LITIGATION SUPPORT TIP OF THE NIGHT

Microsoft 365's Core eDiscovery tool allows litigation holds to be placed on Outlook mailboxes; SharePoint; OneDrive; and Teams accounts.   You can avoid adding the URL of each OneDrive site, and adding mailboxes one by one, by making use of a PowerShell script posted on the Core eDiscovery reference guide here.   For a selected domain, the script can use email addresses to locate mailboxes.   Up to 1000 different email addresses can be used. 

The script prompts the admin to enter a search query.   The hold can be limited to data that meets particular search criteria.   

It's necessary to create a text file with a list of email addresses the script will process.  

The script generates logs of the locations of mailboxes and OneDrive sites that are on hold and are not on hold.   

Today, the Second Circuit issued a decision, In Re: Application and Petition of Hanwei Guo for an Order to take Discovery for Use in a Foreign Proceeding Pursuant to 28 U.S.C. 1782, No. 19-781 (2d Cir. July 8, 2020) affirming a district court's denial of a petition under 28 U.S.C. § 1782 for an order compelling the production of documents for a private international commercial arbitration.  The arbitrator in this case was the China International Economic and Trade Arbitration Commission (CIETAC).   28 U.S.C. § 1782(a) allows federal courts to compel the production of materials “for use in a proceeding in a foreign or international tribunal”.

The Court noted that the legislative history of the statute indicates the phrase 'foreign or international tribunal' should not apply to private arbitration.   The relevant House and Senate reports do not make any reference to alternative dispute resolution.  The opinion notes that while the Fifth Circuit has issued a ruling also finding that § 1782 should not apply to private arbitrations, the Sixth Circuit has found that it does, and the Fourth Circuit has ruled that it should apply to private arbitrations in the United Kingdom because such arbitrations are authorized by the government pursuant to a statute.   The Court found that the ruling of the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) which found that Directorate General-Competition of the Commission of the European Communities (a public entity) was a tribunal under § 1782 to the extent it acted as a first instance decision maker, did not address the issue of whether a private arbitration tribunal should be covered by § 1782.  

In determining whether or not a CIETAC arbitration is a private international commercial arbitration, the Court considered multiple factors to evaluate if it functions as such an entity.  CIETAC operates independently of the Chinese government.  The arbitrators do not have to be affiliated with the Chinese government and there is only a limited basis on which government authorities can interfere with arbitrations beyond the enforcement of awards.  CIETAC only receives jurisdiction over a dispute from the parties.  Consequently, Judge Debra Ann Livingston's opinion concluded that CIETAC matters should be considered private arbitrations that are not covered by § 1782. 

You can use a PowerShell script to get a list of all of the files of particular type in a directory by using the -Include command.  In this example, we use the get-childitem command, followed by the path with the source files, followed by the command to include only certain types of files.

get-childitem C:\FooFolder\excels\ -Include *.xls -Recurse

The -Recurse setting causes the script to account for files in subfolders. 

If we run a script to set the result to equal a particular value:

$a = get-childitem C:\FooFolder\excels\ -Include *.xls -Recurse

We can use this to generate a count of the number of files that the script finds:

$a.Count

In their October 2016 ABA Journal article, Tech comes naturally to ‘digital native’ millennials? That’s a myth, Darth Vaughn a partner and legal process services director, and Casey Flaherty, a counsel, both with Haight Brown & Bonesteel discuss the results of their surveys of law students' technology skills.   The authors tested several law school classes on the following common MS Word tasks:

• Accept/Turn-off track changes.
• Cut & Paste.
• Replace text.
• Format font and paragraph.
• Fix footers.
• Insert hyperlink.
• Apply/Modify style.
• Insert/Update cross-references.
• Insert page break.
• Insert non-breaking space.
• Clean document properties.
• Create comparison document (i.e., a redline).

They report that most law students were only able to perform about a third of these tasks.    So, don't fall for the myth that the younger generation acquires basic software skills early on.  They are apparently learning these techniques on the job.  

You can expect someone with an MBA to have taken courses in Excel.  

The Tip of the Night for June 28, 2020 noted while comment 8 the ABA's Model Rule 1.1 has been adopted by most states, some have changed this provision to the rule, which addresses the need to be knowledgeable about technology relevant to the practice of law. 

