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Training Snapshot: Law Prediscovery Electronic Discovery Loader
Terry Leang BioTerry Leang is a Senior Solutions Consultant with CloudNine with more than 8+ years of experience in electronic discovery. He has substantial experience with Early Data Analyzer, LAW PreDiscovery and Concordance. At CloudNine, Terry conducts presales demonstrations for new and existing clients, onsite and remote training courses as well as onsite consulting to develop custom workflows. Prior to his career at CloudNine, Terry worked as a litigation support analyst at a large law firm and was a trainer/consultant at LexisNexis.
An introduction to the LAW PreDiscovery Electronic Discovery Loader Utility, which provides many options for processing different types of sources and to tailor your import based on your project specifications. The Electronic Discovery Loader provides the ability to ingest data from multiple sources and apply settings specific to your case settings such as enabling Archive Extraction, Deduplication, Text Extraction and much more.
CloudNine Electronic Discovery Loader Settings Overview
Terry Leang is a Senior Solutions Consultant with CloudNine with more than 8+ years of experience in electronic discovery. He has substantial experience with Early Data Analyzer, LAW PreDiscovery, and Concordance. At CloudNine, Terry conducts presales demonstrations for new and existing clients, onsite and remote training courses as well as onsite consulting to develop custom workflows. Prior to his career at CloudNine, Terry worked as a litigation support analyst at a large law firm and was a trainer/consultant at LexisNexis.
An overview of the configurable settings in the LAW PreDiscovery Electronic Discovery Loader, that are specific to the type of source you’re importing. Based on policies and project specifications, the settings tab is used to determine how specific file types will be handled during the import process, such as extracting the contents of an archive or detecting duplicate files, as well as how the files will be organized in the folder view of LAW PreDiscovery.
CloudNine Training Snapshot: Concordance Desktop Updating Image Bases
Travis Ballenger is a Solution Consultant with 5 years of experience in eDiscovery. He began as a member of the Concordance Support team at LexisNexis in 2013 and quickly became a Field Service Engineer providing dedicated technical support including onboarding of clients and acting as a conduit between his clients and internal teams in order to ensure client satisfaction and client renewals.
Travis is available to support the sales team both in pre- and post-sales efforts with demos, product conversations, training and road map calls for all on-premise products.
Even with Bad Communication and Unfulfilled Discovery Obligations, Sanctions Still Not Granted: eDiscovery Case Law
eDiscovery Case Week concludes today! We had a great webcast on Wednesday where Tom O’Connor and I discussed key eDiscovery case law for the first half of 2018 – 22 cases in all! Check it out! – Doug
In US v SuperValu, No. 11-3290 (C.D. Ill. July 12, 2018), Illinois District Judge Richard Mills ruled against sanctions requested by the defendants at this time, even though the relators didn’t “live up to their discovery obligations.”
Case Background
The relators filed this qui tam action alleging the defendants defrauded government healthcare programs by fraudulently reporting inflated Usual and Customary (U&C) pharmacy prices for prescriptions filled for government healthcare program beneficiaries.
In their first amended complaint, the relators claimed they each spoke individually with employees of certain of the defendants’ pharmacies. The defendants alleged the relators relied heavily on these alleged conversations to support their fraud allegation, and that the relators shredded contemporaneous notes of “supposed conversations” with the defendants’ employees. It was also charged that the relators intentionally deleted computer files concerning these conversations and threw away the computer on which the files were stored, thereby precluding examination of the relevant metadata.
On December 20, 2016, the defendants served interrogatories seeking details of the alleged conversations, and the relators identified 19 alleged conversations between employees of the parties. The defendants also requested production which sought, among other things, documents relating to certain phone calls. The relators produced no documents in response to the requests.
Subsequently, the relators’ counsel produced five documents which one of the relators’ employees confirmed were the notes that he made on his home computer concerning phone calls he allegedly made to various defendant pharmacies. He then testified he had no independent recollection of the substance of these calls. The computer on which he prepared the notes “quit working,” and he threw it away after the filing of this lawsuit, which “deleted everything [all documents he prepared on the computer related to this lawsuit] after [he] sent them to counsel.” A number of other notes were also prepared on the computer, and some of the handwritten notes or reports that were the basis for this information were shredded or destroyed.
