Electronic Discovery. Proposed Updates to the Federal Rules of Civil Procedure Address Proportionality and Sanctions.

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1 Electronic Discovery Spring 2014 In this Issue 1 Proposed Updates to the Federal Rules of Civil Procedure Address Proportionality and Sanctions 3 Spoliation of Social Media Evidence 4 Predictive Coding and the Proportionality Principle 6 Proposed Amendments to the Electronic Communications Privacy Act 8 Internet Use at Trial: Solutions for Preventing Jury Misuse of the Internet 10 More Circuit Courts of Appeal Follow Race Tires Lead on Cost-Shifting Analysis 12 The Ethical Discovery of Social Media Data Editors If you have any questions or would like more information concerning any of these topics, please contact: Norman C. Simon Norman C. Simon is a litigation partner and chairs the firm s E-Discovery Practice. Brendan M. Schulman Brendan M. Schulman is Kramer Levin s E-Discovery Counsel and a member of the firm s E-Discovery Practice. Samantha V. Ettari Samantha V. Ettari is a litigation associate and a member of the firm s E-Discovery Practice. The contents of this Update are intended for general informational purposes only, and individualized advice should be obtained to address any specific situation. Proposed Updates to the Federal Rules of Civil Procedure Address Proportionality and Sanctions In August 2013, the Judicial Conference Advisory Committee on Bankruptcy and Civil Rules (the Committee ) released a package of proposed amendments to the Federal Rules of Civil Procedure (the Rules ) which, in a departure from the trend of prior Rule updates, propose to limit the scope of discovery rather than expand it. See Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure, available at uscourts/rules/preliminary-draft-proposed-amendments.pdf (the Proposed Rules ). Judges and other members of the legal community have recently voiced their support to limit the scope of discovery, arguing that the cost and burden of discovery may be spiraling out of control. Proportionality Considerations Perhaps the most significant proposals considered by the Committee are amendments to Rule 26(b)(1) governing the scope of discovery. If enacted, the proposed changes would require proportional discovery, limiting discovery more than presently allowed. Currently, Rule 26(b)(1) provides the scope of discovery as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The current embodiment of Rule 26(b)(1) thus authorizes broad discovery, only requiring that the discovery request appear reasonably calculated to lead to the discovery of continued on page 2 Attorney Advertising

2 2 Electronic Discovery Update Proposed Updates to the Federal Rules of Civil Procedure Address Proportionality and Sanctions continued from page 1 admissible evidence. The proposed amendment to Rule 26(b)(1) alters the current language significantly and reads as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information need not be admissible in evidence to be discoverable. See Proposed Rules at (emphasis added). The proposed amendments would thus restrict the currently broad scope of discovery procedures to information proportional to the needs to the case. The proposed changes would remove the any matter relevant to The proposed amendments would thus restrict the currently broad scope of discovery procedures to information proportional to the needs to the case. the subject matter clause now in the rule, specifically restricting discovery to any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case considering the amount in controversy and whether the burden or expense of the proposed discovery outweighs its likely benefit. This would likely have significant impact on discovery in future litigations if adopted, although many courts already consider proportionality and amount in controversy when the scope of discovery becomes subject to dispute. Codifying Sanctions for Failure to Preserve Discoverable Information The Committee also considered, in conjunction with the proposed amendments to Rule 26(b), amendments to Rule 37, which governs the imposition of sanctions when a party fails to preserve discoverable evidence. The proposed amendments to Rule 37 are designed to ensure that potential litigants who make reasonable efforts to satisfy their preservation responsibilities may do so with confidence that they will not be subjected to serious sanctions should information be lost despite those efforts. See Proposed Rules at 318. The proposed... many courts already consider proportionality and amount in controversy when the scope of discovery becomes subject to dispute. amendments achieve the Committee s stated purpose by establishing two types of action that a court may take when it finds that a party has failed to preserve documents important to the litigation. The first is more concerned with curative measures such as additional discovery, while the second addresses more punitive actions. See Proposed Rules at To achieve those goals, the Proposed Rule 37(e)(1) provides that If a party failed to preserve discoverable information that should have been preserved in the anticipation or conduct of litigation, the court may (A) permit additional discovery, order curative measures, or order the party to pay the reasonable expenses, including attorney s fees, caused by the failure; and (B) impose... sanction[s] or give an adverse-inference jury instruction in certain enumerated circumstances. Proposed Rules at At a panel during the summer of 2013, the Consortium on Litigation, Information Law & E-Discovery, several judges voiced their support for the proposed changes. See Monica Bay, Judges Chime in on Proposed E-Discovery Amendments, Law Technology News (May 3, 2013), available at jsp?id= Southern District of New York Judge Shira Scheindlin suggested that an emphasis on proportionality was necessary: How am I supposed to conduct proportionality (hearings) especially right up front It s very difficult to know how to vet things when I know little about the case and have so little time. Scheindlin added, We may be moving to stay e-discovery continued on page 7

