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Doug Austin

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: eDiscovery Case Law

In Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019), Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Case Background

In this case involving alleged abuse of a child placed in a home by the defendants, the Court conducted an in-person hearing regarding the Kansas State Department of Children and Families’ (“DCF”) Amended Motion to Quash Subpoena and ultimately granted in part and denied in part the Motion to Quash on June 8, 2018, ordering DCF to produce certain records by July 31, 2018, with any responsive records subject to in-camera review to be produced directly to the Court for review.  DCF timely produced the records by July 31.  On October 24, 2018, after a review of the records submitted in-camera, the Court entered an order directing DCF to produce most of those documents to the plaintiff by November 30, 2018 and DCF timely produced those records as well.

On May 6, 2019, Plaintiff filed an instant Motion arguing DCF failed to comply with the Court’s June 28, 2018 Order because its November production did not contain six identified types of ESI in native format with associated metadata, instead producing the court-ordered documents (consisting of 5,767 pages) in PDF format on a USB flash drive.  The plaintiff asked the Court to issue an order: (1) requiring DCF to show good cause for why it should not be held in contempt of the Court’s June 28, 2018 Order; (2) requiring DCF to show good cause why it should not produce the requested ESI; and (3) imposing various sanctions on DCF pursuant to Fed. R. Civ. P. 37(b)(2)(A) for not obeying a discovery order.

Judge’s Ruling

Noting that “the subpoena asks for the records to be produced in ‘electronic format,’ but gives no specifics regarding whether the format should be PDF or native format with metadata intact”, Judge Birzer stated: “The Court is at a loss as to why Plaintiff would believe the June 8, 2018 Order required Defendant to produce the six above types of ESI when the subpoena did not specify it and the matter was not presented to the Court for consideration.”  As a result, Judge Birzer found that “the production of records in PDF format on an USB flash drive adequately satisfied DCF’s obligation under the June 8, 2018 Order, the subpoena and Rule 45” and that “there is no occasion for the undersigned Magistrate Judge to certify facts to the District Judge or to issue an order for DCF to show cause why it should not be held in contempt.”

Noting that “DCF is not a party to this action”, Judge Birzer also found that “requiring a non-party to spend time and money to re-produce 5,767 pages of PDF documents in native format with metadata would be burdensome and not proportional to the needs to the case considering Plaintiff has provided little reason as to why the native format and metadata would be relevant.”  As a result, Judge Birzer denied the plaintiff’s motion.

So, what do you think?  Could the plaintiff have done a better job of specifying its production format requirements up front?  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.

M&M Are Looking to Update Their eDiscovery Rules: eDiscovery Trends

And, by “M&M”, I mean Missouri and Michigan.  ;o) Here is some important information regarding the impending eDiscovery rules changes in these two states.

On Thompson Coburn’s site (What you need to know about Missouri’s updated discovery rules, written by Rachel Harris), the author notes that Missouri Governor Mike Parson signed into law Senate Bill 224, which limit the scope of discovery and address electronically stored information (ESI) for the first time.  Welcome to the party, Missouri!

The amended rules went into effect on August 28th. Under Missouri Supreme Court Rule 41.06, the changes likely apply not only to actions filed after August 28th but also to civil actions pending as of August 28th, unless a court finds that applying the revised rules to a pending action “would not be feasible or would work injustice.”

Senate Bill 224’s changes attempt to bring Missouri’s discovery rules closer to the Federal Rules of Civil Procedure (FRCP) in several ways, such as:

  • Scope of discovery and proportionality: Missouri’s amended Rule 56.01(b)(1) will now limit the scope of discovery to information that is not only relevant but “proportional to the needs of the case.” This language mirrors the language of FRCP 26.
  • Electronically stored information: Rules 56.01(b)(3) and 58.01 now expressly permit discovery of ESI and permit a party to request that ESI be produced in native format. However, a responding party is not required to produce ESI that is not reasonably accessible because of undue burden or cost. A court may nonetheless order the ESI produced if the requesting party shows good cause.
  • Protection of privileged or work product material: Rule 56.01(b)(9) provides a procedure for clawing back information produced in discovery that is subject to a claim of attorney-client privilege or work-product protection. If the producing party gives notice, the receiving party must promptly return, sequester, or destroy the specified information. An attorney receiving what he or she reasonably believes to be privileged or protected information must stop reading the document, promptly notify the involved attorney, return the document, and delete it. Production of privileged or work-product protected information, whether inadvertent or otherwise, will not be a waiver of the privilege.

Additional impacts are discussed within the article.

In Legaltech News® (Michigan Is Getting Prepared for Its Biggest Discovery Rules Changes in 30+ Years, written by Zach Warren), the author notes that the latest state to update their rules to reflect the 2015 Federal rules changes is Michigan, which recently made the largest change to its civil discovery rules in 35 years(!) in a bid to increase “everyone’s access to our courts to resolve their civil legal dispute in a cost-effective manner,” the state bar said. The new rules go into effect Jan. 1.