The relators claimed the defendants made no effort to investigate the matters it addresses in its motion and did not speak to counsel for the relators before filing the motion. They also disputed the defendants’ allegations that “Notes not produced to date have been lost forever, and all metadata reflecting the timing of the creation and editing of even the summaries has likewise been lost and is non-recoverable.”
The relators claimed their counsel has electronic copies of all the notes discussed by defendants in its motion, with metadata, and some copies of Schutte’s handwritten notes. However, the defendants did not ask for these materials. The relators contended that even if certain handwritten notes were destroyed, all relevant information was preserved.
The relators also alleged that a number of these allegedly spoliated documents are protected by the work product doctrine and were not subject to discovery. The defendants filed a motion for limited sanctions for spoliation of evidence.
Judge’s Ruling
After taking into consideration FRCP 26 and 37, as well as previous case law, Judge Mills ruled:
“In some respects, it appears that the parties are having communication problems. If the documents are simply paper or electronic records of statements made by employees of the defendants, the Court fails to see how such documents could possibly constitute the relators’ work product. Accordingly, those documents should have been turned over to the Defendants upon request, pursuant to Rule 26(b)(3)(C)(ii).”
Judge Mills continued: “The defendants will have an opportunity to question the relators about the alleged conversations, the circumstances under which any notes were prepared, and any other relevant matters, including the destruction of the computer and any metadata that may have been lost. If it comes to light that a party acted inappropriately or in bad faith, the Court will consider imposing sanctions at that time…Although it appears that the Relators may not have lived up to their obligations under the discovery rules, the Court does not believe that the sanctions requested by the Defendants are appropriate at this time.”
So, what do you think? Is this ruling within the correct interpretation of spoliation sanctions under Rule 37? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Court Rules Search Terms Overly Broad Under Rule 26 in Convertible Top Patent Case: eDiscovery Case Law
In Webastro Thermo & Comfort v. BesTop, Inc., No.16-13456 (E.D. Mich. June 29, 2018), Michigan Magistrate Judge R. Steven Whalen ruled in favor of the plaintiff’s protective order, requesting the narrowing of search terms for ESI production in this patent dispute.
Case Background
The plaintiff manufactures an automobile roof and also a roof-opening mechanism for which it has a patent and claimed that the defendant manufactures a roof-opening mechanism under the name “Sunrider for Hartop” that infringes on their patent. The defendant contended that its Sunrider product is based on prior art, invalidating the plaintiff’s patent.
The defendant requested emails during discovery, but the plaintiff claimed the total emails generated and received by these companies was voluminous and many would encompass matters having nothing to do with this lawsuit. The ESI order from the court contemplated that search terms should be narrowed to exclude extraneous and irrelevant information and that production requests should be limited to eight key custodians and ten search times on each side.
However, the plaintiff contended that the defendant’s proposed search terms were “overbroad, indiscriminate, and contrary to BesTop’s obligations under the Court’s ESI Order,” and despite pre-motion communication between counsel, the parties were at an impasse, leading to the plaintiff seeking a protective order “sparing Webasto from unduly burdensome email discovery, until such time as BesTop propounds reasonable email search requests containing appropriate narrowing criteria.” The plaintiff also requested an order requiring the defendant to cover costs associated with the plaintiff’s production.
Judge’s Ruling
Judge Whalen stated in his discussion, “The majority of BesTop’s search terms are overly broad, and in some cases violate the ESI Order on its face. For example, the terms ‘throwback’ and ‘swap top’ refer to Webasto’s product names, which are specifically excluded under…the ESI Order. The overbreadth of other terms is obvious, especially in relation to a company that manufactures and sells convertible tops: ‘top,’ ‘convertible,’ ‘fabric,’ ‘fold,’ ‘sale or sales. Using ‘dwg’ as an alternate designation for ‘drawing’ (which is itself a rather broad term) would call into play files with common file extension .dwg.”
