The Rule 26(f) conference of parties has been described as the lynchpin of the e-discovery rules. See  Craig  Ball, Musings on Meet and Confer (2007). In fact, “[i]f there is a master blueprint to e-discovery under the Federal Rules, it lies in amended Rule 26(f) and the accompanying Advisory Committee Notes.” S. Gensler, “Some Thoughts on the Lawyer’s E-volving Duties in Discovery,” 36 N.Ky.L.Rev. 521, 522 (2009). “Perhaps no change in the Federal Rules is more dramatic than the one associated with the changes to the meet and confer requirement of Rule 26(f).” Moze Cowper and John Rosenthal, “Not Your Mother’s Rule 26(f) Conference Anymore,” 8 Sed. Conf. L. J. 261, 261 (2007). In fact, “[i]f there is a master blueprint to e-discovery under the Federal Rules, it lies in amended Rule 26(f) and the accompanying Advisory Committee Notes.”

This may be because “[t]he overriding theme of the recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”  Board of Regents of Univ. of Nebraska v. BASF Corp., 2007 WL 3342423, at *5 (D.Neb. 2007); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 361 n. 3 (D.Md. 2008) (citing BASF and other decisions).

As the Court in Hopson v. Mayor & City Coun. of Baltimore, 232 F.R.D. 228, 245 (D.M. 2005), wrote that “[i]t cannot be emphasized enough that the goal of the meeting to discuss discovery is to reach an agreement that then can be proposed to the court.”

The Technology Committee of the Maryland State Bar Association presented a mock Rule 26(f) Conference of the Parties at the June 2011 Annual Meeting. The Conference was based on a hypothetical student exercise that I use as a teaching exercise in my ESI seminars at the University of Maryland and University of Baltimore Schools of Law.

The mock conference is of particular interest because forensic experts participated. “Just as Georges Clemenceau said that war is too important to be left to the generals, attorneys frequently cannot ‘go it alone,’ and it is important to have a multidisciplinary approach to a conference of the parties.” M. Berman, C. Barton, and The Hon. P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA Jul. 2011), 422.

The mock exercise was conducted in two parts. In the first part, after an introduction and setting the stage for those who are not familiar with ESI, two experienced attorneys, supported by their forensic experts and a legal assistant, met with their “client” to prepare for the conference. After a “critique” of that discussion, those attorneys presented their discovery plan to two opposing attorneys and their forensic expert in the Rule 26(f) conference.

The fact pattern involved an asymmetric, high-stakes commercial dispute between ABC, a “mom and pop” company with antiquated systems, but important ESI, which was suing XYZ, a high-tech manufacturing company, with sophisticated “24/7” systems. XYZ had shipped a critical medical device that turned out to be the wrong size, to the wrong location, proximately causing a patient’s death. The issues included a missing e-mail and a decade-long, electronic course of conduct.

The video of the mock conference begins with my introduction and can be found in its entirety through the Maryland State Bar Association web site. After following the link pasted above, it is necessary to click the link titled “Nuts & Bolts of E-Discovery,” register with host site for Gore Brothers Reporting, and type “edisco” in the “promo code” box in order to access the video. The video lasts approximately 2-½ hours.

Participants included the committee chair, W. Lawrence Wescott, II, Esq., and David Kinzer, Esq., Ober Kaler; Francis R. Laws, Esq., Thomas & Libowitz, P.A.; J. Mark Coulson, Esq., Miles & Stockbridge, P.C.; Howard Feldman, Esq., Whiteford Taylor Preston, LLP; Michael MacWilliams, Esq., Venable LLP; Marc Hirschfeld, Esq., Precision Legal Services; James Shoemaker, Miles & Stockbridge; and, Lynda Anderson, Lex On Demand.

POSTSCRIPT

Sharon Nelson’s review in “Ride the Lightning,” describes the book as an “excellent resource.”

In 1968, Dr. William A. Nolen wrote “The Making of a Surgeon” (Mid-List Press 1968, 1990):

How do you make a surgeon? Not by the preliminaries, the four years of college and four years of medical school that have to be gone through to earn an M.D. degree, but by the five, six or seven years that a man [or woman] spends after medical school learning the surgical trade.

Id. He suggested that “[t]he transformation is a slow process. . . . Not by big jumps, just small steps forward.”  Dr. Nolen wrote:

It’s sad that all through a book on surgery, mistakes and error should play such a prominent role.  Patients like to believe doctors are infallible. . . .  Unfortunately, that’s not the case. Not some, not most, but all doctors, at one time or another, make errors.  This is the nature of medicine. It’s isn’t an exact science. .  . . [W]e made errors. We operated when we shouldn’t have, didn’t operate when we should have; sometimes we performed the wrong operation; occasionally, we chose the right operation but did it poorly.  We made all these errors. But, to keep the proper perspective, not often.  We did our damnedest to avoid mistakes – we took every precaution we could to eliminate errors and struggled to keep them down to the absolute minimum.  And for every patient we hurt by one of our mistakes, we did, I hope, help hundreds.

Id. at 57, 65.  The author described “[t]he patient, or better, victim,” of his first major surgery, an appendectomy.  Id. at 18.  When handed the scalpel, all of his confidence disappeared and he could not determine where to make the incision.  Then, his effort to tie off the base of the appendix failed, contaminating the surgical area. Although the recovery was more complicated, the patient survived.  Dr. Nolen concludes: “If he had died, I think I would have given up surgery for good.”

What does that have to do with ESI and software glitches?  “Especially in the highly complex world of e-discovery, even with good faith efforts, it is very easy to fail to preserve or lose relevant information by inadvertence.”  P. Grimm, M. Berman, et al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413,  454 (2008).

Perfection Is Not, and Has Never Been, the Standard of Litigation

In The Pension Committee of the University of Montreal Pension Plan v. Banc of America
Securities, LLC, 685 F.Supp.2d 456, 461 (S.D.N.Y. 2010), the court wrote:

In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection.

