January s Notable Cases and Events in E-Discovery

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1 JANUARY 16, 2018 SIDLEY UPDATE January s Notable Cases and Events in E-Discovery This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues: 1. Dec. 1, 2017 amendments to Rule 902 of the Federal Rules of Evidence that make it easier to authenticate certain forms of digital evidence before trial via a written certification from a custodian or other qualified person in lieu of live trial testimony 2. a Southern District of New York decision upholding the City of New York s training and review processes in connection with a technology-assisted review (TAR) and finding an in camera submission on those processes to be work product but also ordering that sample nonresponsive documents be shared with plaintiffs 3. a Northern District of Illinois order granting plaintiffs request to compel the City of Chicago to include Mayor Rahm Emanuel and certain members of his staff as custodians for an search of documents related to an alleged off the books police detention center in Chicago 4. an Eastern District of Wisconsin ruling granting a plaintiff s motion to compel reproduction on an unredacted basis of over 600 documents previously produced with extensive nonresponsive redactions 1. On Dec. 1, 2017, important amendments regarding the authentication of digital evidence under Rule 902 of the Federal Rules of Evidence took effect that make it easier to authenticate certain forms of digital evidence before trial via a written certification from a custodian or other qualified person in lieu of testimony by a witness. A proponent of evidence must ordinarily authenticate such evidence by providing proof sufficient to support a finding that the item is what the proponent claims it is. Fed. R. Evid. 901(a). Rule 901(b) sets out various examples of evidence that would satisfy the authentication requirement, the most common example being testimony of a witness with knowledge that the item is what it is claimed to be. Fed. R. Evid. 901(b)(1). Rule 902 provides that certain documents are self-authenticating and thus require no extrinsic evidence of authenticity to be admissible. Fed. R. Evid Among the categories of self-authenticating documents are certified copies of public records, official publications, newspapers, and certified domestic and foreign records of a regularly conducted activity (more commonly referred to as business records). Fed. R. Evid. 902(4), (5), (6), (11) & (12). Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Attorney Advertising: For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Ave., New York, NY 10019, ; 1 S. Dearborn, Chicago, IL 60603, ; and 1501 K St., NW, Washington, DC 20005,

2 Page 2 With respect to business records, an original or copy of a business record is authenticated when a custodian or other qualified person certifies in writing that the document meets the hearsay requirements of Rule 803(6). Fed. R. Evid. 902(11) & (12). In addition, before the trial or hearing, the proponent must give the adverse party a fair opportunity to challenge the authenticity of the evidence. This requires giving reasonable written notice of the intent to offer the business record and making the record and certification available for inspection. The December 2017 amendments to Rule 902 provide two additional categories of evidence that can be selfauthenticated. The Advisory Committee Notes point out that more often than not the authentication of digital evidence goes unchallenged, meaning the expense and inconvenience of producing an authenticating witness for this evidence is often unnecessary. Fed. R. Evid. 902, Committee Notes on Rules 2017 Amendments. Given the often unnecessary burden of using live testimony to authenticate digital evidence, the amendments now permit authentication of certain digital evidence via a written certification. First, under the new Rule 902(13), parties can self-authenticate a record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person. Records implicated by Rule 902(13) might include digital evidence used to show that a USB device was connected to a computer, that a server was used to connect to a particular webpage or that a digital photograph was taken at a particular time and from a particular place. For a digital photograph, for example, a written certification under Rule 902(13) might include a forensic technician s explanation of how a smartphone s software captures the date, time, and GPS coordinates of each picture taken. This would be sufficient to show that the photo was taken at a particular time and from a particular place while removing the need for live testimony of the forensic technician at trial. Examples of evidence that might be authenticated under Rule 902(13) are discussed in a memorandum to Hon. Jeffrey S. Sutton, Chair, Standing Committee on Rules of Practice and Procedure from Hon. William K. Sessions, III, Chair, Advisory Committee on Evidence Rules, at 6-8 (May 7, 2016), Second, under Rule 902(14), parties can self-authenticate [d]ata copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification. The Advisory Committee notes explain that data copied from an electronic device is ordinarily authenticated by a comparison of the relevant hash values though this is not the only way to authenticate copied data. Fed. R. Evid. 902, Committee Notes on Rules 2017 Amendments. A document s hash value is represented by an alphanumeric sequence of characters unique to that document (the document s digital fingerprint ), such that if an original and copy have the same hash value, there is a very high probability that the documents are identical. See Hon. John M. Facciola & Lindsey Barrett, Law of the Foal: Careful Steps Towards Digital Competence in Proposed Rules 902(13) and 902(14), 1 GEO. L. TEC. REV. 6 (2016). Accordingly, a written certification from a forensic technician might explain how the technician went about comparing the hash value of the original data with the duplicate. Under the new Rules 902(13) and (14), the proponent of evidence must comply with the certification and notice requirements set forth in Rules 902(11) or (12). Accordingly, the proponent must have a custodian or other qualified person sign a certification explaining why the records or data meet the requirements of Rule 902(13) or (14), and the proponent must give the adverse party notice and an opportunity to challenge authentication. This has the effect of shifting the burden to the adverse party to raise any issues with the authenticity of the proffered digital evidence.