3 Electronic Discovery Update 3 Spoliation of Social Media Evidence As websites like Facebook and Twitter grow in usage, litigators increasingly seek discovery of content from social media, as allowed by statutes and case law, for relevant electronically stored information. The uptick in the request for, and production of, social media information coupled with the ease with which a party can delete or destroy it may pose a risk that parties will spoliate relevant evidence after litigation arises. However, as with other electronically stored information, parties that are proven to have destroyed relevant evidence may face severe sanctions. The Spring 2013 Kramer Levin Electronic Discovery Update addressed the increasing use of social media information as evidence in trials. This article looks further at spoliation of social media evidence and the remedies afforded by the courts to the innocent parties seeking discovery, as seen in the New Jersey district court case Gatto v. United Air Lines, Inc., 2013 WL (D.N.J. Mar. 25, 2013) ( Gatto ) and the Virginia state case Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) ( Lester ). Gatto v. United Air Lines, Inc. In Gatto, plaintiff brought a personal injury claim against airline defendants after they allegedly caused a set of fueler stairs... to crash into plaintiff. Gatto, 2013 WL at *1. Defendants sought information as to his social activities that would contradict plaintiff s claim that he was unable to work after the accident. Id. A New Jersey federal magistrate judge ordered plaintiff to provide the defendants with his Facebook account name and password to facilitate discovery. Id. Counsel for defendants accessed the Facebook account, triggering a notification to plaintiff that his account had been accessed by an unfamiliar IP address. Id. at *2. Defendants subsequently sought to acquire all the information from the account directly from Facebook. Id. Facebook instructed defendants to have plaintiff download his information and give a copy to them, to which the parties allegedly agreed. Id. Just fourteen days later, however, plaintiff s counsel informed defendants that the information was no longer available because plaintiff had deactivated his Facebook account shortly after defendants had made the discovery request, allegedly in response to the notification that it had been accessed by an unfamiliar IP address. Id. As a result, defendants were unable to obtain discovery from plaintiff s Facebook account. The court awarded the sanction of an adverse inference instruction to the jury. Id. at *4. The court found that defendants had met the four elements required for finding spoliation under New Jersey case law: (1) the Facebook account was within plaintiff s control as plaintiff had authority to add, delete, or modify his account s content ; (2) plaintiff either intentionally or accidentally suppressed the Facebook evidence; (3) the evidence suppressed was relevant to damages because the information sought by defendants focused upon posts, comments, status updates, and other information posted or made by the plaintiff subsequent to the date of the alleged accident ; and (4) it was reasonably foreseeable that plaintiff s Facebook account would be sought in discovery as defendants had requested the information multiple times, including at a Settlement Conference where plaintiff was present fifteen days before plaintiff deactivated his account. Id. at *3-4. The court expressed skepticism over whether plaintiff merely deactivated his account or if he took further steps to permanently delete his profile, noting that the procedures for deactivating versus permanently deleting a Facebook account are not identical. Id. at *2 n.1. The court did not grant monetary sanctions to defendants, however, finding that the suppression of the contents of the Facebook account did not appear to be motivated by fraudulent purposes or diversionary tactics. Id. at *5. Allied Concrete Co. v. Lester In Lester, plaintiff sued defendant after one of its drivers crashed into plaintiff s car, injuring plaintiff and killing his wife. Lester, 736 S.E.2d at 701. Defendant sought discovery of plaintiff s social media accounts to rebut the alleged impact of the crash on plaintiff. Plaintiff s Facebook page contained photographs that cast him in a negative light, which defendant s counsel (apparently under permissible circumstances) was able to briefly access. Id. at 702. Among sixteen compromising photographs was one depicting plaintiff holding a beer can while wearing a T-shirt emblazoned with I hot moms, a picture that was potentially damaging to plaintiff s claims for damages resulting from his wife s death. Id. The very continued on page 9