In a forthcoming book, The Hon. Paul W. Grimm wrote that the Advisory Committee Note to Fed.R.Evid. 502(b) suggests that the Rule “does not require perfection. . . merely that what was done in a particular case was reasonable.”   P. Grimm, “The 10 Most Important Things You Need to Remember About FRE 502,” in M. Berman, C. Barton, and P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA forthcoming Aug. 2011), 416-17.

Thus, “[i]t would be utopia to expect perfection from everyone: police, lawyers, judges, and society in general. We can take note, however, that while we often strive for perfection it is seldom achieved.”  State v. Scott, 699 S.W.2d 760, 764 (Mo. App. 1985)(failure of police to dictate a complete inventory on property bag)(subsequent history omitted); accord Southern Capitol Enters., Inc. v. Conseco Servs., L.L.C., 2008 U.S. Dist. LEXIS 87618, at *7 (M.D. La. Oct. 24, 2008)(in an “ongoing electronic discovery dispute,” the court wrote that “[p]erfection in document production is not required. . . .”); Frazier v. Layne Christensen Co.,  2005 WL 372253, at *4 n. 3 (W.D. Wis. 2005) (in a proceeding for violation of protective order, the court wrote that “[t]his court doesn’t expect perfection from counsel or their staff when thousands of documents are being exchanged. . . .”);  Gilmore v. Oil and Gas Conservation Comm’n., 642 P.2d 773, 781 (1982)(“Appellant seems to expect perfection. Justice was accomplished here, as much as could be under the circumstances. This litigation should end.”)(administrative appeal); State v. Turner, 21 N.C.App. 608, 205 S.E.2d 628 (1974)(“Certainly, the bench and bar cannot expect perfection in the transcription of trial court proceedings, particularly jury instructions.”); Williams v. Russell, 419 F.2d 1092, 1094 (6^th Cir. 1969)(in denying habeas petition for alleged failure to request a severance and call a specific witness, the court wrote “[w]e just simply cannot hold lawyers to perfection to guarantee that they will be absolutely free from error. . . .”), cert. denied, 398 U.S. 942 (1970); Dolley v. Ragon, 68 Cal.App. 223, 226, 228 P. 665, 666 (1924)(contempt proceeding against attorney for misrepresenting facts in the record)(“Every one knows that in the course of litigations in which numerous details of extensive transactions have to be referred to, as they were referred to in this case, sometimes counsel, and sometimes the judges of the court, will commit errors, whereby a misstatement of fact may be made, or a fact may be omitted which ought to have been included in the statement. That occurs every day. No one reasonably expects perfection in such matters, and no one reasonably charges corrupt intention in the making of such errors.”); U.S. v. Foster Lumber Co., Inc., 429 U.S. 32, 52 (1976)(“No one expects perfection in income taxation.”)(Blackmun, J., dissenting).

In short, “[t]he goal of our system of justice is fairness, not perfection. We live in an imperfect world and it is unrealistic to expect perfection in the courtroom.”  Gould v. Charlton Co., Inc., 929 S.W.2d 734, 739 (Ky. 1996)(discussing jurors).  Thus, “[s]ometimes, despite everyone’s best efforts, mistakes are made during the course of a trial. We visit an endless array of trial errors with a paradigm that looks for fairness rather than perfection. We do not expect perfection.”  People v. Biggerstaff, 287 Ill.App.3d 813, 818, 679 N.E.2d 118, 121 (1997); accord Bush v. Gore, 531 U.S. 98, 143 (2000)(“we live in an imperfect world. . . .”)(Ginsburg, J., dissenting)(Presidential election).

Sanctions Are Reported To Be At An “All Time High”

It is in this context that a recent article states: “E-discovery sanctions are at an all-time high.” D. Willoughby, R. Jones, and G. Antine, “Sanctions for E-Discovery Violations: By The Numbers,” 60 Duke L.J. 789, 790 (2010).  “[T]here has been a significant increase in
both motions and awards since 2004.” Id. at 790-91.  While “[m]arquee e-discovery
disaster cases. . .  are towering reminders of the most severe sanctions. . . [o]f greater concern to the average practitioner is the increasing frequency of sanction decisions, an issue most recently illustrated by Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, in which all thirteen plaintiffs were sanctioned for e-discovery failings not rising to the level of intentional or willful conduct.” Id. at 791.  Mr. Willoughby and his colleagues conclude that “appropriate consideration should be given to the complexity of e-discovery in ruling upon the increasingly frequent e-discovery sanction motion.” Id. at 828.

Sanctions and the Brady Analog

Sanctions motions in civil cases have “developed a civil procedure analog to a Brady [v. Maryland, 373 U.S. 83 (1963)] attack on alleged prosecutorial misconduct.   In
short, under the sanctions rules, civil litigators could obtain a tactical advantage by alleging deficiencies in the performance of opposing counsel.  The opposing attorney, countering such allegations, was often tempted to respond in kind.  Civility suffered.”  M. Berman, “The Sedona Conference Cooperation Proclamation” ABA Technology for the Litigator, reprinted in M. Berman, C. Barton, P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA forthcoming Aug. 2011); see P. Grimm, et al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

This is especially problematical because “[a]s a relatively recent concept, e-discovery’s reasonableness standards are still developing.” D. Bassett, “Reasonableness in E-Discovery,” 32 Campbell L.Rev. 435, 436 (2010).  In short, courts and litigators are still “writing the book.”  M. Berman, C. Barton, P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA forthcoming Aug. 2011), 2.

The anticlimactic denouement in Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Ca. Jan. 7, 2008), vacated and remanded in part, 2008 WL 63810 (S.D. Ca. Mar. 5, 2008), appeals dismissed, 327 Fed.Apx. 877, 2008 WL 6400775 (Fed. Cir. Aug. 18, 2008), on remand, 2010 WL 1336937 (S.D. Ca. Apr. 2, 2010), partially exonerating trial counsel after their careers were devastated by an earlier sanctions decision, illustrates the need for caution in analyzing ESI-related errors.