Judge Whalen continued: “Apart from the obviously impermissible breadth of BesTop’s search terms, their overbreadth is borne out by Mr. Carnevale’s [plaintiff’s attorney] declarations, which detail a return of multiple gigabytes of ESI potentially comprising tens of millions of pages of documents, based on only a partial production. In addition, the search of just the first 100 records produced using BesTop’s search terms revealed that none were related to the issues in this lawsuit. Contrary to BesTop’s contention that Webasto’s claim of prejudice is conclusory, I find that Webasto has sufficiently ‘articulate[d] specific facts showing clearly defined and serious injury resulting from the discovery sought….’”
Counsel for the parties was ordered to meet and confer in order to show a good-faith effort in focusing and narrowing the defendant’s search terms, so that the plaintiff’s production of ESI would remain relevant within the meaning of Rule 26 and exclude ESI that would have no relationship to this case. The defendant was also ordered to submit an amended discovery request with the narrowed search terms within 14 days, after which, a new deadline for production of the ESI would be determined.
Because the opportunity was granted to the defendant to reformulate its discovery request to conform to the ESI Order, the plaintiff’s request for cost-shifting was denied, but Judge Whalen indicated the court “may reconsider” if the defendant “does not reasonably narrow its requests”.
So, what do you think? Is this ruling within the correct interpretation of proportionality under FRCP 26? Please share any comments you might have or if you’d like to know more about a particular topic.
P.S. – The case style refers to the plaintiff as “Webastro”, while the body of the order correctly refers to the plaintiff as “Webasto”.
Case opinion link courtesy of eDiscovery Assistant.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Facial Recognition Software Coming to an Airport Near You: eDiscovery Trends
Air travelers have already become accustomed to standing in the brightly painted footprints at security checkpoints and raising their arms in order to be scanned, but this month in Orlando, a new type of scan is taking place. Last month, Geneva-based tech company SITA installed cameras with facial recognition software at the Orlando International Airport in conjunction with British Airways and U.S. Customs and Border Protection (CBP).
When people step up to be scanned, a photo is taken of their face, it’s sent to CBP, who then matches the photo to the person booked on the manifest, and if it matches, the gates open and the passenger can board, all in a matter of seconds. If there isn’t a match, the passport is scanned manually by the gate agent.
The hope is to bring efficiency to the process of making sure people are who they say they are. The TSA is also testing similar technology for security check-ins, with Steve Karoly, acting assistant administrator at TSA, says it’s a “game changer.”
But according to a report released by the Center on Privacy and Technology at Georgetown Law School, the system is full of technical and legal issues, with a rejection rate of 4 percent. One issue the report cites is bias, with higher rates of false rejections occurring because of race and gender. Another report, conducted by the CAPA-Centre for Aviation, said the face-recognition software isn’t good at “identifying ethnic minorities when most of the subjects used in training the technology are from the majority group.”
Privacy is another concern as the Department of Homeland Security doesn’t have any rules for protecting Americans’ privacy and use of this data, but CBP says it deletes the photos within 14 days. It’s still unclear how GDPR compliance comes into play, especially with travelers who are EU citizens. But so far, most people who have used the technology aren’t concerned with privacy as long as it speeds up the boarding process.
This is still very much in the testing phase, although President Trump signed an executive order last year to increase the use of biometric tracking for airport security. As this type of technology becomes more and more widespread with uses outside of airport security, it’s also inevitable that litigation surrounding this technology with also rise.
In China, police are using AI-powered CCTV cameras to enforce jaywalking laws. If the cameras catch you outside of the crosswalk, the facial recognition software links with cellphone systems, and a text message is sent to your phone letting you know you’ve been fined.
But even if the technology isn’t the primary reason for the lawsuit, the electronically stored information created by scanners could potentially become relevant to discovery. This has certainly happened with other relatively new data sources with a rise of text messages, social media, and data from the Internet of Things being preserved as evidence more and more in both the civil and criminal courts.
