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Doug Austin

Return of the eDiscovery Daily Thought Leader Interviews!: eDiscovery Trends

Let’s face it, we need something to take our mind off the COVID-19 pandemic more than ever.  So, with that in mind, the appearance of the dancing light bulb can only mean one thing – it’s time for another thought leader series!

Given that there’s not a lot of eDiscovery-specific news to cover right now with Federal and State courts closed and other eDiscovery activities limited, I thought now might be a good time to bring back the Thought Leader interviews that I conducted at Legaltech for eight years straight from 2011 to 2018.  Over the first 7+ years of our existence, eDiscovery Daily published several thought leader interviews from various thought leaders throughout the eDiscovery community, including an annual series of interviews at Legaltech New York (LTNY) from 2011 to 2018.

We would have continued doing them, but I went from managing one product at the beginning of 2018 to 5+ products now – with regard to the “+”, more on that later – and CloudNine hosted the NineForum presentations the past couple of years at LTNY, which left little time for me to conduct thought leader interviews.  Hence, the pause.

But, now we need something to talk about.  Something, anything other than COVID-19.  So, I thought it would be a great time to bring back the thought leader interviews and I reached out to several well known eDiscovery thought leaders to gauge their interest in participating (with the intent to reach out to several others as well).  At least half a dozen expressed an interest and willingness to do an interview, so it’s on!

Unlike past years when we have conducted them, I won’t be publishing a schedule in advance.  My goal will be to publish one a week for as long as I have eDiscovery thought leaders willing to be interviewed.  Hopefully, that will be at least as long as we are all “on pause” during this pandemic.  If not a lot longer.

So, what do you think?  Are you looking for other topics to read about during the COVID-19 pandemic?  Me too  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.

Despite Estimate of 37 Years to Crack iPhone, Government Doesn’t Have to Return it – Yet: eDiscovery Case Law

Tired of stories about COVID-19?  So are we.  So, here’s an interesting case to take a look at instead.  :o)

In U.S. v. Morgan, No. 1:18-CR-00108 EAW (W.D.N.Y. March 6, 2020), New York District Judge Elizabeth A. Wolford denied the defendant’s Motion for Return of Property Under Federal Rule of Criminal Procedure 41(g), ruling that “[t]he government’s evidentiary interest in the [defendant’s] iPhone outweighs Defendant’s interest in its return, at least at this stage of the proceedings”.

Case Background

In this case involving a Superseding Indictment alleging conspiracy to commit wire fraud and bank fraud served on this defendant on May 21. 2019, a search warrant over a year earlier was issued for Morgan Management, LLC, which included search and seizure of “multiple servers, computers or storage media … including but not limited to … devices … associated with … Robert Morgan.”  Later the same month that the search warrant was issued, a 62-count indictment was returned against other defendants, but Robert Morgan was not initially named in the indictment.

Nonetheless, sometime in May of 2018, the government started to try to crack the defendant’s iPhone’s passcode, using a device called “GrayKey”, which uses “brute force” to try and access the iPhone, a process by which a computer program enters potential passcodes seriatim until the correct passcode is revealed.  A six-digit passcode yields 1,000,000 potential passcode combinations, but the iPhone’s hardware only allows two or three passcode attempts each hour.  Even though this defendant wasn’t charged until a year later, GrayKey’s “painstaking” efforts to unlock the iPhone continued, with “a mere 960,526 possible passcodes” remaining as of January 9, 2020.  As a result, on January 2, 2020, the defendant filed a Motion for Return of Property Under Federal Rule of Criminal Procedure 41(g).

While the government argued that it was the defendant’s burden to show that either the seizure was illegal or the government’s need for the device as evidence has ended, the defendant argued that regardless of the government’s stated need for the property, it was unreasonable for the government to continue its retention of the iPhone.

Judge’s Ruling

Judge Wolford noted that “Rule 41(g) allows ‘[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property [to] move for the property’s return…. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.’”  But she also noted that “Defendant does not argue that the government’s continued possession of the iPhone and its efforts to access it constitute an untimely seizure. Instead, Defendant argues that his interest in his iPhone and the information contained therein exceeds the government’s interest in the device, and thus, the Court should order its return.”