Software Glitches

Software glitches are a fact of contemporary life. C. Cavas, “F-35s resume flight ops after software glitch,” Navy Times (Jun. 24, 2011); ; J. Scully, “Software glitch delays launch,” Lompac Record (Jun. 9, 2011)(NASA rocket); C. Sorrel, “RIM Recalls PlayBooks Thanks to Software Glitch,” Gadget Lab (May 17, 2011); O. Wright, “Software glitch costs tax office millions in lost revenue,” (The Independent Feb. 1, 2011); Associated Press, “Nissan to fix software glitch in electric car,” (A.P. Apr. 18, 2011);  P. de Selding, “Software Glitch Blamed for Turning Satellite Into Space Zombie,” (Space.com Jan. 13, 2011).

Many cases illustrate software glitches. I.B.E.W. v. Limited Brands, Inc., 2011 WL 1238308, at *15 (S.D. Oh. 2011)(“CW4 and CW6 represented that the distribution center was experiencing software glitches throughout the class period. . . .”); Shah v. Washington County Assessor, 2011 WL 2651582, at *4 (Or. Tax Magistrate Div. 2011)(“Huffman admitted at trial that due to a ‘software glitch’ his analysis of Plaintiffs’ comparable properties gave them a downward adjustment for extra bathrooms when the analysis should have given an upward adjustment to those same properties.”);  Central Parking Systems of Tennessee, Inc. v. Nashville Downtown Platinum, LLC, 2011 WL 1344633, at *1 (Tenn.Ct.App. 2011)(“Due to a “software glitch[,]” however, the amount was double posted, and a check was sent to NDP for twice that amount: $53,761.78.”); In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation, 754 F.Supp.2d 1208, 1221 (C.D. Cal. 2010)(“Plaintiff identifies three design defects that cause or contribute to SUA events, including: . . . software glitches. . . .”);  Beverly Enterprises v. Mississippi Div. of Medicaid,  808 So.2d 939, 943 (Miss. 2002)(“It is unrefuted that a computer software glitch in a newly installed system caused Beverly to miscalculate the correct amount of funds necessary to properly reimburse them for services actually rendered to approximately 712 patients.”).

Sensient Colors, Datel Holdings, and Mt. Hawley

Three recent cases addressed software glitches in the ESI context.  In two, courts recognized the complexity, and failures were excused. In the other, a different result was reached.

Sensient Colors

Faced with determining the adequacy of counsel’s efforts to protect disclosed, privileged information, one court wrote: “Plaintiff’s production was made in the midst of a commendable effort to employ a sophisticated computer program to conduct its privilege review. Unfortunately, mistakes occurred. Plaintiff should not be unduly punished for occasional mistakes that occurred while it started to use new software to organize and sort its documents.”  U.S. v. Sensient Colors, Inc., 2009 WL 2905474, at *4 (D.N.J. Sep. 9, 2009).  According to the court, plaintiff “prepared a database of relevant fields of each of its documents,” conducted oral and written training for the reviewers, and employed pre-production, computer-assisted quality control.  Nevertheless, 214 documents were inadvertently produced out of a 45,000 document production.

The Sensient Colors court cited Heriot v. Byrne, 257 F.R.D. 645, 659 (N.D. Ill. 2009)(citations omitted), for the proposition that “where discovery is extensive, mistakes are inevitable. . . .” The court noted that “no disclosure would have occurred but for the [ESI] Vendor’s error. . . .” Id. at 661.   It concluded that “Plaintiffs relied, and should be able to rely, on their Vendor to faithfully carry out the instructions it had been given.”  Id. at 660.   The court deemed it unfair to penalize a litigant for a mistake it did not cause or anticipate. Id.

Thus, the Sensient Colors court reasoned: “It appears that plaintiff’s implementation of a new computer application was largely to blame for the errors that occurred. This is not unexpected. The use of sophisticated analytical software should be encouraged. Obviously, however, given plaintiff’s experience thus far, future errors will not be treated generously.”  Id. at n. 11.

Datel Holdings

In Datel Holdings Ltd. v. Microsoft Corporation, 2011 WL 866993 (N.D. Cal. Mar. 11, 2011), subsequent opinion on other issues, 2011 WL 2437265 (N.D. Cal. Jun 17, 2011), the defendant inadvertently produced privileged documents due to a software glitch, much like Sensient Colors.  In a nutshell, a litigation support program truncated the portion of an email chain that showed the entire chain was subject to an assertion of privilege. Therefore, reviewers missed it, failed to assert privilege, and six assertedly-privileged documents were erroneously included in the 119,000-document production.

As in Sensient Colors, defendant had a review protocol described by the court as “fairly robust.”  It included a first-pass review of potentially responsive documents, followed by a quality control team review of potentially privileged documents, followed by a privilege team review of the output.  Reviewers received written instructions and a tutorial from litigation counsel. Litigation counsel also conducted quality control checks.  Faced with a waiver argument, the Datel Holdings court wrote:

Specifically, Defendant explains that after potentially responsive documents were collected from custodians, they were loaded into a computerized document processing system known as “Clearwell.” Clearwell extracted metadata from each document and converted the documents into a format that allowed for text searching. Once the documents were processed through Clearwell, they were entered into an online platform, where they were reviewed by attorneys. For reasons still unknown to Defendant, Clearwell truncated some “Re-auth” documents during processing. [internal citations omitted].

The court wrote:

Here, although Defendant’s team of lawyers carefully reviewed documents to identify privileged communications, a computer glitch truncated the documents, removing the portion conveying the request from counsel to conduct a factual investigation. The technical glitch was a mistake, which occurred accidentally and unintentionally, and prevented Defendant’s team of lawyers from recognizing the privileged nature of the email chain. Mistaken production due to an unexpected software glitch that occurred despite the use of standard discovery software falls squarely on the inadvertent side of the divide between intentional disclosure under Rule 502(a) and unintentional disclosure under Rule 502(b). Under these circumstances, production of these six documents was inadvertent. [footnote omitted]. . . .  Here, Defendant used a computerized document processing system to organize its documents which, unbeknownst to Defendant, suffered a software failure.