3 Page 3 That said, beyond providing a new procedure for the self-authentication of digital evidence, the amendments do not otherwise alter the underlying standard for authenticating digital evidence. The burden of establishing authenticity remains with the proponent of the evidence, who must still present information in the certification sufficient under Rule 901(a) to support a finding that the digital evidence is what it purports to be. In addition, an adverse party is still free to challenge the authenticity of the evidence or challenge the admissibility of evidence authenticated under Rules 902(13) or (14) on other grounds including hearsay, relevance, or, in criminal cases, the right to confrontation. 2. In Winfield v. City of New York, 2017 WL (S.D.N.Y. Nov. 207, 2017), United States Magistrate Judge Katharine H. Parker upheld the City of New York s training and review processes in connection with a technology assisted review (TAR) and found an in camera submission on those processes to be work product but also ordered that sample nonresponsive documents be shared with plaintiffs. Plaintiffs, three African-American residents of New York City, brought a disparate impact claim against defendant City of New York challenging a component of the City s affordable housing programs the Community Preference Policy claiming that this policy has a disparate impact on African-American and Latino applicants in neighborhoods of opportunity, which they assert are predominantly white. Id. at *1. During discovery, plaintiffs raised issues about the city s review and production of electronic documents. Id. at *2. Specifically, plaintiffs complained that the city overdesignated documents in prior review populations as nonresponsive, which plaintiffs claimed affected the reliability of the city s predictive coding processes as a whole. Plaintiffs sought, among other things, an order directing the city to provide plaintiffs with samples of the nonresponsive documents. The genesis of this dispute was a disagreement over what search terms should be used in connection with the city s review of electronic documents collected from custodians. The parties first agreed to a list of custodians and the search terms to be applied to their electronically stored information (ESI), and after application of those search terms, the city began reviewing documents that were identified by the search process. Id. at *4. But after plaintiffs lodged numerous complaints about the pace of discovery and document review, which initially involved only manual linear review of documents, the court directed the city to complete linear review as to certain custodians and begin using TAR software to expedite the review. Following its production of documents from this first set of custodians and search terms, the city commenced a review of ESI gathered from a separate set of custodians. Id. at *5. The city developed search terms, but plaintiffs objected to the city s list of terms and proposed over 800 additional search terms to be run on the document population from the second set of custodians. After further negotiation the city agreed that it would apply plaintiffs modified set of search terms to a more manageable number of documents identified by the city s predictive coding process. Plaintiffs objected, concerned about the reliability of that process. In response to plaintiffs concerns, the magistrate judge required the city to submit a letter for in camera review describing its predictive coding process and training for document reviewers. She also ordered briefing on plaintiffs challenges to the city s review and production processes. In sum, the plaintiffs motion alleged the

