• May 1, 2015

Update (May 1, 2015): Minnesota Litigator missed a March 2015 development in the e-discovery quagmire covered in earlier Minnesota Litigator posts (below).

E-discovery vendor/Plaintiff Kroll Ontrack failed to win its case on summary judgment, which is based on $700,000 worth of e-discovery work for which Kroll was not paid. (U.S. District Court Judge Donovan W. Frank’s opinion denying Kroll’s motion for summary judgment is here.) The case is apparently headed for trial but not starting on May 11, as the Court ordered.  A May 11 start for trial would have interfered with Defendant Devon IT’s lead counsel’s scheduled vacation. Apparently, trial is not stressful enough for Devon IT’s lead counsel; it looks like he might be going to Disney World for a week instead. He is far braver than I. (And I also think it is noteworthy that the court system, while it can be demanding on lawyers, can and does also cut them some slack from time to time.)

Photograph by Maura Teague

Photograph by Maura Teague

Update (June 18, 2014) (under headline: Lawyers: What is Worse Than Not Having Enough Work to Do?): Having a huge amount of work to do in a case in which your law firm’s costs are in the millions of dollars and your client refuses to pay you because you entered into a terrible fixed fee arrangement with them.

And here’s something else that’s worse: being assigned to fabricate problems with a vendor’s services because your law firm does not have the money to pay the vendor.

Update (August 22, 2013) (under the subject line: More on personal jurisdiction):  Below, Minnesota Litigator discusses a dispute in which e-discovery powerhouse, Kroll Ontrack, based in Eden Prairie, Minnesota seeks more than $700,000 from a Pennsylvania based e-discovery outfit, Devon IT, which, in turn, points the financial finger at its client, Mitts Law LLC, in Philadelphia.  How is there personal jurisdiction against Mitts and, even more tenuous, the individual lawyers? The answer is here.  Mitts Law lawyers do not like that answer, however, and are now seeking a stay and immediate interlocutory appeal (which both are normally quite hard to get).

Original Post (March 19, 2013): (Under the subject line: “TAAFOMFT, v. 2.0 (rev. 1):  E-Disgustery & Morton’s Fork”):   It is only a matter of time, in almost any litigation of a certain magnitude, when a signal gets crossed and there is an “information security breach.”  And this is where the fun begins in earnest!

Following up on yesterdays post on “some of my favorite things” (inadvertent disclosure fire-drills and motion practice), I noted a recently filed third-party complaint in a case pending before U.S. District Court Judge Donovan W. Frank (D. Minn.) (the original complaint is here), rich with a gooey layer of jam in the delicious concoction of civil litigation mille-feuille gateau de merde.

Everyone makes mistakes.  When the stakes are sufficiently high, though, there is a magical and almost inevitable human trait for all potentially responsible people and organizations to go to the greatest possible lengths to explain why a bad outcome is someone else’s fault (see, e.g., news coverage of J.P. Morgan London Whale Congressional hearings).

Another closely related widespread and widely recognized human quality — maybe unsavory but also very understandable —  is to not want to pay money to business partners when the disappointing joint feast is capped off with a $712,920.49 bill for a culinary clustercake.

A world-renowned e-discovery vendor with a facility in Eden Prairie, Minnesota, Kroll Ontrack, would like $712,920.49 for its contribution to the litigation effort of a Pennsylvania law firm on behalf of a Pennsylvania-based IT company.  Kroll Ontrack had apparently been recommended to the lawyers by the client, Devon IT.  According to Devon IT’s lawyers, however:

Kroll failed to electronically segregate “Confidential” and “Highly Confidential” documents, causing this to be done manually instead, which was very expensive and unnecessarily time consuming.


Kroll was unable to effectively filter out privileged search terms, causing unnecessary delays;


Kroll erroneously caused privileged documents to enter the “Inview “database, making it exceptionally difficult to keep privileged documents confidential and under seal pursuant to the court’s confidentiality Order in the Pennsylvania Litigation;


Kroll lacked the ability to safeguard inadvertent productions of privileged and non-responsive documents, again making it difficult to keep privileged documents confidential and under seal pursuant to the court’s confidentiality Order in the Pennsylvania Litigation;


Any searches of the Kroll database were unreliable and inaccurate, causing users to expend much more time than necessary during the review process;


Kroll lacked the ability to easily segregate or identify documents from third parties (opposing parties and non-parties), which significantly hampered the review process by causing delays;


Kroll failed to maintain a simplified version of its voluminous user manual, which was confusing to low-level document reviewers and caused them to expend more time than necessary learning Kroll’s system;


The manner in which Kroll processed native files (i.e. Microsoft Excel or PowerPoint files) was unduly costly, time consuming and cumbersome, because these files had to be manually renamed in order to view them;


Kroll was unable to maintain an accurate page count of the relevant production of native files;


Kroll did not perform any additional processing or quality review of documents that had been produced in OCR format, instead relying on an often-faulty computerized search process;


Kroll lacked an ability to augment or change certain automatic relationships within its Inview database. Kroll did not have, but should have had, a method by which this synching relationship could be stopped to ensure quality control;


The Kroll Case Manager lacked a comprehensive and thorough understanding and knowledge of Kroll’s system and capabilities;


Kroll could not efficiently prepare documents for production without counsel having substantial communication with Kroll to ensure the proper steps and checks-and-balances were performed, incurring unnecessary and substantial fees;


As to the process regarding processing of data from certain media sources, Kroll provided inconsistent answers regarding whether all documents must be processed through Advanceview prior to uploading onto Inview, undermining its claims of utilizing an advanced and superior technology;


Kroll did not have a methodology by which a user could create a search folder of documents that omit documents containing a specific search term(s). As a result, the user could not segregate “Confidential” and “Highly Confidential” documents, causing this to be done manually instead, which was an expensive and time consuming process.

These are all merely allegations, of course.  [Editor’s note: (And later discovery in the case appeared to suggest they were fabrications to dodge the big bill.)] And I note that in the nearly three years of related litigation, the docket does not reflect any fights over inadvertent production.  So maybe this is not so much a revision of the previous TAAFOMFT as a Morton’s Fork.  That is, civil litigators (and their clients) can either sup on the nauseating humble pie of inadvertent disclosure or, maybe alternately, they cough up $712,920.49 for the clustercake.  Either way, they all need to have Rolaids on hand.

Finally, the foul dessert choice is almost always related to how well the main course played out.  Devon IT’s long battle with formidable adversaries, simply by virtue of its cost and duration (and its fighting with its own lawyers), appears to be going very badly for the company.  Either the high cost of a pristine production, the challenge of huge e-discovery bills, or the set-back of inadvertent disclosure is undoubtedly palatable, maybe even delicious, with a digestif of Cuvee Leonie paid for by one’s adversaries.

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