With that in mind, after a review of the history of Rule 41(g), Judge Wolford stated: “Defendant argues that at its current pace, it may take the government 37 years to successfully unlock the iPhone. The Court agrees that anywhere close to 37 years is an unreasonable time to retain the iPhone. This does not mean, though, that the government should be compelled to return it now. The government suggests that if it is successful, the contents of the iPhone could still be used at trial, regardless of when the contents are eventually accessed. At this stage of the proceedings—with a trial not scheduled to commence until next year…the Court agrees that there is still plenty of time for the government to access the iPhone’s contents. In the context of the current motion, the Court will not resolve whether that may cease to be the case as the trial date approaches. Indeed, the question of specifically how long the government can retain the device is not before this Court. There may very well come a point where the government’s retention of the iPhone is unreasonable—and that may be a time when the government continues to maintain that it needs the iPhone as evidence—but that date has not yet occurred.”  As a result, Judge Wolford denied the defendant’s motion.

So, what do you think?  How long can the government be allowed to retain a device to attempt to crack the password in a criminal litigation case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Here’s another interesting article about this case from David Horrigan of Relativity on Legaltech® News!

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.

Here’s an ACEDS Houston CLE Event You Can Attend No Matter Where You Are: eDiscovery Education

In a normal non-COVID-19 (coronavirus) world, our chapter events for the Association of Certified E-Discovery Specialists (ACEDS) Houston chapter would in-person local events and probably limited to legal professionals in Houston and surrounding areas.  But, we must adapt in the current (hopefully temporary) world of “social distancing”.  As a result, here’s a CLE event that you can “attend”, even if you’re nowhere near Houston.

One week from today, on Thursday, April 2 at noon CST (1:00pm EST, 10:00am PST), ACEDS will host the webinar Mining for Valuable Data – Collection Fundamentals.  In this one-hour webcast that’s CLE-approved for 0.75 hours in Texas, Paul Price, Vice President of Forensic Services at Xact Data Discovery will discuss collection fundamentals including: the scope of collection; how data is stored and recovered; the importance of metadata, forensic soundness and chain of custody; the risks of self-collection and other available collection approaches; and major source categories to be considered.

Let’s face it: While the left side of the EDRM (Identify, Preserve, and Collect) may be the least expensive part of the eDiscovery process, it can hold the biggest value because improper collections can result in having to repeat the entire process increasing the client’s total cost; sanctions can occur if the data is no longer available; and unnecessary legal battles may ensue to defend the decisions that were made at the beginning of the case.  If you don’t have the time to do it right, when are you going to have the time to do it over?

You’re probably asking: If the webinar is CLE approved for 0.75 hours in Texas, how does that apply to me if I’m NOT in Texas?  Well, based on CloudNine’s experience in hosting our own webcasts, we know that several states (and even one territory) offer reciprocal credit for approved CLE webinars in other states.  Reciprocal credit may also be available in these states (and territory): Alaska, Arizona, Arkansas, California, Colorado, Florida, Hawaii, Maine, Montana, New Jersey, New York, North Dakota, Oregon, Puerto Rico, Rhode Island, Virginia, Washington, West Virginia and Wisconsin.  And, these are the states we have confirmed will provide CLE credit – other states may as well (check with your local state bar on requirements in your state).

To get CLE credit in Texas after the webinar, email your name and bar number to me at my email address – daustin@cloudnine.com – and (once I confirm your attendance for the full 0.75 hours) I can record your credit for you.  To get credit in another state, email me and (after confirming credit) I can send you a certificate so that you can pursue credit in your state.  What could be easier than that?!?

BTW, don’t forget CloudNine’s next webcast – Winning the Battle on Discovery Form of Production – with Tom O’Connor and me on Thursday, April 2 at noon CST (1:00pm EST, 10:00am PST).  That’s nearly 2 hours of new CLE courses in less than a week!

So, what do you think?  Are you looking for opportunities to obtain CLE credit during the pandemic?  Well, here’s one chance to do so!  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.