4 Page 4 city s TAR training and review processes were faulty and overdesignated documents as nonresponsive in a manner that negatively affected the TAR process. Id. at *6. Before addressing the issue in dispute, Magistrate Judge Parker reviewed briefly the discovery in the case, stating that the plaintiffs had sought wide-ranging discovery, which the City has resisted vigorously. Id. at *4. She stated that she had issued various orders to ensure that discovery is focused on information that is relevant and proportional to the needs of this case and was directing phased discovery and limiting some of Plaintiffs discovery demands. Id. at *4. Turning to the current dispute, Magistrate Judge Parker ruled there was no evidence of gross negligence or unreasonableness in the city s TAR training or review processes. In reaching this conclusion, the magistrate judge first noted that the producing party is in the best position to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information. Id. at *9 (quoting Hyles v. New York City, 2016 WL , at *3 (S.D.N.Y. Aug. 1, 2016) (citing Principle 6 of the Sedona Conference)). She further stated that the standard for discovery is reasonableness, not perfection, and concluded there was nothing about ESI production that should cause courts to insert themselves as supermanagers of the parties internal review processes, including training of TAR software in the absence of evidence of good cause, such as a showing of gross negligence in the review and production process, the failure to produce relevant specific documents known to exist or that are likely to exist, or other malfeasance. Id. (citations omitted). The magistrate judge reviewed the city s detailed training provided to its document review team and found that the city s training, review processes, and protocols presented no basis for finding that the city engaged in gross negligence in connection with its ESI discovery. Id. at *10. She found that more than 7,200 documents had been reviewed and used as part of the seed set in training the system. Although plaintiffs were able to point to human error in the categorization of certain privileged and responsive documents, neither the magistrate judge nor plaintiffs identified anything in the TAR process itself that is inherently defective; rather, Plaintiffs objections are premised upon human error in categorizing a small subset of documents as responsive or non-responsive. Magistrate Judge Parker therefore found no evidence of gross negligence or unreasonableness in the city s TAR training or review processes. Although the magistrate judge disagreed with plaintiffs assertions that the TAR process as a whole was defective, she nevertheless found that plaintiffs had presented sufficient evidence to justify their request for sample sets of nonprivileged documents designated as nonresponsive, as some of the examples that plaintiffs presented suggested some human error in categorization that may have led to gaps in the City s production. Id. at *11. Therefore, the magistrate judge ordered the city to provide plaintiffs with 400 nonprivileged documents designated as nonresponsive from different searches. The magistrate judge rejected plaintiffs request for access to the information the city submitted for in camera review about its TAR training and processes, finding that such material was protected as work product. She also did not require the city to provide plaintiffs with information about its ranking system used in making responsiveness determinations but in the interests of transparency and cooperation encouraged the city to share such information with Plaintiffs. Id. at *12.

5 Page 5 3. In Mann v. City of Chicago, 2017 WL (N.D. Ill. Sept. 8, 2017), Magistrate Judge Mary M. Rowland granted plaintiffs request to compel the City of Chicago to include Mayor Rahm Emanuel and certain members of his staff as custodians for an search of documents related to an alleged off the books police detention center in Chicago. In this consolidated litigation, plaintiffs alleged that they were wrongly arrested, detained and abused at an alleged off the books police detention facility and sought to represent a proposed class of other persons subjected to unconstitutional police practices at the same facility. Id. at *1. Among plaintiffs allegations was a claim against the City of Chicago for constitutional violations based on Monell v. Dep t of Soc. Servs., 436 U.S. 658 (1978). As part of discovery related to the Monell claim, plaintiffs requested that the city use certain terms to search the s of Mayor Rahm Emanuel and 10 members of his senior staff. The city agreed to search the s of two members of the mayor s staff responsible for liaising with the Chicago police department but would not agree to the full list of plaintiffs proposed custodians. Plaintiffs moved to compel, arguing that communications involving these custodians were relevant to the Monell claim. Mann, 2017 WL , at *2. The city responded that plaintiffs had failed to provide reasons to believe that the custodians were involved in the detention facility and argued that plaintiffs request was burdensome. Magistrate Judge Rowland first considered whether the s of the proposed custodians might have information relevant to the Monell claim. Id. at *3-*4. To succeed on that claim, plaintiffs would need to show either that the city had a well-settled custom or practice that caused their constitutional injury or that an individual with final policy-making authority caused the constitutional injury. Id. at *2. On either theory, the magistrate judge concluded that discussions internal to the mayor s office about the detention facility would be relevant. Id. at *3. The city had argued that plaintiffs lacked a factual basis for searching the s of these custodians, but Magistrate Judge Rowland noted that plaintiffs do not need to present evidence of this connection to get discovery potentially showing such a connection. Id. at *3. The city also relied on cases denying requests to compel depositions of public officials, but Magistrate Judge Rowland found these decisions distinguishable because searching the s of the mayor and his staff would not take them away from their official duties. Magistrate Judge Rowland next considered the city s argument that searching the of these custodians would be burdensome. Id. at *5 (citing Fed. R. Civ. P. 26(b)(2)(C)(iii) (a discovery request can be denied if the burden or expense of the proposed discovery outweighs its likely benefit )). In opposing the motion to compel, the city did not offer specifics as to why the search would be burdensome, nor did it offer an estimate of the time and cost associated with the search. Even though the city argued that it could not determine the burden before undertaking the search, Magistrate Judge Rowland noted that the city should have nonetheless provided an estimate of the burden. Magistrate Judge Rowland also noted that the importance of the Monell issues at stake in the litigation weighed in favor of permitting the discovery. Magistrate Judge Rowland thus held that the city had not made a sufficient showing that compliance with the discovery request be burdensome, though she did exclude four of the 10 custodians from plaintiffs proposed list because of the short tenure of those custodians in the mayor s office.

