff is doing will be of critical
importance . . . . The Magistrate Judge expects full openness
in this matter.
Bridgestone v. IBM, (M.D. Tenn. July 22, 2014);
see also Progressive v. Delaney (D. Nev. May 19,
2014)
DISCLOSURE MAY BE REQUIRED WHEN MODIFYING
STIPULATED SEARCH METHODOLOGIES

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BLENDING OTHER SEARCH
METHODOLOGIES WITH
PREDICTIVE CODING
o Recent cases that have approved
blending predictive coding and other
search methodologies include
Bridgestone v. IBM (M.D. Tenn. July
22, 2014) and Biomet I (N.D. Ind. Apr.
18, 2013)
o Indep. Living Ctr. of S. Cal. v. City of
L.A., 2:12-cv-00551-FMO-PJW, at *1
(C.D. Cal. June 13, 2014) ECF No.
371, rejected the blending of search
terms and predictive coding

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The Court ordered the City…to use a predictive coding system
for identifying the 10,000 most relevant documents in its
databases…Plaintiffs may seek production of additional, less
relevant documents but will be required to pay 100% of the
City’s costs in producing them…
Indep. Living Ctr. of S. Cal. v. City of L.A.
(C.D. Cal. June 13, 2014)
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COST SHIFTING HAS BEEN ORDERED IN
PREDICTIVE CODING CASES

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ARE VALIDATION MEASURES
REQUIRED UNDER THE RULES?
The quality assurance step…does not exist in
traditional production, i.e., reviewing the documents
and producing them to the other side.. Nor is it a
feature in key word searches…It is a feature available
in predictive coding which quantifies the level of
accuracy in the search…If Plaintiffs truly believe that
quality assurance step is important, they should pay
for employing it by splitting the costs with the City.
Indep. Living Ctr. of S. Cal. v. City of L.A.
(C.D. Cal. June 26, 2014)
“

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RESOURCES

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RESOURCES
Philip J. Favro & Shawn Cheadle
The Impact of Oracle America v. Google: Are
You Certain Your Emails Are Privileged?
ACC DOCKET, Jan/Feb 2014, at 72
Hon. John M. Facciola & Philip J. Favro,
Safeguarding The Seed Set: Why Seed Set
Documents May Be Entitled to Work Product
Protection,
2015 Fed. Cts. L. Rev. ___ (2015)

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RESOURCES
Guidelines Regarding the Use of Predictive
Coding
http://www.ctrlinitiative.com/home/protocol/
Predictive Coding Case Law Index
http://www.ctrlinitiative.com/home/resources/

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http://www.recommind.com/ mind-over-
matters
RESOURCES

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Q & A