Even the Coronavirus Can’t Stop Legal Tech Companies From Pushing Forward: eDiscovery Trends

Sure, the COVID-19 (coronavirus) is disrupting many things from eDiscovery industry events to web teleconferencing solutions to even Federal and State court dockets.  But, at least according to one article, legal tech “vendors” are still chugging along.

According to Bloomberg Law (Legal Tech Companies Push Forward Despite Virus Disruption, written by Sam Skolnik), legal tech vendors say they are unbowed in the wake of the coronavirus outbreak, and are so far keeping new product releases on schedule despite volatile markets and disruptions in how their law firm and corporate clients operate.

Even though some vendor executives recognize that a prolonged national emergency spurred by the virus could cause legal industry clients to reassess their need for new products and services, many in legal tech—especially larger, well-established companies—say disruptions to the pipeline to develop and implement legal technology caused by COVID-19 seem far away.  Examples:

  • Technology and legal services company UnitedLex isn’t delaying any product or service rollout as a result of the virus, CEO Dan Reed told Bloomberg Law in a statement. Digital is in our DNA and we are designed as an organization to deliver even with a primarily remote-first work model,” said Reed. “We continue to monitor and assess the situation and can wholeheartedly speak to our clients’ ongoing reliable access to business applications and information.”
  • Veritone, which offers artificial intelligence-enabled eDiscovery and transcription and translation services, said they haven’t seen a drop-off in work since the coronavirus hit. They say this is reflected by the new contracts they’ve signed with police department and advertising agency clients, as well as one legal client in a transcription matter.
  • For Ben Levi, co-founder and chief operating officer of InCloudCounsel, a legal tech provider, the outbreak has been “unprecedented” in some ways. Yet the pandemic hasn’t been as disruptive to his business as it could have been, he said, citing a strong company balance sheet and the fact that his team was already set up to work from home.  “We’re well-positioned to ride this out,” he said.
  • Orrick Herrington & Sutcliffe is still poised to roll out the next version of the Orrick Dashboard on May 1, according to partner Don Keller. The tool would enable the firm and its tech company clients to access clients’ corporate legal information and to collaborate.

CloudNine is also continuing to push forward with new software releases as well.  On Monday, we rolled out the latest release (version 1.08.05) of our Concordance Desktop product, which focuses on a brand-new document viewer (the first new image viewer in many years!) and related production and printing functions.  If you’re a Concordance Desktop client, you can download the new release here.

So, at least one thing – legal tech “vendors” churning out product releases – hasn’t changed in this very unusual time.

So, what do you think?  Has the COVID-19 pandemic changed how you use and purchase legal tech software?  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.

Court Observes “Timing is Everything” in Determining When Litigation is Anticipated: eDiscovery Case Law

Yesterday, I noted that COVID-19 is impacting several courts and closing many – at least for now.  But, I also noted that we still have several cases we can cover from earlier this year regarding eDiscovery.  Here’s one.

In Noah’s Wholesale, LLC v. Covington Specialty Ins., No. 19-24845-CIV-COOKE/GOODMAN (S.D. Fla. March 13, 2020), Florida Magistrate Judge Jonathan Goodman ruled that the defendant “anticipated litigation approximately midway between the two extreme positions urged by the clients” after reviewing in camera the filed-under-seal documents for which the defendant asserted work product protection.

Case Background

In this theft-of-business-property insurance claim case, each party had a significantly different view about the time of when the defendant first anticipated litigation. The defendant contended it anticipated litigation immediately upon receipt of the plaintiff’s notice of its loss, while the plaintiff contended that the defendant did not anticipate litigation until the lawsuit was filed, more than a year after the first loss notice was provided.

At the discovery hearing on the defendant’s claim of work product protection over the insurance claim file at issue, defense counsel presented several potential dates (starting with the earliest in time) that could conceivably be the date when the work product doctrine was to be established for the plaintiff’s claim file and filed an affidavit of the litigation specialist assigned to the subject claim, in support of its various potential dates for beginning the work product protection over the claim file.  Judge Goodman, while noting that her affidavit does not explain what legal training, if any, she has received to be a “litigation specialist”, then proceeded to review filed-under-seal documents in camera to evaluate against those dates.

