We update most of our Scorecards and Cheat Sheets on a real-time basis, because we have a good handle on the new decisions as they arise. Some of them, however, are updated more sporadically, mostly because they involve issues that go beyond purely drug/device matters. Our cheat sheet listing favorable e-discovery decisions involving plaintiffs’ social
Not exactly a catchy title. And probably not enough to compete with all the other distractions of this time of year – wandering through a snow-covered field to chop down a Christmas tree, hand-dipping your own candles to give as gifts, delicately decorating gingerbread men baked from scratch. No wait – we really meant setting up the artificial snowing Christmas tree (nothing says happy holidays like millions of tiny pieces of Styrofoam floating through your home), waiting to see if Amazon is going to get you the complete second season of Shameless on DVD before the 25th, and popping a Mrs. Smith’s frozen apple pie in the oven. Whether your holidays are like the former, the latter or somewhere in between, you probably have something more pressing to attend to than reading this blog. So, we thought we’d give you something to think about for the future – a proposed change to Federal Rule of Civil Procedure 37 regarding when sanctions can be imposed for failure to preserve evidence. See Excerpt from Report of Civil Rules Advisory Committee here.
Honestly, we just happened upon this ourselves and haven’t had much time to fully digest all the implications. As with any rule change, the real ramifications won’t be known until the courts start to apply it. But since the proposed change looks to be slated for discussion early in the new year by the Civil Rules Advisory Committee, we thought we’d take a look.
Bexis attended the annual spring meeting last week. PLAC meetings are almost always good for at least one blog post. This is it.
In the high-tech morass that is ediscovery, parties have tried various ways to do something about the disparity between cost and benefit. An approach is to attempt to use new technology to fix – or at least ameliorate – the problems caused by the explosion in electronic information caused by existing technology.
One such proposed technological fix is called “predictive coding.” Googling that phrase yields far more technical information than we could possibly provide (or maybe even understand), so in the nutshell of a very small nut, predictive coding takes advantage of artificial intelligence software that enables a computer to learn from its mistakes and adjust its processes accordingly. The need for attorneys to review produced edocuments is a major aspect of excessive ediscovery cost.
Predictive coding can reduce that cost by using computers to extrapolate actual attorney review of a small subset (a “seed set”) of edocuments over the entire proposed production of documents. The attorneys review the seed set – then the computer does a similar set of documents based upon the attorney coding. The attorneys review that set and correct errors. The computer does another set, having incorporated the attorney’s revisions. That review process is repeated however many times, until everyone is satisfied the error rate (both false positive and false negative) is acceptable. The vendors claim predictive coding ultimately makes fewer mistakes than review by actual human attorneys. Take those financially interested claims with however many grains of salt you believe they deserve.
But until recently, no court anywhere had authorized the use of predictive coding in actual ediscovery. Now that’s changed. A presentation we heard at the PLAC spring meeting last week (by David Cohen of Reed Smith), mentioned four decisions in three cases where predictive coding had been judicially authorized as an ediscovery tool.
The oldest of them was decided less than three months ago. In Moore v. Publicis Groupe, ___ F. Supp.2d ___, 2012 WL 607412 (Mag. S.D.N.Y. Feb. 24, 2012), a magistrate judge declared “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” Id. at *1. In Moore the parties had initially “agreed” to use predictive coding, but disputes then (predictably?) arose, requiring judicial resolution. Perhaps not so coincidentally, the magistrate before whom that agreement was reached had personally written an article on the benefits of predictive coding, id. at *2, and lawyers sure pay attention when their judge starts quoting his/her own articles.
Here are a few updates to some of our previous posts.
First, we posted about In re Aspartame Antitrust Litigation, ___ F. Supp.2d ___, 2011 WL 4793239 (E.D. Pa. Oct. 5, 2011), as we considered the case a promising development insofar as taxation of costs of production could exercise a restraining influence on…
After getting the latest favorable Facebook discovery decision in Largent v. Reed, and seeing that Largent cited to a recent New York case that we didn’t know about, we’ve come to the (probably belated) conclusion that the fast-developing area of e-discovery for defendants with respect to social media maintained by plaintiffs is worthy of…
Here’s a rarity for us – two e-discovery posts in a row. This one’s about another of our favorite topics, e-discovery for defendants.
We’ve just been gifted with (thanks, Dan) a downright scholarly opinion on the discoverability of a plaintiff’s relevant Facebook information from a Court of Common Pleas in rural Pennsylvania. The case is Largent v. Reed, No. 2009-1823, slip op. (Pa. C.P. Franklin Co. Nov. 8, 2011). It’s not a drug/device case (it’s an auto accident), but if you’re seeking discovery of a plaintiff’s Facebook account, it’s well worth the read. In particular, there’s probably the best discussion of how Facebook works, from a privacy – or non-privacy, as would be a better term – perspective than any other opinion we’ve yet seen. The discussion of Facebook, its privacy settings, tagging, and the like, is on pages 3-5.
The reason for the Facebook discovery in Largent is typical: The plaintiff “testified that she suffers from depression and spasms in her legs, and uses a cane to walk.,” but on her Facebook page, she posted “several photographs that show her enjoying life . . . and a status update about going to the gym.” Slip op. at 6,8. Obviously the latter is relevant to debunk the former (although, amazingly, the plaintiff contested that, too).
