CACD Mag. Judge Mumm Addresses e-Discovery Fundamentals in Katz Litigation
Magistrate Judge Frederick F. Mumm (Central District of California) recently issued a case management order in In re: Katz Patent Litigation covering a number of common e-discovery issues:
- document preservation
- document production formats
- meet and confer obligations
- production of audio-video recordings
Patent litigators will immediately recognize the name Ronald A. Katz. Mr. Katz obtained a very broad patent covering such diverse activities as customer service, securities trading, merchandising, home shopping, etc. Mr. Katz, based in Los Angeles, has systematically enforced his patent in lawsuits and licensing initiatives around the country; earning enviable licensing fees, but becoming rather unpopular in some circles in the process.
Magistrate Judge Mumm has been assigned to oversee discovery for several cases brought by Mr. Katz that are consolidated for discovery. In cases of this magnitude, even trivial matters are often contested. Indeed, the case management order itself could not be stipulated, requiring argument before Judge Mumm.
The attached order gives general insight into Judge Mumm's view of electronic discovery obligations.
Discovery Order Highlights:
1. The parties' obligation not to destroy documents relevant to the current litigation began upon the filing of suit or the notice of the intent to file suit, whichever came first.
2. This obligation extends to all types of documents, including e-mail. If any party has specific concerns about their preservation obligations, and the related burden and expense, that party may move the Court for a reprieve from those obligations.
3. The fact that a party had a document retention policy in place prior to filing or notice of suit that permitted destruction is not, without more, a justification for destruction of relevant documents.
4. Neither party need deviate from the practices it normally exercises when not in anticipation of litigation with regard to the preservation of (i) audio or video information; (ii) deleted files; or (iii) electronic media utilized primarily for back-up or disaster recovery purposes (e.g., recycling of backup tapes is permitted).
5. To the extent a party normally records audio and/or video of customer calls for quality assurance or training and ceases to make such recordings during the pendency of this action, such party must maintain a sample of at least 24 hours of such calls.
6. Defendants shall make their production in searchable electronic plain-text format to the extent their documents are maintain in that way in the ordinary course of business; otherwise, defendants will produce native graphic files, image documents or hard copies depending on the manner in which such documents are kept in the ordinary course of business.
7. Each party shall identify up to 15 employees or representatives ("custodians") most likely to have relevant e-mails in their files.
8. Following identification of the custodians, the parties shall meet and confer regarding production of emails and shall attempt to agree on the identity of electronic search terms to be run against the personal and network email files of the designated custodians.
9. Documents maintained in electronic form in the ordinary course of business or scanned into electronic form before the date of production shall be produced in electronic form.
10. Where reasonably feasible, such documents shall be produced in electronic format with TIFF images and load files (that indicate beginning and ending of each document).
11. To the extent that materials are maintained in the ordinary course of business in electronic plain-text (e.g., ASCII text) files or otherwise existing in a format not reasonably readable and usable other than their native format, such documents shall be produced in their native format. The producing party shall identify any associated software that is necessary to read and search materials produced in native format and shall, if necessary, assist the receiving party in obtaining such software. It shall be the responsibility of the receiving party to pay for any necessary software licenses.
Discussion:
Judge Mumm initially addresses the document preservation obligation, requiring that all relevant documents be kept from and after the date of filing suit or receipt of notice to file suit, whichever came first. This is the first step to proper e-discovery compliance, and must be addressed immediately by counsel upon receipt of any new case.
As Judge Mumm pointed out (No. 4, above) it is acceptable practice to continue document destruction policies with regard to information not relevant to litigation, including deletion of files and recycling of backup tapes.
But it is imperative that counsel segregate relevant documents immediately upon notice of litigation (or potential litigation) and cease document destruction and backup tape recycling as to those documents.
Judge Mumm also required counsel to exchange search terms to be run against the documents of potential custodians as a means of identifying relevant documents. This is a very important step in e-discovery.
Search terms provided to opposing counsel need to carefully track all issues in the case identified in the base pleadings. It takes considerable creativity and thought to develop the right list of search terms--a list that is both tied to the allegations of the case and is broad enough to capture documents using words other than those used by counsel in the complaint.
Remember that document requests in federal court can no longer seek information "reasonably calculated to lead to discoverable evidence." Changes to FRCP Rule 26 Advisory Committee Notes in 2000 narrowed the scope of allowable discovery to information "relevant to the claims or defenses of any party."
As Judge Mumm pointed out in resolving a related motion to compel entered prior to the case management order:
The Advisory Committee Notes to the 2000 change in language in Rule 26..."signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings." 192 F.R.D. 340, 389 (2000). Hence, the question is whether [the claims] are sufficiently "identified in the pleadings" to permit discovery related thereto.
Because of this narrowing of "relevancy" under FRCP Rule 26, significant attention must now be given to drafting discovery, and to exchanging search terms with opposing counsel.
Judge Mumm also addressed document production format in some detail. The preferred method of production seemed to be TIFF images (and load files) together with searchable text, insofar as the documents (converted to TIFF) were originally maintained in word searchable form.
This is consistent with most lawyers' desire to produce in TIFF images with Bates numbering, with a load file for Concordance or Summation. However, this method of production eliminates metadata. Nothing in Judge Mumm's order addressed production of metadata.
This production order implies, but does not explicitly state, that producing parties must provide OCR with TIFF images for documents maintained in word-searchable form. In reality, most receiving parties would rather do their own OCR process to assure the highest quality of OCR, rather than risk receiving a lower quality OCR from an opponent.
This case is in its early stages, and promises more opportunities to test Judge Mumm in electronic discovery issues. A special discovery master has also been appointed in the case. We will track future rulings in the case as they become available.
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