Judge’s Ruling

Judge Goodman began his order by stating: “’Timing,’ they say, ‘is everything’”, noting that “The ubiquitous ‘they’ may well be correct about that timing thing when it concerns the issue of when a party anticipated litigation under the work product doctrine.”

With regard to the dates proposed by the defendant, Judge Goodman ruled as follows:

  • June 27, 2017, because it was the date that the sole owner of Noah’s Wholesale recorded his statement about the loss and provided a document indicating that the alarm system was not activated on the date of the loss: Judge Goodman stated: “The Undersigned disagrees with Covington’s argument that work product protection over the claim file starts on June 27, 2017, because there was still uncertainty about whether litigation would ensue at this point. By Covington’s own actions, such as sending a reservation of rights letter in August 2017 (asking Noah’s Wholesale for more information/documentation of the loss), it is evident that Covington was still in ‘information gathering mode’ and not certain about litigation.”
  • August 3, 2017, because it was the date when “Covington’s assigned claims administrator sent the insured correspondence . . . indicating it was investigating the claim under a reservation of rights, and specifically requested certain information from the insured”: Judge Goodman stated: “the Undersigned similarly disagrees with beginning the work product protection on the date of the ROR letter because Covington was still investigating Noah’s Wholesale’s claim and had not declined or otherwise reached a final decision on coverage of the claim.”
  • June 6, 2018, because it was the date when “Covington re-opened the subject claim after it received correspondence from Joshua Widlansky, Esq., advising Covington that the insured had retained the law firm of Padula Bennardo Levine in relation to the subject claim.”: Judge Goodman stated: “After reviewing the claim file in camera, the Undersigned agrees with Covington that June 6, 2018, when Noah’s Wholesale informed Covington that it retained counsel in relation to the subject claim, is the date when the work product protection should begin over the claim file. The in camera inspection shows that Covington responded to the letter as if litigation were imminent, and created claim file documents from that point forward with the ‘prospect of litigation [as] the primary motiving purpose.’…Discussing the need for outside coverage counsel (after learning that the insured retained counsel) is a tangible illustration of a view that litigation was anticipated.”

So, what do you think?  Is the notification that the party has retained an attorney a good milestone to use for reasonable anticipation of litigation?  Or is there a better one prior to the case actually being filed?  Please let us know if 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.

Here is How Covid-19 is Impacting the Courts: eDiscovery Trends

I promise that every post for the next several weeks won’t be about the Covid-19 (Coronavirus) pandemic.  But, this is one more trend worth noting.  To no one’s surprise, many Federal and State courts are also closing and delaying trials because of COVID-19.

According to ABA Journal (A slew of federal and state courts suspend trials or close for coronavirus threat, written by Debra Cassens Weiss), more than 25 federal district courts are pausing jury trials, following a trend that is still gaining ground in state courts.

Several federal appellate and trial-level courts are also barring people who don’t have official court business from entering courthouses. Some are asking pro se litigants with documents to leave them in drop boxes rather than enter the clerk’s office.

One federal courthouse in Rome, Georgia, was closed by court order last Tuesday after a court security officer was hospitalized with flu-like symptoms, according to Courthouse News Service. The guard had worked the week before he was hospitalized even though he was feeling ill. Results of a COVID-19 test were pending as of Wednesday, still no news reported as of yesterday.

In California’s Northern District, all four federal courthouses were closed to the public, the first mass closing of federal courthouses since the judiciary began its response to the coronavirus threat.

Dozens of states are also pausing trials statewide or restricting court visitors, according to the National Center for State Courts, which is keeping a tally. The organization reported last Tuesday that seven additional states (Arizona, Colorado, Hawaii, Louisiana, Maryland, Missouri and Virginia) had issued or expanded orders pausing jury trials or restricting court functions in just the last 18 hours. Other states pausing many jury trials include New York, New Jersey, Florida and Massachusetts.