Colorado altered comment 8 to place a special emphasis on an understanding of electronic communications.  

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, and changes in communications and other relevant technologies, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

See this document showing changes to the Colorado Rules of Professional Conduct posted on the web site of the Colorado Judicial Branch.  The added language is underlined and boldfaced.  This modification should be considered in light of the duty to keep client information confidential under Rule 1.6.  

Don't miss that if you wan to copy the full file path for any file that you have selected in Windows Explorer, you can do so by selecting the file and holding down SHIFT.   After you have clicked on 'Copy as path', the path to the file will be copied to the clipboard.

So you if hold down SHIFT and you select this file:

... you will have this on your cipboard:

"C:\Users\SeanKOShea\Documents\P100LEQ3.pdf"

Some document databases allow you to use EOS, EOP, EOG search operators.  These operators allow a document database user to run a search that will find where multiple strings appear within a set number of sentences, paragraphs, or pages of one another.   So, for example a search structured this way:

New York W/3/EOP mortgage

. . . will find documents where 'New York' appears within three paragraphs of 'mortgage'.   

The EPA's National Service Center for Environmental Publications Repository is one example of a database in which you can use these search operators.   Here we see an example of a search for two phrases within 8 sentences of one another:

 The ZyLAB eDiscovery platform, allows you to use these search operators. 

The Tip of the Night for May 26, 2015 discussed how to use a macro to add multiple hyperlinks to documents cited in a Word document.  At the end of the Tip I noted: 

Note if there are bates numbers containing hyphens, you may wish to find and replace these in Word before you begin.  If you don't, the generated hyperlinks will not cover the full length of the cited bates numbers.  After the macro is run, you can re-insert the hyphens, and the links will still work.

There is actually a better way of avoiding this problem.   You can edit the vba code on the line after the one on which you place the path to the folder containing the documents to be linked.   This line:

isHyper = 1

specifies the number of words the link is supposed to cover.  If it's set to one, only the word from the right of the tag cited in the concordance file will be covered by the hyperlink.  So if you're adding a link to a Bates number that has a space between the letter prefix and the multi-digit number, and the code only reads, 'isHyper = 1', you'll just end up with a link that looks like this:

You can cover each word and space in the link by increasing this number. 

The number should reflect the total number of words, spaces, and punctuation marks used in the Bates number or other tag.  So increase the number for each word, hyphen, underscore, blank space, period, colon or other symbol used in the tag.  When the isHyper number matches the parts of the tag, the full length of the tag will be linked to. 

Refer to Tip of the Night for May 26, 2015 for the complete instructions on how to link multiple documents in a Word document automatically. 

Relativity has an annoying habit of appending numbers to the beginning of PDFs that you download from a workspace.  So, files can be named with either a 1, 2, or 3 digit number followed by an underscore, and the document identifier or field selected to name the file.  E.g.:

7_ABC002276411

17_IBM080414121

134_GE0005425444

Using Bulk Rename Utility you can use this regular expression search to remove the numbering, so the files are only named with the Bates numbers:

([0-9]{1}_|[0-9]{2}_|[0-9]{3}_)(.*)

In the replace box simply enter:

\2

The search for the numbers with the underscore are separated in parentheses from the second part also in parentheses which searches for any number of characters. 

The month, the Sedona Conference released the third edition of The Sedona Conference Cooperation Proclamation: Resources for the Judiciary,Third Edition, available for download here.  This guide makes seven principal recommendations for judges on how to handle electronic discovery in civil actions.   An overall goal is to conduct discovery efficiently.  "The expenditure of a small measure of judicial resources at the beginning of litigation to set the tone and direction of eDiscovery—and a judge’s later availability at each stage of the action—will likely save the expenditure of significantly more judicial resources later."

1. Take a hands-on approach early.

2. Deadlines should be enforced by requiring periodic reports on the parties' discovery. 

3. Attorneys should be required to have knowledge of their client's information technology systems and forms of communication.

4. The parties should meet to develop a discovery plan. 

5. Discovery should be proportional, balancing the cost and burden of discovery with the importance of the case. 

6.  Disproportionate discovery should discouraged by phasing; protective orders; and cost shifting. 

7. Judges should sanction parties for unreasonable delay or costs.