The court concluded:

In relatively large productions of electronic information under a relatively short time table, perfection or anything close based on the clairvoyance of hindsight cannot be the standard; otherwise, the time and expense required to avoid mistakes to safeguard against waiver would be exorbitant, and complex cases could take years to ready for trial.

As in Sensient Colors, these actions were held to be reasonable and, therefore, sufficient.

“[F]airly robust” procedures were good enough in light of what the Datel Holdings court called a relatively large production “under a relatively short time table. . . .”  2011 WL 866993, at *4.

Mt. Hawley

In Mt. Hawley Insurance Co. v. Felman Production, Inc., 271 F.R.D. 125 (S.D.W.Va.  2010), objections overruled, 2010 WL 2944777 (S.D.W.Va. Jul. 23, 2010), the court was also faced with a software glitch “in the context of a massive production of e-discovery.” In brief summary, the plaintiff had produced an email between its Human Resources Manager and attorneys and, upon learning of the error, subsequently argued non-waiver of the privilege.  Additionally, 377 other documents were at issue.

Opinion of the Magistrate Judge

The May 14 email had been listed on plaintiff’s privilege log.  The court noted that plaintiff “and its counsel used various search protocols, software and vendors’ services to search for and produce documents.”  It recited that production took place in an accelerated, five-month period.  It wrote that defendants identified almost 980 attorney-client communications, of which plaintiff sought to claw back 377, although the initial decision turned primarily on the single email.

The plaintiff, defending its production as inadvertent, “points to its ‘carefully selected privilege search terms,’ document-by-document review of potentially privileged documents, and a second electronic search of remaining documents, as evidence of its reasonable steps. It notes that the May 14 email was listed on its privilege log. After learning of the production of apparently privileged materials, Felman investigated and determined that certain documents were not tagged for attorney review due to an undetermined software error.” [internal citations omitted].

The court framed the dispositive issue as whether plaintiff took reasonable steps to  prevent disclosure. Id. at 133.  It described a sophisticated series of steps taken by counsel to obtain and process ESI, including retaining an “ESI collection vendor,” collecting 1,638 GB, selecting search terms, testing the search terms, refining the search terms after testing, tagging documents for privilege review, and performing a document-by-document review of potentially privileged materials. The ESI had been loaded in multiple Concordance databases and, after learning of the inadvertent disclosure of the privileged email, investigation revealed the one of the databases “inexplicably built an incomplete index of potentially privileged materials.”  Id. at 136.  The court wrote: “The manufacturer of the Concordance software, Lexis-Nexis, has not been able to explain why the index was incomplete.” Id. It was then determined that 328 of the 377 documents had come from the mis-indexed database.

The court found that the production of the 377 documents was not “solely attributable to the problem with the fourth Concordance database file.” It faulted plaintiff for failing to perform critical quality control sampling and found a failure to perform simple key word searches to locate copies of the key email. It concluded that “the precautions taken to prevent inadvertent disclosure were not reasonable.”

Opinion of the District Judge

Felman filed objections to the Magistrate Judge’s decision.  In overruling the objections, the District Judge wrote that discovery in the case had “taken on a life of its own” and “been especially adversarial. . . .” 2010 WL 294477, at * 1.  The court noted that 30% of Felman’s production had contained irrelevant materials and it had “produced nearly a thousand communications subject to attorney-client privilege,” a fraction of which it sought to claw back. It wrote:

Although inadvertently, Felman produced a massive amount of irrelevant documents and thousands of privileged communications. In light of this fact, the Court need not consider the details of Felman’s preproduction document review process – or the unexplained technical glitch that led to the fourth volume of Felman’s e-discovery being not properly screened for potentially privileged materials – to find that Felman’s screening precautions were not reasonable.  The ridiculously high number of irrelevant materials and the large volume of privileged communications produced demonstrate a lack of reasonableness.

The Mt. Hawley court may have been concerned by the allegations of a “data dump” and the assertion that at least 14.3 GB of “junk documents” had been produced.  On the other hand, however, the pre-production steps, detailed at 271 F.R.D. at 135, are impressive precautions.

What Can We Learn From Dr. Nolen?

After his surgical mistake during the appendectomy, Dr. Nolen concluded: “If [the patient] had died, I think I would have given up surgery for good.” Careers were ruined in Qualcomm.  Z. Elinson, “Judge Lifts Sanctions Over Qualcommm Discovery Scandal” (Law.com Apr. 6, 2010).

Dr. Nolen’s book demonstrates that error is a part of complex human endeavors.  In 1968, Dr. Nolen wrote that, “[t]o stick with the appendicitis example, it’s estimated that surgeons are wrong about 15% of the time” in their diagnosis of a “simple” condition like appendicitis. Id. at 58.  And, of course, “[e]ven if he [or she] makes the proper diagnosis the surgeon isn’t home free. There are often two, three or more ways to treat a patient with a specific disease. . . .  Every step of the way, you have to choose between options.” Id.

The Sensient Colors court wrote that a litigant “should not be unduly punished for occasional mistakes that occurred while it started to use new software to organize and sort its documents.”  Sensient Colors, 2009 WL 2905474, at *4. Just as Dr. Nolen was not able to find the landmarks for the initial incision on his “victim” for his first surgery, the preservation, collection, processing, review, and production of ESI is far from a science in this, the fifth year after the “ESI rules.”

By necessity, ESI is a team effort. Similarly, Dr. Nolen wrote that:

Every operation is a team event.  A surgeon can no more operate on a patient by himself [or herself] then can a general fight a war alone.  An operation, like a battle, is a co-operative venture.

Id. at 217.  ESI attorneys rely on complex software and service providers as part of the team. They have no other choice. Wholesale manual review of terabytes of information is not possible. In Heriot, the court wrote that a litigant “relied, and should be able to rely, on their Vendor to faithfully carry out the instructions it had been given.”  257 F.R.D. at 660.