Federal courts that have suspended jury trials include the U.S. District Courts for the Northern District of California, the Southern District of California, the Central District of California, the Eastern District of California, the District of Colorado, the District of Connecticut, the Northern District of Illinois (civil trials suspended), the Southern District of Indiana, the Northern District of Iowa, the Eastern District of Louisiana, the Middle District of Louisiana, the Western District of Louisiana, the District of Maryland, the District of Massachusetts, the District of Minnesota, the Southern District of Mississippi, the District of Nebraska, the District of New Hampshire, the Eastern District of Pennsylvania, the Western District of Pennsylvania, the District of Puerto Rico, the Eastern District of Tennessee, the Northern District of Texas, the Southern District of Texas, the Eastern District of Virginia, the Western District of Washington, the Southern District of West Virginia, the Eastern District of Wisconsin and the District of Columbia.

COVID-19 has even delayed the Robert Durst murder trial.

The Administrative Office of U.S. Courts is keeping track of the orders in this chart.

Even though we may be seeing less case law for a while, there are still several eDiscovery related case law opinions and orders available for coverage since the start of 2020 – 469 in eDiscovery Assistant so far this year.  So, we still have plenty of case law to cover during the interim period.

Stay healthy out there!

So, what do you think?  How have court closures and trial delays affected your practice?  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.

Web Teleconferencing Solutions Experiencing Challenges During COVID-19 Crisis: eDiscovery Logistics

We’re all adjusting to our “new normal” of Work From Home (WFH) during the COVID-19 (Coronavirus) crisis.  But, working with increased demands on teleconferencing solutions may make us want to say “WTF” during our WFH experience these days.  Is there anybody out there?

As reported by The Register (Zoom goes boom, Teams tears at seams: Technology stumbles at the first hurdle for this homeworking malarkey, written by Kieren McCarthy – hat tip to Sharon Nelson of the excellent Ride the Lightning blog), demand for services like Zoom’s conferencing software and Microsoft’s Teams outstripped capacity and outages started occurring at 9am ET on Monday, per the article.

Zoom candidly reported that its software has “degraded performance” and its phone service had a “partial outage.”  For obvious reasons, all remote working companies are scrambling to deal with the sudden flood of users. Zoom has updated its audio-conferencing system in the background in order to allow people running the meeting the ability to change dial-in options – a sign that people who usually do not use its software are having to be guided through it by manager and meeting organizers.

Of course, Zoom has been on a media blitz recently touting their low latency, network optimization, decision to remove a 40-minute limit on free accounts and even offering free video conferencing for schools.  Whoops.  Though the free videoconferencing was a nice offering, so kudos to them for that.  CloudNine uses RingCentral (which is built on Zoom) and I have noticed a couple of issues dialing into meetings this week, but was able to circumvent them by using computer audio instead.  So, there are workarounds; however, I have heard some people have had issues with the computer audio option as well.

Microsoft, which has been heavily promoting its Teams conferencing service recently, has also had issues, which a string of outages. The service was listed by Microsoft as suffering “degradation.”

Needless to say, the COVID-19 virus crisis of 2020 is giving these teleconference platform providers a chance to stress test their systems like never before.

As you may recall, I covered a few eDiscovery related cancellations, postponements and conversions (to virtual events) in Tuesday’s post. Of course, Rob Robinson’s excellent Complex Discovery blog has a much more comprehensive listing of cancellations, postponements and conversions here, which (sadly) includes the Corporate Legal Operations Consortium (CLOC) show in May as well as events for The Sedona Conference and the Masters Conference.

Stay healthy out there!

So, what do you think?  Are you experiencing any challenges during this WFH time for so many?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Metro-Goldwyn-Mayer (MGM)

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 Denies Plaintiff’s Sanctions Request, Points Out Her Own “Misconduct”: eDiscovery Case Law

In Vaks v. Quinlan, et al., No. 18-12571-LTS (D. Mass. Feb. 24, 2020), Massachusetts District Judge Leo T. Sorokin denied the plaintiff’s Motion to Compel and for Sanctions, calling her accusations “without basis” and pointing out her own “pattern of misconduct and disregard of the governing rules”.

Case Background

In this case involving claims of age discrimination by the plaintiff against the defendants, the plaintiff, in filing the motion, accused the defendants and their attorneys of: (1) “obstructing” a deposition; (2) “relentless refusal to produce documents”; and (3) “defiantly [and] in bad faith violat[ing] every Federal Rule of Civil Procedure related to discovery[.]”