4 4 Electronic Discovery Update Predictive Coding and the Proportionality Principle Introduction When discovery involves large volumes of electronically stored information ( ESI ), efficient and thorough review within budgetary constraints and court-ordered deadlines can be a challenge. New technological advancements such as predictive coding (also known as technology-assisted review ) have become attractive options in litigations involving large numbers of documents. Recent court guidance suggests that such advanced review approaches are appropriate in light of the proportionality framework governing discovery under the federal rules. Early Decisions Addressing Predictive Coding Predictive coding is a computerized process whereby complex algorithms analyze document sets using a relatively small seed set of documents that have been coded by knowledgeable attorneys. Once properly trained, the Since Judge Peck s ruling in Da Silva Moore, several courts have expressed increasing comfort with predictive coding approaches. computer software can label the balance of documents as potentially relevant or otherwise, or rank the documents in order of most likely relevant to least, in order to facilitate various review approaches. Until recently, few courts have spoken on the use of this new technology. In February of last year, Southern District of New York Magistrate Judge Andrew J. Peck issued the first opinion addressing technology-assisted review in Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), adopted sub nom. Moore v. Publicis Groupe SA, 2012 WL (S.D.N.Y. Apr. 26, 2012) ( Da Silva Moore ). We previously reported on this decision in detail in our E-Discovery Update dated April 2012, available at April Judge Peck wrote in that decision that computer-assisted review is an available tool and should be seriously considered for use in large-data volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Da Silva Moore, 287 F.R.D. at 183. Since Judge Peck s ruling in Da Silva Moore, several courts have expressed increasing comfort with predictive coding approaches. See, e.g., Gordon v. Kaleida Health, 2013 WL (W.D.N.Y. May 21, 2013); Global Aerospace Inc. v. Landow Aviation, L.P., 2012 WL (Va. Cir. Ct. Apr. 23, 2012); Hinterberger v. Catholic Health Sys., Inc., 284 F.R.D.94 (W.D.N.Y. 2013). The Sedona Conference Journal, published by the nation s leading think-tank on e-discovery issues, provided additional encouragement in a Fall 2012 article, noting that [t]echnology-assisted review procedures have the potential to reduce discovery costs and expedite the production of relevant, nonprivileged ESI. Hon. Craig B. Shaffer, Defensible By What Standard?, 13 Sedona Conf. J. 217, 234 (Sept. 2012) available at https://thesedonaconference.org/system/files/ LR-Defensible.by.what.standard.pdf; see also Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 27 Rich. J.L. & Tech., 11, 48 (2011). In Re Biomet: Keywords versus Predictive Coding Most recently, the Northern District of Indiana issued an opinion approving the use of predictive coding in a litigation involving tens of millions of documents. In re Biomet M2a Magnum Hip Implant Products Liab. Litig., 2013 WL (N.D. Ind. Apr. 18, 2013) ( In re Biomet ). The defendant Biomet, a medical products manufacturer facing a products liability lawsuit, started with a universe of 19.5 million documents, then used keyword searches to reduce the document count to 3.9 million documents. Id. at *2. After duplicate documents were removed from the set, the document count fell to 2.5 million. Id. at *1. Then, Biomet used technology-assisted review software to further refine the set of documents to be turned over to plaintiff s Steering Committee. Id. at *2. Plaintiffs objected to Biomet s application of keyword searches to the initial pool of 19.5 million documents, contending that predictive coding should have been employed earlier in the process, before the keyword searches had reduced the universe of documents that would be analyzed by the software. Id. at *2-3. continued on next page

5 Electronic Discovery Update 5 Biomet argued that recommencing the discovery process at square one, and applying technology-assisted review to the initial set of 19.5 million documents would cost Biomet millions of additional dollars. Id. at *4. By April 2013, Biomet s e-discovery expenses were $1.07 million and were estimated to eventually reach between $2 million and $3.25 million. Id. at *1. In a short opinion written by Hon. Robert L. Miller, the court ruled that Biomet s discovery disclosure practice had complied with Federal Rules of Civil Procedure 34(b)(2) and 26(b), and that restarting the discovery process, as proposed by plaintiffs, would run contrary to the proportionality provision embodied in Rule 26(b)(2) (C). Id. at *3. Crucial to the court s decision were the additional costs Biomet would incur by recommencing the discovery process, and the reasonable discovery efforts already employed by the parties. Id. Judge Miller acknowledged the possibility that predictive coding, instead of a keyword search, at Stage Two of the process would unearth additional relevant documents, but denied that the likely benefits of the discovery proposed by the [plaintiff] Steering Committee equals or outweighs its additional burden on, and additional expense to, Biomet. Id. Proportionality Central to the court s decision was Federal Rule of Civil Procedure 26(b)(2)(C)(iii), which states that: On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by the local rule if it determines that:.... (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26 (b)(2)(c)(iii). In addition to suggesting that keywords and advanced software may be used in combination when undertaking document review, perhaps the most noteworthy aspect of Judge Miller s ruling is the focus on Rule 26 s proportionality standard. In many ways, In re Biomet serves as strong reinforcement to the thematic overtone of Judge Peck s ruling in Da Silva Moore. Judge Peck advised that [c]ourts and litigants must be cognizant of the aim of Rule 1, to secure the just, speedy, and inexpensive determination of lawsuits, and that the proportionality doctrine set forth in Rule 26(b)(2)(C) furthers these concerns. Da Silva Moore, 287 F.R.D. at 191. Further, just as Judge Peck in Da Silva Moore noted that while computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection, Judge Miller in In re Biomet acknowledged that some relevant In addition to suggesting that keywords and advanced software may be used in combination when undertaking document review, perhaps the most noteworthy aspect of Judge Miller s ruling is the focus on Rule 26 s proportionality standard. documents out of the 19.5 million may have remained undisclosed, but the Federal Rules of Civil Procedure concerning discovery obligations were nonetheless fulfilled. Da Silva Moore, 287 F.R.D. at 191; In re Biomet 2013 WL , at *3. Conclusion Predictive coding has the ability to save litigants many hours of laborious and costly document review work. Yet the prospect that a number of responsive documents may be omitted from production rests uneasily with counsel and parties who have for decades relied upon the manual review processes. However, as exemplified in Biomet, courts have begun to recognize that no document review and production process is perfect, that perfection is not required, and that emerging technology can therefore play an important role in efficiently fulfilling discovery obligations within the proportionality framework set out in the federal rules. n

6 6 Electronic Discovery Update Proposed Amendments to the Electronic Communications Privacy Act The Electronic Communications Privacy Act 18 U.S.C (1986) ( ECPA ) concerns the ability of third parties, including law enforcement agencies, to access Internet content, including s and social media content. Congress is currently weighing amendments to the ECPA amid a national discussion on the framework for Internet privacy and civil liberties. The amendments that may emerge in the coming session may have an impact on the ability to obtain electronic discovery from Internet sources, as well as the government s ability to obtain content in investigations and prosecutions. Major technology companies, such as Twitter, Microsoft, and Facebook, as well as privacy advocacy groups from across the political spectrum, have been advocating for reform of the ECPA. See Somini Sengupta, Updating an Law From the Last Century, The New York Times, April 24, 2013, available at com/2013/04/25/technology/updating-an- -lawfrom-the-last-century.html. The stated goal for amending the ECPA is to clarify and bolster the privacy rights of The Warshak court reasoned that, given the fundamental similarities between and traditional forms of communication it would defy common sense to afford s lesser Fourth Amendment Protection. individuals with respect to their s and online content. The Senate Judiciary Committee has already unanimously passed a bill, the Electronic Communications Privacy Act Amendments Act of 2013, proposed by Senator Patrick Leahy (the Bill ), that would require the government to obtain a judicial search warrant in order to gain access to personal s and all other electronic content held by a third-party service provider. 113th Cong. S.B. 607 (2013), available at senate-bill/607. The Bill is currently awaiting approval of the full Senate. The most significant amendments proposed by the Bill address the confidentiality of electronic communications, the elimination of the 180-day rule (whereby the warrant requirement concerning the contents of s turned on whether they had been stored unopened for more than 180 days), search warrant requirements and the disclosure of customer information including login and access records. See Bill at 2. The proposed amendments in the Bill reflect the principles in the opinion issued by the court in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). In Warshak, the defendant stood accused of fraud. In the course of its investigation, the United States government compelled Warshak s Internet service provider to provide the content of approximately 27,000 of his s without first obtaining a search warrant. See id. at 283. The court considered whether there is an expectation of privacy concerning the contents of . The court held that a subscriber enjoys a reasonable expectation privacy in the contents of his s that are stored with, or sent or received through, a commercial ISP and that the government may not compel a commercial ISP to turn over the contents of a subscriber s s without first obtaining a warrant based on probable cause. Id. at 288. In deciding the case, the court put most of its focus on the historical protections of the Fourth Amendment as applied to phone calls and letters. The court viewed a search to be in violation of the Fourth Amendment when the government infringes upon an expectation of privacy that society is prepared to consider reasonable. Id. (citation omitted). The Warshak court then articulated a two-prong test to determine whether such a violation has taken place: first, whether the individual by his conduct has exhibited an actual subjective expectation of privacy ; and second, whether society was willing to recognize that expectation as reasonable. Id. at 284. The Warshak court reasoned that, given the fundamental similarities between and traditional forms of communication it would defy common sense to afford s lesser Fourth Amendment Protection. Id. at The proposed amendments to the ECPA reflect this reasoning. continued on next page