Proportionality, transparency, and cooperation are central concepts.  “The public has an interest in effective and efficient legal proceedings calculated to lead to fair and just results. The litigants have an interest in having their legal matters addressed fairly, promptly and economically.”  Gould v. Charlton Co., Inc.,  929 S.W.2d 734, 737-38 (Ky. 1996). Each case turns on its unique facts, however, as in Datel Holdings, “fairly robust” measures, even if imperfect, should generally suffice.

Resources

One issue in Mt. Hawley was that the recipient of the inadvertent production successfully argued that it had no duty to notify the producing party of its receipt of privileged information.  “Notice” should be a topic discussed in Rule 26(f) conferences. M. Berman, “The Rule 26(f) Conference of Parties,” in M. Berman, C. Barton, and P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA forthcoming Aug. 2011), Chap. 19.

For a discussion of search methodology, see Chapters 21 and 22 of M. Berman, C. Barton, and P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA forthcoming Aug. 2011).

Postscript

Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011)(documents tagged for privilege during document review were inadvertently produced in online database.  Court held that procedures were not reasonable. Court cited statements of counsel that “all” documents were produced, inadequate description of precautions taken, failure to timely notice the production, and failure to timely prepare a privilege log.  “Perhaps the most telling in assessing the adquacy of the safeguards is the abject failure of the Village’s processes to protect allegedly privileged documents.  The Village did not succeed in identifying and withholding from production even a single privileged document.”).

B. Kerschberg, “Privilege Waived? Federal Court Says Don’t Blame Your Electronic Discovery Vendor,” Forbes (Aug. 19, 2011)(“Thorncreek may produce a sigh of relief among e-discovery vendors, at least based on these facts. There are myriad scenarios that are equally plausible and would probably result in a different outcome, but the courts will address them if and when they arise. In the meantime, counsel has been warned: electronic discovery is not the bailiwick of third-party vendors alone. Absent active involvement in—and indeed control of—the e-discovery process, serious repercussions may ensue.”).

The Sedona Conference Best Practicies Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sed.Conf.L.J. 189, 204, 211 (2007)(“The discovery standard is, after all, reasonableness, not perfection. . . . [T]here is no requirement that ‘perfect’ searches will occur. . . . A standard of absolute perfection is and always has been unrealisitic, but now, with quantitative data available, we know perfection is  not only unrealistic, but also quite simply unachievable. . . . ‘[P]erfection should not be allowed to be an enemy of the attainable and reasonable goal of reasonableness.”).

There have, however, been a number of decisions that have been highly critical of government efforts in the ESI arena. E.g., Moore v. Napolitano, 723 F.Supp.2d 167 (D.D.C. 2010)(government made a “mockery” of process);  In Re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C.Cir. 2009)(contempt); Un. Med. Suppl Co., Inc. v. U.S., 77 Fed.Cl. 257 (Fed.Cl. 2007)(sanctions).

Authorities are divided on the question of whether the government is to be treated like any other litigant. The United Medical court wrote that:

“Generally speaking, ‘when the United States comes into court. . . it is. . . as any other litigant…. It is the duty of the United States, no less than any other party before this court to ensure, through its agents, that documents relevant to a case are preserved.”

Id. Others have argued that, because litigation diverts scarce public resources, special considerations are in order.

Proportionality principles provide at least a partial solution to the perceived problem of conserving the public fisc. In an article by Milberg LP and Hausfeld LLP, “E-Discovery: The Fault Lies Not in Our Rules. . . .,” 4 Fed.Cts.L.Rev. 1 (2011), the authors argued that attorneys are failing to use Rules 1, 26(b)(2)(B), 26(b)(2)(C), 26(c), 26(f), and 26(g) as cost containment measures.

While there is no “silver bullet,” it appears that Rules-based solutions, transparency and cooperation provide viable tools to address at least many of the issues presented. The slide deck is available, Addressing Proportionality in Government E-discovery – IQPC, June 2011

The recent decision in Green v. Blitz U.S.A., Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), has energized the debate over self-preservation.  There, a litigant placed its own, interested employee in charge of preservation efforts, with disastrous results. This led one commentator to note that while “[m]y conclusion up until now has been that this collection methodology (where employees manually select and potentially harvest their own data) could be defensible if properly executed. . . the pendulum has swung far enough to proclaim that this approach is far too dangerous for most enterprises, except those perhaps that are extremely risk tolerant,” D. Gonsowski, “Self Collections in E-Discovery – Just too Risky for Prime Time,” (Apr. 20, 2011).

When the duty to preserve ESI is triggered, it is tempting to use the paper paradigm of requesting that a client or client’s employee search for and preserve ESI.  After all, it would appear that permitting someone familiar with the data to search and preserve it would be the most cost-effective approach.  This is generally described as “self-identification,” “self-preservation,” or “self-collection.”

THE KNOWN DANGERS OF SELF-PRESERVATION

There is nothing new about self-preservation, and its dangers are well-documented.  In Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 287 (S.D.N.Y.  2003), “all UBS employees were instructed to save documents relevant to [the] case.” Mr. Matthew Chapin, “Zubulake’s immediate supervisor and the alleged primary discriminator,” however, failed to save a “potentially useful email. . . .”  In United States v. Philip Morris USA, Inc., 327 F.Supp.2d 21, 24 (D.D.C. 2004)(subsequent history omitted), corporate employees were given preservation instructions and the court found it “astounding” that employees at the highest corporate levels failed to follow a “’print and retain’ policy which, if followed, would have ensured the preservation of those emails which have been irretrievably lost.”   And, in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 629-30 (D. Col. 2007), “Land O’Lakes directed employees to produce all relevant information, and then relied upon those same employees to exercise their discretion in determining what specific information to save,” however, “Land O’Lakes’ General Counsel took no independent action to verify the completeness of the employees’ document production,” resulting in spoliation. The court stated that lay employees do not have sufficient knowledge to make relevancy determinations and noted that they may have an incentive to fail to produce information.

