If You Are Proposing An In Camera Review, Try To Make It As Easy As Possible For The Judge

When lawyers are arguing over whether documents were properly withheld from production on the basis of attorney-client privilege, one side or the other will often say "let's have the Judge do an in camera review."  (Translation for nonlawyers reading this blog: let's drop all these documents on the Judge and let him or her decide).

Judges love this procedure, right? That would not be so.

A very short opinion the other day from the Business Court in Crockett Capital Corp. v. Inland American Winston Hotels is a good illustration. The decision suggests it is a good idea for both sides to take steps to make such a review as easy as possible for the Judge. There's also a good point on the scope of attorney-client privilege.

The Documents For The In Camera Review Were Highly Repetitive

The parties were arguing over redactions made to a number of emails on claimed grounds of privilege. In the ensuing in camera review. The parties provided what the Court described as "two large three-ring binders," one of which had clean copies of the claimed-to-be-privileged emails and the other of which had redacted copies of the emails produced.

We all know that emails proliferate like bunnies. The problem for the Court was that the emails in the binders had done exactly that. They were repeated over and over, in what the Court described as "repetitive strings of the same email time and time again." 

There's a process in e-discovery called "deduplication," which eliminates redundant copies of electronic documents. The lack of deduplication did not make the Court happy. Here's a quote:

Seldom has the Court been called upon to waste so much of its time because counsel did not fulfill their responsibilities in the meet and confer required by the Court's Local Rule 18.6. . . . It is apparent that counsel did not sit down and look at the documents. If so, they surely would have realized that the Court was being asked to look at repetitive strings of the same email time and time again. . . . If counsel had met and conferred they would have provided the Court with one copy of each email string rather than the copy for each recipient and saved the Court hours of wasted time. Eighty percent of the  documents would not have required Court review if counsel had done their job.

That the documents were in electronic format was not an excuse. The Court said:

Discovery in a digital age is expensive and difficult. That does not relieve counsel  of their obligation to carefully review documents and to sit down with the documents before them in a meet and confer and reduce to the fullest extent work required by the Court. Such scrutiny obviously did not occur in this case.

Privilege Issues

The Court also questioned some of the claims of privilege, which involved documents exchanged between businesspeople but copied to lawyers. The Court described these as "emails on which lawyers were simply copied with information about business decisions and no advice was sought or given."

It said: "[b]usiness decisions are not protected just because a lawyer is copied on a memo. Businessmen making business decisions may not hide behind their lawyers. Lawyers making business decisions cannot hide behind a privilege."

A Message From The North Carolina Business Court About E-Discovery

There isn't much out there in the way of a road map from North Carolina's state courts on how lawyers should fulfill their obligations to produce electronically stored information. So you might want to take notice of a little bit of direction in today's Order from the Business Court in Hill v. StubHub, Inc.

By a little bit of direction, I mean exactly that.  It's only this tidbit from the last paragraph of the Order, where Judge Tennille said:

Attached hereto is an opinion from Magistrate Judge Andrew Peak in William A. Gross Construction Association, Inc. v. American Manufacturers Mutual Insurance Company.  It contains a message for counsel. 

What's the message of American Manufacturers?  Well, that case involved a dispute between parties about how a keyword search of an email database in the hands of a non-party ought to be done.  The parties disagreed on what words ought to be searched for.  One wanted narrow terms, the other broad terms, and no one had bothered to talk to the party that held the emails about what would make sense.

Instead of making any deliberate effort to resolve the issue, the parties dropped the problem in Judge Peck's lap.  He wasn't happy about being the decider, noting that he was "no keyword expert."  He said:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.  Prior decisions . . . have warned counsel of this problem, but the message has not gotten through to the Bar in this District.

Judge Peck said he was delivering a "wake-up call to the Bar."  He said that "[i]t is time that the Bar -- even those lawyers who did not come of age in the computer era -- understand" what it takes to craft an appropriate keyword search.  He stressed the "need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms . . . to be used to produce emails or other electronically stored information."

So, that's the "message" conveyed today by Hill v. StubHub. Judge Tennille told the parties that they had twenty days "to meet and confer and agree upon a word search that is carefully crafted with the appropriate keywords determined after consultation with StubHub's ESI custodians."  He also ordered the parties to "address quality control and testing in their discussions and, if the volume of documents is excessive, use of appropriate sampling methodologies."

North Carolina May Require Licensing For Computer Forensic Consultants, But Do We Need It?

In cases in the Business Court, the lawyers are often assisted by computer forensics experts in dealing with electronic discovery issues. That’s becoming almost essential in complicated business cases.