7 Electronic Discovery Update 7 The Bill would prohibit providers of remote computing or electronic communication services to knowingly divulge to any Governmental entity the contents of any communication or any record or other information pertaining to a subscriber without a search warrant. Bill at 20. This amendment would prohibit the types of disclosures made by the Internet service provider in Warshak. Additionally, the Bill requires that notice that the warrant has been issued be provided to that customer no more than 10 business days later (although extensions to this time limit can be granted by a court). See Bill at 23. This provision would seek to remedy the absence of a notice requirement in the current ECPA, as noted in Warshak. While the Bill is currently awaiting approval of the full Senate, it is interesting to note the exceptions contained within the proposed amendment. Most notably, its warrant requirement does not apply to any other federal criminal or national security laws, including the gathering of information pursuant to the Foreign Intelligence Surveillance Act (a topic that has attracted much attention The Bill would prohibit providers of remote computing or electronic communication services to knowingly divulge to any Governmental entity the contents of any communication or any record or other information pertaining to a subscriber without a search warrant. in recent months). See Bill at 10. Its practical impact on certain types of proceedings may therefore be limited, but the amendment goes a long way toward addressing the anachronisms in the existing statute. n Proposed Updates to the Federal Rules of Civil Procedure Address Proportionality and Sanctions continued from page 2 pending a motion to dismiss to weed out the cases that cannot proceed. Id. Southern District of New York Magistrate Judge James Francis, also a frequent speaker on e-discovery topics, reassured those worried about the effect the proposals could have on preservation and sanctions, stating that sanctions are highly unlikely events and most judges are reasonable. Id. The philosophies expressed by Judges Scheindlin and Francis were reportedly also shared by Judge Peter Flynn, of the Circuit Court of Cooke County Illinois Chancery Division. Judge Flynn questioned the absurdity of, what he calls, discovery paranoia the urge to turn over the next rock, no matter the consequences. Id. Judge Flynn argued that preservation should be viewed from a business rather than a legal perspective, as the preservation of all unnecessary documents is not a good business practice. Id. While the amendments under consideration by the Committee may ultimately be rejected or take years to become law, it is interesting to note the theme of cooperation present in the proposals. In its notes, the Committee drives this point home: [e]ffective advocacy is consistent with and indeed depends upon cooperative and proportional use of procedure. Proposed Rules at 270. The written comment period on the Proposed Rules closed February 15, n

8 8 Electronic Discovery Update Internet Use at Trial: Solutions for Preventing Jury Misuse of the Internet Courts have increasingly grappled with jury misuse of the Internet during court proceedings. In the age of smartphones, jurors are only a swipe of a touch-screen away from finding information that may inappropriately influence or confuse them. Federal Rule of Evidence 403 was designed to reduce such unfair prejudice and confusion by limiting what information the jury can see during a trial. To reinforce the Rule 403 framework, courts routinely instruct juries not to conduct outside research or follow news about their assigned trial. Traditional instructions to refrain from active research may not be enough, however, because it is easier than ever for jurors to research a case and communicate in their deliberations about the information found. Some judges are testing the efficacy of written juror pledges to prevent these risks, including Judge Shira A. Scheindlin from the Southern District of New York, well known for her electronic discoveryrelated decisions. Additionally, judicial committees across the nation have drafted model jury instructions to more clearly convey the dangers of communicating over social media websites or conducting research on the Internet. Juror Pledge In 2011, Judge Scheindlin oversaw the trial of Viktor Bout, the Russian arms dealer who allegedly provided the inspiration for the 2005 Nicolas Cage film LORD OF WAR. Because of the high-profile nature of the trial and Bout s extensive criminal history, Judge Scheindlin was particularly attuned to the risk that the jury would be inappropriately influenced by media coverage or other outside research, or even be tempted to communicate about the case through social media. She also noted that she was keenly aware that there are convictions set aside all over the country when [the court] learn[s] later during deliberations a juror looked up the keyword or the key name. Colin Moynihan, Judge