CASES SUGGESTING THAT SELF-PRESERVATION IS PROHIBITED

Given the dangers, it has been suggested that self-preservation is not permitted.  For example, in Jones v. Bremen High School District 228, 2010 U.S.Dist.Lexis 51312 *8 (N.D.Ill. May 25, 2010), the “individuals most involved in the alleged discriminatory actions, were tasked by the district to search through their own electronic mail (and no one else’s) and cull out relevant documents” without supervision by counsel. The court wrote:

“It is unreasonable to allow a party’s interested employees to make the decision about the relevance of such documents, especially when those employees have the ability to permanently delete unfavorable email from a party’s system.”

The court concluded that the litigant was grossly negligent in relying on “its employees — the same employees whose conduct was at question in the lawsuit — to select the documents they felt were relevant.  Those employees had no legal training” and could have a motive for concealing evidence.

In Northington v. H&M International, the court stated that “defendant never tasked anyone other than the custodians themselves to search their computer hard drives, hard copy documents, or other sources for potentially relevant evidence. . . .” 2011 WL 663055 *17 (N.D.Ill. Jan. 12, 2011).  It described this process as grossly negligent and unreasonable.  In Phillip M. Adams & Associates, LLC v. Dell, Inc., the court wrote that: “ASUS’ practices invited the abuse of rights of others, because the practices tend toward loss of data.  The practices place operations-level employees in the position of deciding what information is relevant to the enterprise and its data retention needs,” 621 F.Supp.2d 1173 (D. Ut. 2009).

Similarly, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, the court reiterated that it is not sufficient to simply notify employees of a litigation hold and expect that relevant data will be preserved:  “I note that not every employee will require hands-on supervision from an attorney.  However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important.  The adequacy of each search must be evaluated on a case by case basis. . . .” 685 F.Supp.2d 456, 473  n. 68 (S.DN.Y. 2010); Id. at  484 (“Hardman should have been taught proper search methods. . . .”), 489 (“Lombardi delegated the search for records to his assistants, but failed to provide any meaningful supervision.”).  Finally, when the Delaware Chancery Court was advised that a litigant was relying on that technique, the court stated: “This is not satisfactory. . . . [Y]ou are not doing what you should be doing.  First of all, you do not rely on defendant to search their own e-mail system. . . .  There needs to be a lawyer who goes and makes sure the collection is done properly. . . .” Roffe v. Eagle Rock Energy Gp, L.P., C.A. 5258-VCL (Apr. 8, 2010), 9-10; see also Intel Microprocessor Antitr. Litig., 229 F.R.D. 422 (S.D.N.Y. 2004)(one in a series of decisions)(Intel’s fail safe process did not work); see generally GFI Acquisition, LLC v. American Federated Title Corp., 2010 WL 1418861 *2 (Bankr. S.D.N.Y. Apr. 7, 2010)(counsel directed “company-wide” search without adequate information); John B. v. Goetz, 2007 WL 4198266 *2 (M.D. Tenn. Nov. 26, 2007)(“the Governor’s ESI suffers the same problems of self-collection and preservation that have been previously documented.”).

THE ROLE OF PROPORTIONALITY

It is tempting, therefore, to conclude that self-preservation is impermissible.  It is important, however, to recall that all ESI decisions should be governed by concepts of proportionality.  Recently, one commentator, Ralph Losey, Esq., compared self-preservation to the fox guarding the henhouse, but noted that:

“Unlike some commentators, I think that reliance on self-collection is sometimes justified. It depends on the case and proportionality principles. It also depends on whether legal counsel is supervising the effort. . . .  In the right case, where you have no reason to suspect a fox is in your midst, and you have a legal watchdog around, there may be no need to incur the additional expense of full IT collection and attorney review.”

R. Losey, “Another “Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011). Offering a more nuanced option, Mr. Losey suggested a “dual protection system” in which “the key custodians still search, identify, and self-collect what they think are relevant emails, but, as a fail safe, IT also collects all of the key custodians’ emails.”

Mr. Losey’s nuanced approach comes with a pedigree not often recognized. It has been authoritatively stated that:  “Self-collections by custodians may give rise to questions regarding the accuracy of collections if directions and oversight are poor or non-existent.” The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, (June 2007), 58 (emphasis added).  According to The Sedona Guidelines:

“Under its policy, a potential producing party enlists the assistance of its employees or agents who are identified as possibly having relevant information by informing them of the nature of the controversy and the time frame involved, and by providing them with a method of accumulating and updating (where disputes are ongoing) copies of the relevant information. The appropriate  individuals are instructed to preserve relevant information for the duration of the controversy and steps are established to follow up with the identified individuals and secure the information. The organization has likely fulfilled its obligations.”

“Best Practices Guidelines & Commentary for Managing Information & Records in the Electronic Age,” (2d ed. 2007), 49 (emphasis added).

In sum, Mr. Losey, The Sedona Conference, and some of the language in the cited decisions suggest that an absolutist position may not be the best solution.  There should be situations where self-preservation is permissible.

PRACTICE TIPS

“Proceeding chronologically, the first step in any discovery effort is the preservation of relevant information,” Pension Committee, 685 F.Supp.2d at 464.  There is ample authority that supports a proportionality analysis in the context of the duty to preserve.  P. Grimm, et al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,”   37 U.Balt.L.Rev. 381, 403 (2008).  Therefore, a primary factor in deciding whether self-preservation is permissible should be the size, value, and needs of the case, and resources of the litigant, See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D.Md. 2008)(discussing a “discovery budget”).

Another key factor is to precisely define what “self-preservation” means. “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,” Towne v. Eisner, 245 U.S. 418, 425 (1918).  Self-preservation may include no, or varying degrees of, involvement by counsel.  It could be performed by a self-described “computer illiterate,” as in Green v. Blitz, or by sophisticated personnel. It could center on a case involving allegations of dishonesty or one presenting a commercial argument over virtually undisputed facts among people of unquestioned integrity.  And, the person conducting the search might, or might not be, the target of the allegations of wrong-doing.