It will be interesting to see how the use of this technology grows, but it’s also a reminder to organizations, who may be contemplating facial recognition software for various applications, of the need to consider the potential implications of how biometric data could be preserved and collected should litigation arise.
So, what do you think? How do you see the rise of facial recognition technology affecting your eDiscovery practices and policies in the future? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Tinder Date Murder Case Highlights the Increasing Complexity of eDiscovery in Criminal Investigations: eDiscovery Trends
With things like social media, electronic purchases, GPS tracking, and the Internet of Things, a normal day in anyone’s life creates an in-depth data trail. So, it’s no surprise that more and more, electronic evidence plays a key component in criminal investigations. While eDiscovery technology is mostly used in the civil courts, namely because corporate and government organizations have more resources than municipal, county, and even state law enforcement agencies to conduct reviews of large data-sets, it’s still worthwhile to look at the varied ways electronically stored information (ESI) is used to help detectives piece together a chain of events in order to solve a crime.
In an article published in The Daily Beast this week, we find the seemingly mismatched couple, 51-year-old Aubrey Trail and 24-year-old Bailey Boswell, charged with the murder of a 24-year-old Nebraska woman, Sydney Loofe. The story echoes the Starkweather / Fugate crime spree throughout the same region 60 years ago, only this time digital evidence led investigators to the perpetrators.
Trail and Boswell were arrested as part of a gold coin theft racket in November, but after further investigation, are now charged with Loofe’s murder, who was last seen November 15th before going on a Tinder date with Boswell. Police found the remains of Loofe’s body in a field a few weeks later, and in the months that followed, used a wide variety of ESI, along with traditional forensics, to link Trail and Boswell to the murder. The list of evidence pieced together is remarkable from an eDiscovery point of view:
- Tinder Profiles: 140 messages between Loofe and Boswell in the days before November 15th were pulled from their online dating profiles. The last was on Nov. 15 at 6:54 p.m., when Boswell said she’d arrived at Loofe’s apartment. Police also found that Boswell went by “Audrey” on her online-dating profile.
- Snapchat Photo: Loofe sent a selfie to a friend via Snapchat on November 15th with the caption, “Ready for my date.”
- Facebook Videos: Trail and Boswell both posted Facebook videos claiming innocence while police were looking for them. In one, Boswell said she was “Audrey on Tinder and a few other names because I have warrants.”
- iPhone Reset: After her arrest, Boswell gave investigators permission to search her iPhone 7, which they found had been reset to factory default settings on November 17.
- Cellphone Pings/GPS Locations: Loofe’s phone last pinged a cell tower near Wilber, where Boswell and Trail lived in a basement apartment. When detectives searched that residence, the landlord, who lived upstairs, “reported a strong odor of bleach coming from the basement.” Data from Boswell’s phone showed its location was “in close proximity to the area where the remains were discovered Dec. 16th.”
- Security Video Footage: Security footage from a local Home Depot showed Trail and Boswell on Nov. 15 around 10:35 a.m., shopping for tools and supplies that could be used to cover up the crime.
- Phone Calls from Jail: In two different phone calls, one to the Lincoln Journal Star and the other to the Omaha World-Herald, Trail gave different accounts, claiming he unintentionally killed Loofe in a sex game gone wrong.
All of this led to a confession from Trail, stating that he had killed Loofe, and then he and Boswell covered up the crime scene and disposed of the body.
Using electronic evidence to solve crimes is nothing new, but now more than ever, the digital footprint that individuals and organizations leave is staggering in its depth and variance. At the same time, it’s amazing how skilled investigators are using the raw data left behind in order to put together cases in both the criminal and civil courts. The common denominator with both then becomes the ability to preserve, collect, and review this data in a timely and affordable fashion, in order to get the facts as quickly and efficiently as possible.
So, what do you think? How do you see the influx of new data sources affecting your eDiscovery practices and policies in the future? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.