Considers Pledge for Jurors on Internet Use, N.Y. Times, Sept. 18, 2011, available at As a result, Judge Scheindlin not only instructed the jury to refrain from conducting outside research or communicating about the case; she also required potential jurors during voir dire to sign a pledge stating they would refrain from doing either, with jurors subject to perjury charges if they violated the oath. Id. Judge Scheindlin even excused one potential juror who refused to sign the pledge. See Mark Hamblett, Stop-and-Frisk Judge Relishes Her Independence, N.Y.L.J., May 20, 2013, available at jsp/law/articlejsp?id= ( Stop-and-Frisk ). Similarly, Judge Lloyd A. Phillips, Jr. presiding in a California state court experimented with a juror pledge in Strange v. Entercom Sacramento LLC, No. 07AS00377 (Cal. Super. Ct. Sacramento Cnty., Jan. 25, 2007). In Because of the media attention and the risk that jurors would conduct their own research on the science behind water intoxication given the unusual nature of the case, the court had potential jurors sign written declarations that they would refrain from communicating about the case electronically, including through personal electronic and media devices. Strange, a radio show hosted a contest in which participants drank eight ounces of water every fifteen minutes for as long as they could without going to the restroom. Plaintiff sued after his wife died from water intoxication five hours after finishing in second place in the contest. Because of the media attention and the risk that jurors would conduct their own research on the science behind water intoxication given the unusual nature of the case, the court had potential jurors sign written declarations that they would refrain from communicating about the case electronically, including through personal electronic and media devices. Greg Moran, Revised jury instructions: Do not use the Internet, Union-Tribune San Diego, Sept. 13, 2009 available at One commentator remarked that that court was the first to include such a juror pledge in California. Id. The innovative approaches of Judge Scheindlin and Judge Phillips may influence or continued on next page

9 Electronic Discovery Update 9 Spoliation of Social Media Evidence continued from page 3 provide a roadmap for other judges seeking to protect jurors from the influence of outside research or communication. Modernizing Jury Instructions For judges seeking to prevent improper juror research or communication, modernized jury instructions are also critical to protect the integrity of the judicial system. One scholar has argued that judges must explain to jurors, in non-legalistic language, the rationale for why it is improper to conduct outside research or communicate with others about the case. Thaddeus Hoffmeister, Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age, 83 U. Colo. L. Rev. 409, (2012). To assist judges, the Judicial Conference Committee on Court Administration and Case Management has proposed Model Jury Instructions that include increasingly specific warnings not to conduct outside research or communicate with others about the case through social networking sites. The potency of the instructions lies in their specificity, which is why the committee actually includes in the instructions a list of some of the sites that are most frequented, including Facebook, MySpace, LinkedIn, and YouTube. Given how quickly the Internet changes, in order to maintain the appropriate specificity these rules will need frequent modernizing. For example, the Committee s Proposed Instructions in 2012 added Google+ to the list of sites through which jurors may not communicate about the case; it was absent from the 2009 instructions because Google+ was only launched in Conclusion As Judge Scheindlin put it, lawyers really talk about... social media, GPS, cell sites, data collection, technologyassisted review.... The biggest change in the law is that all these issues that have arisen out of the new world we live in. Hamblett, Stop-and-Frisk, supra. Because the technological landscape is so dynamic, courts are increasingly vigilant to the risk of jury misuse of the Internet. If a judge conducting voir dire does not include a modernized jury instruction, litigators would be well-served in requesting one where appropriate or directing some of their questions to determining jurors use of social media; at the very least, this may serve to remind the jury that there are important limits to Internet use during the trial. n next morning after receiving the discovery request, plaintiff s attorneys instructed plaintiff: [w]e do NOT want blow ups of other pics at trial so please, please clean up your [F]acebook and [M]yspace! Id. Plaintiff first deactivated his Facebook account, then reactivated it and deleted the sixteen pictures. Subsequently he stated in a deposition that he had not deactivated the account. Id. In further discovery proceedings to identify what evidence plaintiff had suppressed, plaintiff s attorney intentionally omitted any mention of the instructing plaintiff to clean up his Facebook account. Id. at 703. The trial court granted an adverse inference instruction against plaintiff, telling the jury to presume that the photograph or photographs [plaintiff] deleted from his Facebook account were harmful to his case. Id. The trial court read the adverse instruction to the jury twice: once while Lester was testifying and again before the closing arguments. Id. Despite the instruction, the jury awarded