Additional key safeguards would be some form of quality control to reasonably assure that there was, in fact, client compliance.  This could include protocols, spot checks, and Mr. Losey’s “dual protection system.”  Attorney supervision in a case-specific, appropriate and reasonable form, as suggested in Pension Committee and other authorities, appears crucial.  Finally, self-preservation undeniably presents elevated risk and the decision should be one made by a client based on sufficient discussion of the risks and advantages.

POSTSCRIPT

L. Levy, “The Hidden Costs of Self Collection” (Applied Discovery June 2, 2011).

W. L. Wescott,  To Self Collect or Not to Self Collect (Daily Record July 7, 2011).

M. Diamond, “New ruling shouldn’t force use of outside e-discovery vendors” (Inside Counsel June 20, 2011).

Advanced Discovery, “The Dangers of Self Collections in E-Discovery” (May 20, 2011).

Phoenix Four, Inc. v. Strategic Resources Corp., 2006 U.S.Dist.Lexis 32211 (S.D.N.Y. May 23, 2006)(“[Counsel]  simply accepted the defendants’ representations that because SRC was no longer in operation, there were no computers or electronic collections to search.”).

Chapter 536 initially broadens the scope of the PIA by providing that, with enumerated exceptions, the custodian of a public record “shall provide an applicant with a copy of the public record in a searchable and analyzable electronic format” if: it is available; requested in that format; does not disclose confidential or protected information; and, is otherwise disclosable.  As such it has been correctly applauded. M. Poinski, “Md. makes strides towards government transparency,” The Daily Record (Apr. 20, 2011).

The statute, however, proceeds to state that a custodian “may remove metadata from an electronic document before providing the electronic document to an applicant. . . .” [emphasis added].  It provides two acceptable methods for scrubbing metadata: 1) using a software program or function; or, 2) conversion to a different searchable and analyzable format.

Removable metadata is statutorily defined as “information, generally not visible when an electronic document is printed, describing the history, tracking, or management of the electronic document, including information about data in the electronic document that describes how, when, and by whom the data is collected, created, accessed, or modified and how it is formatted.”

Under the statute, metadata does not include a spreadsheet formula, a database field, an externally or internally linked file, or a reference to an external file or hyperlink.

A number of Courts have taken a different approach to metadata under public records acts.  For example, in Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009), the Court wrote:

“We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws. . . . We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law.”

And, the Washington Supreme Court recently concluded:

“Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom. Our broad [Public Records Act] exists to ensure that the public maintains control over their government, and we will not deny our citizenry access to a whole class of possibly important government information. We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure.”

O’Neill v. City of Shoreline, 170 Wn.2d 138, 147-48 (2010).

In a nuanced decision that reviewed the federal Freedom of Information Act, as well as State court decisions, the Honorable Shira A. Scheindlin concluded: “By now, it is well accepted, if not indisputable, that metadata is generally considered to  be an integral part of an electronic record.”  National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 U.S.Dist.Lexis 11655 *13 n. 26 (S.D.N.Y. Feb. 7, 2011).  Judge Scheindlin concluded that several state courts have uniformly held “ in the context of state freedom of information laws, that metadata is indeed a part of public records and must be disclosed pursuant to a request for public records.”   The court proceeded to define which specific metadata fields must, in the context of the FOIA request at issue, be included in the government’s response.  Accord Matter of Irwin v Onondaga County Resource Recovery Agency, 72 A.D.3d 314, 895 N.Y.S.2d 262 ( 2010)(“We are therefore constrained to conclude that the subject ‘system’ metadata, which is at its core the electronic equivalent of notes on a file folder indicating when the documents stored therein were created or filed, constitutes a ‘record’ subject to disclosure under FOIL. . . . We do not, however, reach the issue whether metadata of any other nature, including ‘substantive’ and ‘embedded’ metadata, is subject to disclosure under FOIL.”).

Under these authorities, unless metadata comes within a recognized PIA exception, e.g., privilege, trade secret, etc., that metadata is generally part of a public record and should be produced.  The Maryland statute, however, apparently permits a custodian to “scrub” or remove metadata, even if that metadata is neither privileged nor confidential.

This could produce an anomaly. For example, while a State employee’s signature could not be redacted from a paper public record, the statute permits the custodian to delete metadata showing the identity of the person who created the document even if the information is neither confidential nor privileged.

It may be important for the applicant to learn that a document was created by X although signed by Y.  For example, “[a]nalysis of hidden information in the so-called Iraq ‘dodgy dossier’ showed, among other things, the names of the four civil servants who worked on it.”  See M. Ward, The Hidden Dangers of Documents, BBC News: Technology.  Metadata identifying a document’s author was important in the arrest of the “BTK killer”:

“Dennis provided details related to the murders in letters that he sent to the police and local news stations. The trail went cold until the police examined a floppy disk sent to a Fox affiliate (KSAS-TV) in 2004. The floppy disk contained a deleted Microsoft Word document file. The investigators recovered the file and examined the metadata, which identified ‘Dennis’ as the author and the ‘Christ Lutheran Church’ as the software licensee.  Using this information, the investigators were able to locate the Christ Lutheran Church where Dennis was a Deacon. Combined with other evidence collected, the BTK killer was finally captured and convicted of these terrible crimes.”

J. Rowe, Pinpoint Labs Blog (Aug. 5, 2008). And, to give another example, metadata purportedly showed that one of Microsoft’s annual reports was prepared on a Macintosh. S. Rosenberg, “Microsoft’s annual report: Made on Macintosh,” Oct. 12, 1999.