Judge’s Ruling

Judge Sorokin, in responding to the plaintiff’s accusations, stated: “These are serious accusations made in writing. They are without basis.”  Judge Sorokin also referenced a previous observation from his court where he “note[d] that there is no basis to infer improper discovery practices by defendant or anything other than reasonable forthright practices by [defense] counsel.”  Continuing, he noted:

“Indeed, to date, Plaintiff—rather than Defendants—has not conformed to the governing rules. She filed late discovery requests…which the Court ultimately found were almost entirely overbroad, unreasonable, and not proportional to the case…She induced the Court to issue an order by making a material misrepresentation: in writing, she represented that defense counsel had assented to an extension of the governing schedule which, the Court later learned, defense counsel had not.”

Judge Sorokin also outlined the plaintiff’s submission of documents produced by the defendants in a pending motion as “plainly designated as confidential” and “in direct violation of the protective order” that defendants had requested which was approved by the court, even though the plaintiff had “never challenged any confidentiality designations”.  Judge Sorokin indicated that filing “establishes a pattern of misconduct and disregard of the governing rules.”

As for the merits of the plaintiff’s motion to compel, Judge Sorokin addressed her five claims, as follows:

  • Format of the documents produced electronically by defendants: Judge Sorokin stated: “This challenge is without merit. Defendants produced the metadata both for documents and emails. As to emails, they searched their servers, and produced the relevant emails with attachments and metadata…This is a permissible practice.”
  • Defendants advanced improper general objections: Judge Sorokin stated: “Not so. Defendants augmented their ‘general’ objections with specific objections.”
  • Defendants withheld responsive non-privileged documents: Judge Sorokin stated that “nothing before the Court, contrary to Vaks’ arguments, suggests” that took place, noting that “Defendants produced multiple privilege logs” and indicated that the plaintiff “simply misunderstands” a reference from the defendants to imply there were suppressed documents.
  • Certain documents withheld by Defendants pursuant to the work product privilege doctrine were not privileged: Judge Sorokin stated: “This argument similarly fails”, noting that documents in contention were prepared at the direction of the defendant’s general counsel, “so that she could provide legal advice. In these circumstances, such documents are properly withheld.”
  • Reopen the now-completed Rule 30(b)(6) deposition: Judge Sorokin noted that there was “no basis” to do so, stating: “Indeed, Vaks has not demonstrated in any way that Mr. LeBlanc did not adequately answer questions during his deposition. Moreover, she did not, in any of the parties’ communications after Mr. LeBlanc’s deposition, claim that the deposition was deficient.”

In denying the motion, Judge Sorokin also stated: “One more issue bears comment. Vaks requests sanctions. None are merited here. Whatever the merits of Vaks’ claims—a matter upon which the Court has no view—defense counsel has discharged her discovery obligations well. She has made reasonable accommodations for a pro se party, as she must, while pressing her client’s positions firmly—all while under repeated attack. There is no basis whatsoever for the imposition of sanctions, nor even an arguable basis to request sanctions.”

So, what do you think?  Does the ruling open the door for the defendants to file their own motion for sanctions?  Please let us know if 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.

Here’s a Webcast on How to Win the Battle on Discovery Form of Production: eDiscovery Webcasts

Yesterday, I said that (despite the current COVID-19 crisis) CloudNine is continuing to provide the full range of services and high-quality support you have come to expect, including this blog.  And, webcasts too!  We’re back and better than ever with our next webcast – in just three weeks!

Let’s face it, one of the most common disputes in discovery today has to do with the form or forms of production for the electronically stored information (ESI) in the case. There are quite a few misconceptions regarding the different production forms as well as the pros and cons of each. So, what do you need to know to request the most appropriate form of production to maximize the information available to you, at a cost you can afford and a format that supports presentation activities such as depositions and trial exhibits?