plaintiff $8,577,000. Id. at 701. Given the deceptive conduct and intentional nature of plaintiff s suppression, however, the court awarded defendant $722,000 in sanctions, with $542,000 due from plaintiff s counsel and $180,000 due from plaintiff. Id. at 703. Conclusion Gatto and Lester are the latest decisions in a growing body of case law holding that courts may apply sanctions as a consequence for the spoliation of social media evidence. It is prudent for parties to understand the potential relevance of social media evidence in certain types of cases and to avoid culpable destruction of relevant data once litigation is reasonably anticipated. Courts increasingly have demonstrated that they will treat the preservation of social media information in the same manner as they do other forms of electronically stored information. n

10 10 Electronic Discovery Update More Circuit Courts of Appeal Follow Race Tires Lead on Cost-Shifting Analysis The use of e-discovery vendors has become a significant and established part of the discovery process in many commercial litigations. Attorneys recognize the highly technical work these vendors perform in processing and analyzing electronically stored information ( ESI ), and the expenses are often assumed to be unavoidable. In the fall 2012 edition of the E-Discovery Update, we discussed whether the 28 USC 1920(4) ( Section 1920(4) ) costshifting provision, that allows fees for exemplification and the costs of making copies to be taxed against a losing party, would provide a new avenue for recovery of these often essential e-discovery costs. At the time, the case law implementing Section 1920(4) was unsettled and inconsistent. While the Third Circuit, in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012) ( Race Tires ), narrowly construed the application of this provision, substantially limiting the ESI vendor costs that could be shifted to the losing party under Section 1920(4), other federal courts have provided for broader cost recovery. The issue remains undecided by any federal court within the Second Circuit. However, since our last Update there have been a number of endorsements of the Race Tires decision by other courts. These decisions have followed the holding of Race Tires, further suggesting that regardless of the costs necessarily incurred by a prevailing party in discharging e-discovery obligations, the courts largely do not believe they are authorized under Section 1920(4) to tax the full spectrum of vendor costs against an opposing party. In Race Tires, the trial court awarded the prevailing defendants over $365,000 in e-discovery vendor costs. On appeal, the Third Circuit addressed the issue of what fees The issue remains undecided by any federal court within the Second Circuit. were taxable under Section 1920(4). Race Tires, 674 F.3d at In analyzing what constituted making copies, the court examined the statute s legislative history, plain text, and prior interpretations of costs that were deemed taxable thereunder. Id. at The Race Tires court differentiated between the actual copying and production of materials, the cost of which the court held was taxable to the losing party, and steps that led up to the production of copies (such as document review or employment of project managers) the cost of which were not taxable. Id. at 169. The court held that only the conversion of native files to TIFF, the scanning of documents to create electronic images, and the conversion of VHS to DVD format were The Race Tires court differentiated between the actual copying and production of materials, the cost of which the court held was taxable to the losing party, and steps that led up to the production of copies (such as document review or employment of project managers) the cost of which were not taxable. taxable as making copies of materials. Id. It reduced the award to $30,000. Id. The Fourth Circuit has recently adopted the Race Tires holdings as to what constitutes taxable costs under Section 1920(4). In Country Vintner of N. Carolina, LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 259 (4th Cir. 2013), the court noted the persuasive reasoning in Race Tires, and limited the costs taxable against the losing party to converting electronic files to non-editable formats and burning the files onto discs. Id. at 260. It thus affirmed the district court s grant of only $218, out of the more than $100,000 originally sought. Id. at 262. The court noted the degree of expertise that might be required of an e-discovery vendor involved in the process, but still followed Race Tires in refusing costs that Congress ha[d] not made taxable under Section 1920(4). Id. at 260. continued on next page