The statute appears to allow the government to impose the cost of “scrubbing” on the requestor, even if the custodian is stripping non-privileged, non-confidential information from a public record, stating: “The official custodian . . .  may charge any reasonable fee for making or supervising the making of a copy, electronic copy, printout, or photograph of a public record.”  The Fiscal Note states:  “A custodian of a public record is authorized to remove metadata from an electronic document before providing it to an applicant, and a custodian may charge an applicant a reasonable fee for making or supervising the making of an electronic copy.”  Thus, the requestor may have to pay the cost of removing information that the requestor was otherwise entitled to receive.

While the statute commendably addresses part of the transition to electronic public records, and properly ensures that electronic records are covered by the PIA, it also appears to permit a custodian to remove metadata a from a public record, apparently at the applicant’s cost, even if that metadata is wholly benign, not privileged, and not confidential.  Chapter 536 contains a “sunset provision” and will expire on September 30, 2013.

POSTSCRIPT:  June 17, 2011, Order

On June 17, 2011,  the Court in National Day Laborer issued the following order:

This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

The Court’s order postdated the posting of this blog.

ADDITIONAL RESOURCES:

Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 547 (D.Md. 2007)(“Another way in which electronic evidence may be authenticated. . .  is by examining the metadata.”).

P. Kozinets, “Access to Metadata in Public Records: Ensuring Open Government in the Information Age,” 27 Communications Lawyer 1 (ABA Jul. 2010) (“Metadata might not be pertinent to every public records request, but it should be supplied when requested, absent a demonstrably good reason for closure.”).

D. Degnan, “Accessing Arizona’s Government: Open Records Requests for Metadata and Other Electronically Stored Information After Lake v. City of Phoenix,” 3 Phoenix L.Rev. 69 (2010).

Annot., “Disclosure of Electronic Data Under State Public Records and Freedom of Information Acts,” 54 A.L.R.6^th 653 (2010).

K. Oakes, “Matters subject to disclosure, generally,” 76 C.J.S. Records §116.

M. Chumber, ed., “Access to Government in the Computer Age: An Examination of State Public Records Laws” (ABA 2007), 2(“Because [the government agency] and its administrators choose, for purposes of administrative expediency, to computerize the raw data, does not make the data any less a public record.”), quoting Bd. of Educ. of Newark v. New Jersey Dept. of Treasury, 653 A.2d 589 (N.J.Ct.App.Div. 1995).

Mr. Griffin was charged with shooting another person.  The State introduced Ms. Barber, his girlfriend’s, MySpace profile to show that she had threatened a State’s witness. The page said: “REMEMBER SNITCHES GET STITCHES!! YOU KNOW WHO YOU ARE!!”

The State attempted to authenticate the MySpace page through the testimony of a police officer who identified people in a photo on the page, and provided other similar information, such as residence and date of birth, that comported with Ms. Barber’s information. Later, the parties stipulated to what the officer would have testified, however:  “When Ms. Barber had taken the stand after being called by the State, she was not questioned about the pages allegedly printed from her MySpace profile.”

The Court noted that “anyone can create a fictitious account and masquerade under another person’s name. . . .” It pointed out that a Boston internet company created a profile for a toy named “Freddi Staur,” and nearly 200 Facebook users added the frog as a “friend.”

The Court, relying on the decision of The Honorable Paul W. Grimm in Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D.Md. 2007), noted: “[A] witness with knowledge, such as Ms. Barber, could be asked whether the MySpace profile was hers and whether its contents were authored by her; she, however, was not subject to such inquiry when she was called by the State.”

The Court squarely distinguished authentication of a social networking site from authentication of email:  “[A]uthentication concerns attendant to e-mails, instant messaging, correspondence, and text messages differ significantly from those involving a MySpace profile and posting printout. . . .”

It made clear that “we should not be heard to suggest that printouts from social networking sites should never be admitted” and provided several illustrative methods of authentication, including: 1) asking the creator “if she indeed created the profile and also if she added the posting in question. . . .”; 2) a forensic examination of the computer in question; and, 3) obtaining the information directly from the social networking site.

In Lorraine, the Court noted that “considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration . . . because the proponent cannot lay a sufficient foundation to get it admitted.”  See generally, P. Grimm, M. Ziccardi, and A. Major, “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L.Rev.  357 (2009). 

As noted in Lorraine, “if it is critical to the success of your case to admit into evidence computer-stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied.”  In Griffin, the excluded MySpace pages were, according to the State, “probably the most important witness in this case. . . .”

Each question contains a text box and, for those fluent with virtual or accessory keyboards, a deponent’s answers can be entered as the deposition progresses.  Each question also contains  a “flag” and  the product ships with four stock flags so that a question may be marked, for example, as “finished” or “go back.”  The flags can be tailored to suit the user’s needs.  For example, you might want to flag questions with “objections,” or  “instructed not to answer,” and Deponent permits re-naming up to four flags.  The program also permits PDF or TIFF files to be imported via iTunes or Dropbox and attached to the relevant question.

Let’s take a look at how the App might be tailored to a specific use.  Under the settings option, there is a “questions” button.  The questions are sorted by category and the stock options include categories for the “accident,” witnesses’ “assumptions,” the “basis of opinion,” etc.  After filtering by category, each relevant question can be checked off to enter it into the deposition outline.  There, it can be re-ordered and individually edited to meet the needs of the deposition.  The program also permits the user to add new questions to each pre-defined category.

More significantly, the category selection lets the user create new categories.  Because I am a commercial litigator and rarely deal with an “accident,”  I might want, for example, a category called “contract formation,” and a category titled  “accounting issues.”  I can then create my own stock questions for those categories.

Once created, I can go to the “questions” button and add stock questions, choosing from my new categories and tailored questions.  Then,  by checking  the questions, they will be added to an outline tailored to the case.

Currently, the program does not permit filtering by flags, and that would be a welcome added feature.   Nevertheless, it is easy to use and has an intuitive interface.

The iPad has been described by Webomatica as a device for consuming, but not creating, content, a view that I have generally shared. Deponent, however, does the latter.

Deponent was recently described by Sharon D. Nelson, Esq., of Sensei Enterprises, Inc., on her highly-regarded feedblitz blog.