6 Page 6 Finally, Magistrate Judge Rowland denied plaintiffs request for sanctions, finding that the city s conduct was not sanctionable and concluding that both parties had undertaken diligent efforts to work together on discovery matters. 4. In IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, 2017 WL (E.D. Wis. Oct. 26, 2017), U.S. District Court Judge Pamela Pepper granted a plaintiff s motion to compel reproduction on an unredacted basis of over 600 documents previously produced with extensive nonresponsive redactions. Plaintiff s motion to compel sought production of unredacted documents from defendants. Id. at *1. Specifically, plaintiff alleged that over 600 documents produced by defendants had been unilaterally redacted and argued that defendants should not be allowed to redact large swaths of information in an otherwise responsive document merely because defendants deemed such information irrelevant. Defendants contended that the material they redacted from the documents was not relevant to the case and that the parameters of this case did not allow plaintiff to peruse and explore all aspects of defendants contractual and financial relationships with its customers other than the ones relevant to plaintiff s claims. Id. at *2. The court disagreed with defendants position and found their redactions to be inappropriate. In making its ruling, the court expressed appreciation that defendants had described each redacted document in a declaration but found that these descriptions did not suffice to cure the extensive redactions. The court noted that the practice of redacting for nonresponsiveness or irrelevance has no explicit support in the Federal Rules of Civil Procedure, and the only bases for prohibiting a party from seeing a portion of a document in the rules are claims of privilege and work-product protections. Id. (citing Burris v. Versa Products, Inc., 2013 WL , at *3 (D. Minn. Feb. 19, 2013) (citing Fed. R. Civ. P. 26(b)(5)). The court also did not agree that plaintiff must take Defendants word for it that the redacted portions of the documents were not relevant to plaintiff s claim. IDC, 2017 WL , at *3. Finally, the court stated that defendants did not provide a compelling reason for the court to allow the extensive redactions. The court rejected defendants reliance on In re Takata Airbag Prods. Liab. Litig., 2016 WL (S.D. Fla. Feb. 24, 2016), where a court allowed the defendants to redact documents as nonresponsive because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders. The court indicated that this case was distinguishable because defendants made no effort to explain why the protective order entered in this matter did not adequately protect their information. For these reasons, the court granted plaintiff s motion to compel production in full of the documents previously produced with redactions. If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work. Sidley E-Discovery Task Force The legal framework in litigation for addressing the explosion in electronic communications has been in flux for a number of years. Sidley Austin LLP has established an E-Discovery Task Force to stay abreast of and advise clients on this shifting legal landscape. An interdisciplinary group of more than 25 lawyers across all our domestic offices, the Task Force monitors and examines issues

7 Page 7 and developments in the law regarding electronic discovery. The Task Force works seamlessly with our firm s litigators who regularly defend and prosecute all types of litigation matters in trial and appellate courts, federal and state agencies, arbitrations and mediations throughout the country. The co-chairs of the E-Discovery Task Force are Alan C. Geolot ( , ageolot@sidley.com), Robert D. Keeling ( , rkeeling@sidley.com) and Colleen M. Kenney ( , ckenney@sidley.com). To receive Sidley Updates, please subscribe at BEIJING BOSTON BRUSSELS CENTURY CITY CHICAGO DALLAS GENEVA HONG KONG HOUSTON LONDON LOS ANGELES MUNICH NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships as explained at