11 Electronic Discovery Update 11 The Federal Circuit also recently barred the recovery of various e-discovery costs under Section 1920(4). CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320 (Fed. Cir. 2013) held that a host of tasks performed by a vendor including keyword searching, document review software training, document decryption, and deduplication fell outside of the scope of Section 1920(4). Id. at Nonetheless, the court permitted the recovery of certain vendor costs, and it explicitly distinguished itself from the Race Tires court by allowing recovery for the costs of hard drive imaging and metadata extraction. Id. at District courts in various other circuits have cited Race Tires and its conclusions when substantially cutting e-discovery costs that were sought as taxable by a prevailing party. See, e.g., Chicago Bd. Options Exch., Inc. v. Int l Sec. Exch., LLC., 2014 WL , at *8-9 (N.D. Ill. Jan. 14, 2014); Phillips v. Wellpoint Inc., 2013 WL , at *6-7 (S.D. Ill. May 16, 2013); Amana Soc y, Inc. v. Excel Eng g, Inc., 2013 WL , at *5-6 (N.D. Iowa Feb. 4, 2013). While it has been influential outside of its jurisdiction, the Third Circuit s opinion in Race Tires has not been the final word on recovering e-discovery costs under Section 1920(4). One jurist in the District Court for the Northern District of California has already explicitly rejected the Race Tires holding in two cases. See Petroliam Nasional Berhad v. GoDaddy.com, Inc., 2012 WL , at *4 (N.D. Cal. May 8, 2012) (taking note of Race Tires but conclude[ing] that in the absence of directly analogous Ninth Circuit authority, broad construction of 1920 with respect to electronic discovery costs under the facts of this case [was] appropriate ); In re Online DVD Rental Antitrust Litig., 2012 WL , at *1 (N.D. Cal. Apr. 20, 2012) (holding that the court had the ability to broadly Race Tires may be viewed as influential if the matter is taken up by the Second Circuit. Until then, Section 1920(4) may still be a tool for recovering vendor fees within the Second Circuit. construe Section 1920 with respect to electronic discovery production costs and, given the specific facts of the case, awarded to plaintiffs over $700,000 in costs, including, among other things,.tiff conversions and professional fees). Id. at *2. Race Tires may be viewed as influential if the matter is taken up by the Second Circuit. Until then, Section 1920(4) may still be a tool for recovering vendor fees within the Second Circuit. But, as more courts adopt Race Tires, the availability of Section 1920(4) as a tool for a prevailing party to seek reimbursement for large vendor costs seems less promising. n

12 NEW YORK 1177 Avenue of the Americas New York, NY SILICON VALLEY 990 Marsh Road Menlo Park, CA PARIS 47, avenue Hoche Paris (33-1) The Ethical Discovery of Social Media Data The term social media is constantly evolving to include new forms of Internet-based interaction. User profile sites like MySpace, Facebook, and LinkedIn and the data stored therein have been at the heart of much litigation, often with disputes focusing on whether certain social media content is discoverable or not. New platforms such as Twitter, Instagram, Tumblr and Pinterest present litigants with additional and potentially bountiful sources of evidence. To be sure, as exciting new social media products hit the market, privacy settings and account security can become increasingly difficult to effectively manage, and unwary individuals may unintentionally expose their social media accounts to informal discovery. Concomitant with the potential benefits to litigants of discoverable social media content comes the difficult task of maintaining an appropriate and ethical approach to social media investigations and informal discovery. In 2010, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics issued a formal opinion, titled Obtaining Evidence From Social Networking Websites. New York Bar Ass n, Obtaining Evidence From Social Networking Websites (2010), available at http: nycbar.org/ethics-opinions-local/2010-opinions. The advisory opinion focused on direct or indirect use of affirmatively deceptive behavior to friend potential witnesses, and other forms of gathering information for litigation under false pretenses. Id. In its decision, the Committee concluded that a lawyer may not use deception to access information from a social networking webpage and that instead, lawyers should rely on the informal and formal discovery procedures sanctioned by the ethical rules and case law to obtain relevant evidence. Id. Further echoing the Committee on Professional and Judicial Ethics, The Sedona Conference Primer on Social Media noted that [w]hile tempting, it may be a violation of the Rules of Professional Conduct for a lawyer to request greater access to a user s account under pretext, without being forthright about the request and fully disclosing the purpose of the request. The Sedona Conference Working Group Series, Primer on Social Media, p. 57 (Oct. 2012), available at https://thesedonaconference.org/publication/ sedona-conference%c2%ae-primer-social-media. As a result, counsel for litigants cannot seek access to data that is not readily available to the general public without clearly identifying oneself and the representation. The Committee on Professional and Judicial Ethics further advised that through the informal discovery process, the ethical line is not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements. With this guidance and context, the privacy settings on a given social media platform become crucial to those seeking to limit the potential for informal discovery. When all of an individual s information is available for public viewing, pretextual investigations are not an issue. But when privacy safeguards block an attorney from accessing information without user acceptance, both attorneys and users alike should be wary of opening the door to improper discovery or unwanted disclosures with a simple click of the mouse. n For their contributions to this issue of the Electronic Discovery Update, we recognize and thank Kramer Levin associate Daniel Lennard, and summer associates Tai Aliya, Leah Friedman, Andrew Pollack, Josh Rittenberg, and Harold Robinson.

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