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Is This the World’s Worst eDiscovery Letter or Just Standard Procedure?

November 21, 2019  |  7 min read

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Lawyers, being lawyers, have been fighting over eDiscovery since eDiscovery first became “a thing.”

And we know—we cover these fights regularly on this very blog, whether they’re battles over boilerplate eDiscovery objections, TAR vendor ‘he said, she said’ dueling, or Byzantine pricing policies that make the “just, speedy, and inexpensive” resolution of disputes more a pipe dream than a guiding principle.

So it’s no wonder that when Martin Nikel, an eDiscovery and investigations expert based out of Zurich, Switzerland, took to LinkedIn to share an eDiscovery letter from the law firm of Fighty, McFighty & Willams many of his readers thought it was real.

As Nikel explains:

The adversarial nature of law firm representation has generated an industry that's focused on lawyers looking at a lot of documents and then sending or withholding them from the other party—arguing about it all and then billing you for it.

And it’s not gullibility that causes legal professionals to mistake the world’s worst eDiscovery letter for, well, just another day in the life of your typical litigator. After all, while the following discussion of family relationships in eDiscovery might not be taken word-for-word from legitimate correspondence, many can spot the truth at its core:

While loading the documents into our platform, our eDiscovery vendor reported a number of challenges with maintaining the family relationships between each of the documents.

We are unable to explain the nature or the detail of this issue, but we expect you and your representatives to resolve it immediately. No further discussion will take place on this issue until you have resolved it.

Download the full letter here or read it in its entirety below. And our thanks to Martin Nikel for allowing us to share!


The World’s Worst eDiscovery Letter

21 February 2018

Your ref: 1234567Ten/CBD/FBDWileserver01.internal\confidential

Our ref: Z.1.2.35.6.7.8889C:/Temp/Normal.dot


Re: Massive Conglomerate (Cayman) Ltd v Another Massive Conglomerate (Panama) Ltd.

Dear Sirs,

We refer to out letters of 20 September, 21 September and every subsequent odd numbered day until and including 25 December and your letters of 23 September, 24th September and every subsequent even numbered day until and including 26 December. These refer collectively to the urgent and critical production schedule that we had agreed to complete by 1st January.

We thank you for hand delivery of the documents on 31st December, as we find transfer over the internet to be cumbersomely slow, given the huge 25 gigabytes (compressed size 14.9 gigabytes) that we sense would have taken at least three hours to transfer over the encrypted secure file Interface you had suggested.

Our client was pleased at the comfort, speed and security provided by the manual transfer and will be equally pleased that it took only two days for your trainee to fly the data from Australia to the East Coast. However, many other issues have marred our experience thus far in this discovery and disclosure exercise.

We find it incredulous that our client's fair access to evidence in relation to this matter is being prejudiced by the incompetence of the discovery management and quality issues we have been plagued by since the original case management Meet & Confer. It was at that meeting where we met for the first and only time (without our experts or eDiscovery vendor representatives present) to discuss the way to proceed with discovery and disclosure.

We list out those items that will undoubtedly influence the outcome of the entire matter.


Document Numbering Issues

Your disclosure references are not in-line with the agreed specification at the onset of the disclosure and production exercise. Please reproduce all documents from all productions with the prefix "Al" and not as you have done, " Al ". The leading space in " Al " is insult enough. To have included a trailing space borders on aggressive.

The addition of spaces has caused two of our document reviewer's substantial distress while reviewing documents, since they suffer from agoraphobia.


Family Relationships

While loading the documents into our platform, our eDiscovery vendor reported a number of challenges with maintaining the family relationships between each of the documents.

We are unable to explain the nature or the detail of this issue, but we expect you and your representatives to resolve it immediately. No further discussion will take place on this issue until you have resolved it.


Corrupt Documents

Upon connecting the hard drive provided, we found that our trainees could not open a number of the native files on their laptops, particularly those with document extension .DWG.

We cannot ascertain what the contents of such a file would be and we do not have the time or inclination to "google" what we need to do with these corrupt files.

We therefore request that you re-produce all of these corrupt documents in a readable format, preferably as thousands of unintelligible A4 colour tiff images.


Incorrect Disclosure

Having inspected the information provided in your update to Disclosure list 15b, we note that you supplied amended metadata and sort order for the documents. We subsequently found one of these dates (document number " Al 00001543") formatted incorrectly, which took a Senior Associate 15 minutes of billable time to correct.

Please explain in every minutia possible, why the document date for this PDF file contained a 12-hour time and not a 24-hour time. We believe the answer you provide will substantially influence the outcome for our client.


Field Order

We note that the fields in Disclosure list 15b are not in the order we specified in our letter dated 21 September. Our original complaint raised 17 months ago, specified the agreed field order.

You have added unnecessary complexity resulting in two occasions where our Litigation Support team and eDiscovery vendor representatives spent at least two minutes each for live individuals on wasteful 'doubletake' head movements.

After these casual 'double-take' head movements, one of our team pointed out that it would be simple to import the fields anyway. We await your comment on this challenging point.


Additional Document Provided

We identified in your letter 26th December you incorrectly stated that there were 15,000 documents included in Disclosure list 15b. There are in fact 15,001 documents if you include the load (.dat) file provided (we had required csv).

We would like your full and detailed explanation as to why that additional document did not count toward the total. This is misrepresentation of the highest order. Will be preparing an estimate of the costs incurred as a result and will raise this issue in the cost hearings, should we deem it necessary.


Erroneous Dates and Times

The additional time we invested in deciphering the provided dates and times in production la through 13a, 13a Supplemental a and b, 14, 15, 15a and 15b, delivered with your letters dated 22 September and every subsequent odd numbered day until and including 26 December and 1 January, was at great expense to our client.

Although considered entirely useful and reasonable, we had not agreed that there was to be the inclusion of a relative time zone offset field and all the dates and times would be in an ISO recognised format and based on UTC.

We require you to re-produce all documents with their date and time field reflecting the original time zone, but using the Julian date, with a base year of January 1, 4713 as that is our preferred standard. The date will be converted back to the ideal ISO date format.

Furthermore, 13,425 dates and times are contained within the data file which do not correlate to the dates we expected, however upon further inspection did match perfectly. We were only able to arrive at this conclusion once we had taken a first look at the documents (approximately one month after receipt). The need for us to consider the provided data in any level of detail is not something our client would expect to be necessary.


Communications

We also wish to raise our concern that the formulation, drafting, reviewing and signing of the constant stream of letters is at great cost to our respective clients. We feel a great deal of this communication and adversarial tone could be avoided by simply picking up the telephone and putting your experts in touch with ours.

We therefore look forward to your prompt and accurate reply by return letter, breaking down the reasons for your incompetence and a full and frank technical explanation for your serious negligence and technical incoherence.


Yours faithfully,

Tiff McFighty

Fighty, McFighty & Williams LLP

Fight, McFighty & Williams LLP is a Limited Liability Partnership. That is, we aim to make sure the liability is all on the opposing client and law firm, their vendors or ALSPs, or our own vendors and ALSPs. We typically let our least experienced associates and trainees manage the day to day, primarily so they can learn how to argue and point out procedural issues in order to make sure that our client is treated fairly (and to drive more billable hours).