There is a lot of talk these days about the impossibly high costs and absurd amounts of time attorneys spend on e-discovery. Everyone is looking for the best way to make the process more efficient and less time-consuming.
So it is reassuring when a federal judge recognizes that need, and does his part to eliminate careless document review agreements.
Earlier this month, a New Jersey District Judge wrote just that sort of opinion. The savvy judge seems to have his priorities straight….
The Law Technology News has the details of I-Med Pharma, Inc. v. Biomatrix Inc.:
A federal judge in a contract case has excused compliance with a discovery agreement that would have required the plaintiff to produce an estimated 65 million documents, finding it would cost too much to screen them for privilege.
“This case highlights the dangers of carelessness and inattention in e-discovery,” District Judge Dickinson Debevoise wrote in a Dec. 9 ruling. “While Plaintiff should have known better than to agree to the search terms used here, the interests of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.
The case deals with I-Med Pharma, a medical supply manufacturer and distributor, who had exclusive Canadian distribution rights to Biomatrix’s eyecare products. After Biomatrix merged with a company called Genzyme, the new company allegedly stopped providing I-Med the product. I-Med sued for breach of contract.
During discovery, I-Med agreed to a forensic keyword search of its computer networks, servers, and storage devices. I-Med made the mistake of not limiting the search to active files or particular time periods. The company also allowed search of “unallocated space,” where deleted and temporary files are kept.
The uber-broad search criteria turned out to be a problem, unsurprisingly. Just in the unallocated space alone, the term generated more than 64 million hits, which represented somewhere around 95 million pages of data. [FN1] Yeesh. I-Med realized they shouldn’t have agreed to the search conditions, because conducting privileged review on that scale would cost so much money and time. The company asked the magistrate judge in the case for relief from the stipulation.
Back in September, Magistrate Judge Michael Shipp decided to cut out the unallocated space from document review. He also said Biomatrix could get reimbursed for the forensic costs. But Biomatrix didn’t like that. The company appealed Shipp’s ruling.
On December 9, District Judge Dickinson Debevoise (what an amazing name!) affirmed the magistrate decision in an unpublished opinion. The ruling is refreshing in its concern for practicality and reasonableness. Specifically, Debevoise understood that going through tens of millions of files in unallocated space — i.e., the back-alley dumpsters of computer storage — might not be worth the effort.
A privilege review of 65 million documents is no small undertaking. Even if junior attorneys are engaged, heavily discounted rates are negotiated, and all parties work diligently and efficiently, even a cursory review of that many documents will consume large amounts of attorney time and cost millions of dollars.
Judge Debevoise realized people make mistakes. In a non life-and-death situation like this, why keep banging your head against the wall when it feels so much better to stop and find a compromise instead? He explained:
A court could not effectively perform its duty to fairly and efficiently manage discovery if every minor change to a stipulated briefing schedule or deposition date required a showing of “exceptional circumstances” or “substantial and real harm.” While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.
Anyone who deals with document review has probably heard this before, but Debevoise’s ruling is a good reminder: Even though lawyers exist in an adversarial system, judges are wising up. They don’t have patience for attorneys who waste time and money fighting tooth-and-nail over e-discovery disputes that cost buckets of money with little to show for it.
[FN1] Judge Debevooise made an interesting footnote regarding the way “hits” are reported. It’s worth noting: “[I]t is troubling that the parties refer to the number of raw hits as though each represented a separate document. Given the volume of hits and search terms used . . . it stands to reason that at least some files mentioning product lines would make reference to more than one at the same time. Consequently, the Court is left to wonder whether the total hit and estimated page numbers are genuinely correct.”
Discovery Order Relieves Party of Review of 65 Million E-Documents [Law Technology News]