Wednesday, April 8th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Winning the Battle on Discovery Form of Production. In this one-hour webcast that’s CLE-approved in selected states, we will cover current rules regarding form of production, options available to you, the pros and cons of each and relevant case law regarding recent form of production disputes. Topics include:

  • History Lesson: How We Got Here
  • Federal Rules Addressing Forms of Production
  • Options for Forms of Production
  • Objections to Native File Production and Counter-Arguments
  • Considerations for ESI Protocols
  • Key Recent Case Law Opinions Regarding Form of Production
  • Recommendations and Resources for More Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how to win the battle on form of production disputes, this webcast is for you!

So, what do you think?  Do you feel like you understand how to select the form of production that is the most informative and most cost-effective for your cases?  If not, please join us!  And, as always, 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.

Yes, It’s Another Story About Coronavirus: eDiscovery and World Trends

If you’re not sick from COVID-19 (aka, the Coronavirus), you’re probably sick of hearing about COVID-19.  Hopefully, the latter group will indefinitely continue to be much larger than the former group.  Regardless, I won’t bore you with what you already know about COVID-19 and how it has disrupted (and will continue to disrupt) our way of life (well, I won’t bore you much anyway).  But, since this is an eDiscovery blog, let’s talk about how it is already starting to impact our industry.  And, we’ll also talk about what CloudNine is doing about it.

With social distancing taking hold, schools closing, theme parks closing, college and professional sports leagues closing, Broadway going dark and so much more as part of the CDC warning against events of more than 50 people, life is definitely different around the world in the wake of COVID-19, with circumstances evolving continually.  Even Forrest Gump has it.  Many companies in our space have moved much of their workers to work at home status (including CloudNine, more on that below).  Here are just a few impacts in the eDiscovery and legal technology world:

  • The University of Florida E-Discovery Conference that was scheduled for this Thursday, March 19 in Gainesville, FL (and via Livestream) has been postponed. Bill Hamilton, who is a University of Florida Levin College of Law Skills Professor and has organized the conference since its inception, made the announcement “with great disappointment” and U-Fla opted to postpone the conference instead of holding it entirely online.  Those of us who attend in person every year and enjoy the collaboration and interaction with other professionals in our industry can appreciate that decision and, hopefully, the conference can be re-scheduled later this year.
  • The EDRM Summit/Workshop for June has been converted to a “innovative, inter-active virtual conference this June 25-26 instead of the live-in person at the Duke University campus”. As announced by Mary Mack and Kaylee Walstad last week, doing so “will allow everyone, regardless of geography or health status, to participate, and will save participants travel time and money- it can truly be a global experience, for attendees, speakers and sponsors.”
  • And, yesterday, ILTA decided to postpone all in-person events through April 30. As they stated in an announcement yesterday, “ILTA will continue monitoring the global COVID-19 situation and evaluate our decision in the coming weeks.”  So, no change to the annual ILTACON conference in August – yet.

So, that leaves many of us to exercise our Business Continuity plans and perform our duties remotely.  And conduct our meetings via one of several teleconference services out there.  One of the more popular services out there is Zoom (which also happens to be the underlying service for RingCentral, which we use).  Leave it to Craig Ball, who has “taught classes with Zoom for years” to provide a Zoom “cheat sheet” for those who will be using it extensively over the next few weeks.  :o)

Speaking of Business Continuity plans, CloudNine has exercised ours and (as we announced to our customers and partners yesterday) most of our employees are working from home during this challenging time to do our part to minimize the spread of the virus (including me).  This isn’t the first time we’ve had to exercise our Business Continuity plan – we also did so when Hurricane Harvey hit the Houston area in 2017.  Back then, even though our Houston headquarters weren’t flooded, many roads leading to them were, so we instructed our employees to work from home for a week after Houston was hit by the storm.  Despite that, it was business as usual and we were able to continue to provide services and support to our customers and continue to host customer data without interruption in our data center.  So, we fully expect to be able to continue to provide the full range of services and high-quality support you have come to expect, just like we did back then (including this blog).  We’re here for you.

Stay healthy out there!

So, what do you think?  How has COVID-19 impacted you and your way of life?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — We haven’t forgotten that it’s St. Patrick’s Day today.  Hope you have as much fun as this guy (despite the circumstances)…

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.