Anyone can do this type of work right now.  I get regular phone calls and emails from people pitching this type of work.  But there is regulation in the works in North Carolina to clamp down on who can provide computer forensic services.

The North Carolina Board which regulates private investigators is looking at proposing legislation that would require that someone be a licensed private investigator before being able to do computer forensics work. Regulation in this area isn’t a revolutionary idea. You have to be licensed in some states to analyze electronically stored information, although there are great variances from state to state. Kessler International recently did a national survey on state licensing requirements.  An American Bar Association Committee recently issued a report recommending against such licensing, as discussed below.

The driving force for the North Carolina legislation is the Private Protective Services Board, which regulates private investigators and others in the "private protective services professions."  The Board is working on amendments to N.C. Gen. Stat. Chapter 74C to require a private investigator’s license for anyone doing computer forensics consulting.

Here's a draft of the legislation, which was recently approved by the Board's Computer Forensics Committee. It creates a new license category for a "Digital Forensics Examiner," which it defines as "any person who, on a contractual basis, engages in the profession of or accepts employment to conduct examinations of digitally stored data in order to recover, image, analyze, or examine such data to determine responsibility and/or reconstruct usage of such data."  A person seeking such a license will need to have 3,000 hours of experience in digital forensics or a closely related field in order to be licensed, and to have completed basic training offered by the company supplying the analysis software used by the licensee.

The Board provided me with excerpts from other committee meetings at which the amendments were discussed, and also the draft minutes from the June 9, 2008 meeting of the committee.

Attorneys are exempt from the current statute, as are their agents, “provided the agent is performing duties only in connection with his or her principal’s practice of law.” G.S. §74C-3(b)(4). That exemption presumably would continue if the statute is amended, so this legislation may not prove to be a major issue for litigation matters if a lawyer retains the consultant, but if a client hires a consultant to perform analysis before litigation, that might be an issue. 

The proposed amendment also exempts accountants and others it defines, including "persons employed to conduct network security operations up to the point of responsibility for network security violations," and "members of network security compromise response teams."

The American Bar Association's Section of Science and Technology Law is also looking at this issue, and has come to a completely different conclusion regarding the need for licensing. The Report from the Section concludes that there shouldn't be licensing, and recommends that the ABA should take a position discouraging the states from enacting regulatory legislation. Their rationale is that this is a technical area outside the expertise of those regulating private investigators, that there are professional certification programs available for forensic specialists, and that judges can in the final analysis determine whether a person is qualified to testify about the forensic work that he or she did. (Thanks to the TechDirt blog for this information).

Electronically Stored Information: New Sedona Principles On Preservation Of ESI

The small Arizona town of Sedona is one of the centers of the e-discovery universe, and the Sedona Conference's Best Practices for dealing with electronic discovery issues have been favorably referenced by many Courts, including the North Carolina Business Court (see here and here).

Now, the Conference has put out a Commentary on Preservation, Management and Identification of Sources of Information that are not Reasonably Accessible.  Why should you care about that?

The answer is that the term "reasonably accessible" is contained in Rule 34 of the Federal Rules of Civil Procedure, governing document production, which says that "a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."  (North Carolina Rule 34, last amended twenty-one years ago with a quill pen, contains no such language).

The new Commentary contains detailed guidelines for determining how to make the determination of accessibility, and when electronic information should be preserved.  The Guidelines themselves are below, from the Electronic Discovery Law blog (which is a great resource for court decisions on e-discovery matters) but the Commentary itself contains many useful examples and case citations and is worth reading.   

Guideline 1. Where litigation is anticipated but no plaintiff has emerged or other considerations make it impossible to initiate a dialogue, the producing party should make preservation decisions by a process conforming to that set forth in the Decision Tree in Figure 1.

Guideline 2. As soon as feasible, preservation issues should be openly and cooperatively discussed in sufficient detail so the parties can reach mutually satisfactory accommodation and also evaluate the need, if any, to seek court intervention or assistance.

Guideline 3. In conjunction with the initial discussions or where appropriate in the response to discovery requests, parties should clearly identify the inaccessible sources reasonably related to the discovery or claims which are not being searched or preserved.

Guideline 4. A party should exercise caution when it decides for business reasons to move potentially discoverable information subject to a preservation duty from accessible to less accessible data stores.

Guideline 5. It is acceptable practice, in the absence of an applicable preservation duty, for entities to manage their information in a way that minimizes accumulations of inaccessible data, provided that adequate provisions are made to accommodate preservation imperatives.

Guideline 6. An entity should encourage appropriate cooperation among legal and other functions and business units within the organization to help ensure that preservation obligations are met and that resources are effectively utilized.