Briefly, the legal conclusions in Largent are these:
(1) A plaintiff’s social networking is discoverable.
It is clear that material on social networking websites is discoverable in a civil case. Pennsylvania’s discovery rules are broad, and there is no prohibition against electronic discovery of relevant information. Furthermore, courts in other jurisdictions with similar rules have allowed discovery of social networking data.”
Ediscovery is dreadfully expensive. Plaintiffs are dedicated to keeping it that way, as they know that anything that drives up a defendant’s litigation costs (and mass tort ediscovery falls disproportionately on defendants) increases the settlement value of even meritless cases – and any mass tort has lots of meritless cases.
All too often judges, not…
The program at a Product Liability Advisory Council, Inc. (“PLAC”) meeting are always interesting, and the one just before Columbus Day was no exception. It focused on social media and e-discovery. Here are some highlights:
“Patent” Model Order on E-Discovery
Everybody knows the expense of e-discovery in modern litigation is out of control. Well, it’s just as much a problem in patent cases as in mass torts, but at least the patent bench and bar are taking concrete steps to do something about it. The Advisory Council for the Federal Circuit created a special subcommittee with the sole aim of creating a model court order to govern e-discovery. Here’s a copy of the model order, which the special committee unanimously endorsed.
The model order was introduced a couple of weeks ago by Chief Judge Rader of Federal Circuit, at a Texas judicial conference. For those interested in a more complete discussion, here’s a copy of Judge Rader’s talk (it’s nominally about patent litigation, but mostly about e-discovery). This order has features that we’re certain could be usefully applied to e-discovery in all types of litigation, especially mass torts. Specifically, the model order provides:
- “Disproportionate” e-discovery requests are grounds for cost shifting.
- Absent “good cause,” metadata (all that stuff lurking in the background of most electronic documents) is not discoverable – period.
- Discoverable background information about a document is limited to when it was sent/received and the distribution list.
- No more “general” demands for production of email.
- Production of email is limited to “specific issues” that must be separately stated in any request.
- Email production is to be “phased,” and may only take place after exchange of “initial disclosures” and “basic documentation.” A mass tort case would similarly tie email production to specific claimed defects or acts of negligence.
- No blanket email production. Specific custodians, search terms, and time frames must be stated to limit the scope of production.
- Unless the parties agree, email requests are presumptively limited to five custodians per producing party and five search terms per custodian.
- With leave of court, email production of an additional five custodians per producing party and five more search terms per custodian may be had. Anything more than that, and the requesting party must pay for the extra e-discovery itself.
- Limits on overbroad search terms are imposed, and enforced by cost-shifting.
- Privileged e-discovery cannot be used by the requesting party.
- There is no waiver of privilege by the inadvertent production of e-discovery
- “Mere production” of e-discovery as part of a “mass production” is not a waiver for “any purpose.”
We think this model order, and particularly its hard caps, an excellent start to taming the e-discovery monster, which Chief Judge Rader said in his talk “endanger[s] the entire system” and had become “such a burden” that “outweigh[s] any benefit.” The basic foundations of the model order: (1) hard numerical limits; (2) specificity of requests, and (3) cost-shifting for “disproportionate” e-discovery demands, are universal. Since the problems with e-discovery extend far beyond patent cases, we recommend the model order, with minor subject-matter-specific modifications, for use in any litigation, and especially mass torts.
Last August we posted about a notable clerk’s order in the Eastern District of Pennsylvania that taxed, as costs, several hundred thousand dollar’s worth of e-discovery expenses against the losing party in an antitrust case.
We thought that was notable because, in prescription medical product liability litigation, our clients’ e-discovery costs are typically orders of magnitude greater than anything the other side has to spend. Thus, when it comes to taxing e-discovery as costs that the prevailing party can recover, we’re probably going to have lots more costs to tax than does the other side when they win.
Anyway, we’re now able to report that the clerk’s opinion has been largely affirmed by the District Court, which strengthens the precedential value of the taxation order immeasurably. See In re Aspartame Antitrust Litigation, No. 2:06-cv-01732-LDD, slip op. (E.D. Pa. Oct. 5, 2011).
The clerk awarded the three prevailing defendants some $565,000 in e-discovery costs, on the basis of a “heavy presumption” in favor of taxation of costs generally against the loser. The District Court (Davis, J.) affirmed about 90% of the clerk’s award. The affirmance contains a useful discussion of the current split of authority about the taxability of e-discovery costs, and what particular e-discovery expenses are properly taxable. Aspartame, slip op. at 3-6 (collecting cases). Siding with the opinions that support taxation of e-discovery costs, the court emphasized that all parties benefited from various efficiencies and savings arising from the availability of e-discovery, and significantly the court applied the same burden of proof in e-discovery as in other types of cost taxation. Id. at 2-3.
We’ve complained before about the horrendous – and more than that, almost entirely one-sided – expense of ediscovery in prescription medical product liability litigation. It just seems to be getting worse. It’s almost always a free shot for the other side, since plaintiffs simply don’t have electronic databases. The only way to make the other…