Within the new rules, there is an increased importance on planning.  For example, judges will be placing a greater emphasis on discovery earlier in the case with required initial disclosures within Rule 2.302(A)(1). This may sound like it’s ported from FRCP Rule 26, and to some extent it is—but it also borrows from the recently amended Rule 26.1(a) of the Arizona Rules of Civil Procedure.

So, where can you go to learn more about and understand the changes?  At michbar.org/civildiscovery, the Michigan bar has set up a website going through the changes, as well as a calendar of events to help explain the changes throughout the state. This website also includes a link to a guidebook that runs through not only the changes, but also the relevant laws federally and in other jurisdictions that they are drawn from.

Michigan’s judiciary will take a central role in this education; it’s instructive that the guidebook begins with a forward from Chief Justice Bridget M. McCormack. B. Jay Yelton III, a partner at Warner Norcross + Judd, explained that judges were supportive of the committee and its changes for a rather simple reason: They want trials.

“People aren’t filing lawsuits because they can’t afford this system, and I think it strikes all of us that that’s a shame, that the system’s not working as well as it should,” he explained. “People are avoiding the system because of the use of outdated discovery rules that end up burdening the whole process to the point that you never get to a trial, you never resolve the issues.”

It was this sort of buy-in that made the rules process not only successful, but easier to understand, Yelton added. The committee brought in lawyers, judges and other stakeholders in early in the process, and the result was a rules package that elicited very few comments against and very few objections at live hearing.

So, what do you think?  What do you think of the changes?  Will more states follow suit?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Mars, Incorporated and its Affiliates.

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.

Goodbye Columbus, Hello Relativity Fest!: eDiscovery Trends

Today may be Columbus Day, but it’s also six days until the 2019 Relativity Fest conference!  In case you didn’t already know, Relativity Fest is an annual conference designed to educate and connect the eDiscovery community and features panel discussions, hands-on labs, breakout sessions, and insights from Relativity staff, Relativity users, and industry leaders.  It’s a big show with over 2,000 attendees and a lot going on.

Once again, Relativity Fest is in Chicago at The Hilton Chicago (which was the largest hotel in the world when it opened in 1927 and cost ten times to build than the original Yankee Stadium) and it starts on Sunday, October 20 and runs through Wednesday, October 23.  As a development partner in the Relativity ecosystem, CloudNine will once again be the conference and will be there to provide demonstrations of our LAW Integration with Relativity via Compiled’s ReadySuite that enables customers to import and export data between these products with ReadySuite.  We will also be demonstrating a couple of other exciting upcoming capabilities as well, so come by and see us!

Also, I will be covering the show for eDiscovery Daily, and I’m delighted to say that I will also once again be speaking at a session at the conference.  My session is e-Discovery Disasters and How to Avoid Them: Don’t Let This Happen to You, on Tuesday, October 22 at 8:30am, with Kelly Twigger, Principal at ESI Attorneys, Salvatore Mancuso, Vice President of Client Solutions at BlueStar Case Solutions, Inc. and (my partner in crime on CloudNine webcasts) Tom O’Connor, Director at Gulf Coast Legal Technology Center.

In addition to that session, there are several other interesting looking sessions at the conference.  Some major discoveries here!  Here are a few of them:

  • Is It Time to Rethink the EDRM?, Tuesday (10/22) at 8:30am with Michael Quartararo – Managing Director, eDPM Advisory Services , Darcie Spruance – Senior Project Manager, Ms., George Socha – Managing Director, BDO, Constantine Pappas – Senior Manager, Relativity Solutions, Relativity, Philip Favro – Consultant, Driven, Inc. With one of the founders of EDRM, this should be interesting.  :o)
  • Talk Discovery to Me: How to Conduct Effective Interviews with IT and Custodians, Tuesday (10/22) at 2:45pm, a panel of three experts from McDermott Will & Emery (Erica Noel – Discovery Counsel, Alex Godofsky – Discovery Consultant and Tim Gleason – Discovery Counsel) will talk about conducting effective interviews with your client’s IT administrators and custodians.
  • The Judicial Panel, Monday (10/21) at 1:15pm, with the ubiquitous David Horrigan moderating discussions with Pennsylvania Judge Nora Barry Fischer, Texas Judge Xavier Rodriguez, New York Justice Tanya Kennedy and Florida Judge William R. Matthewman to discuss the latest legal developments in eDiscovery.
  • State of the e-Discovery Union: The Roundtable on the Industry and the Profession, Tuesday (10/22) at 2:45pm. David leads a discussion with Hon. Andrew J. Peck – Senior Counsel, DLA Piper, Zach Warren – Editor-in-Chief, Legaltech News, Mary Mack – CLO, MaryMack.com, Ryan O’Leary – Senior Research Analyst, IDC, Kelly Twigger – Principal, ESI Attorneys, Hon. James C. Francis IV – Distinguished Lecturer, City University of New York School of Law and Ari Kaplan – Principal, Ari Kaplan Advisors.
  • e-Discovery Cost Recovery: 5 Considerations for Law Firms, Monday (10/21) at 11:00am, with Daniel Pelc – Senior Manager, Industry Marketing, Relativity, John Koss – Special Counsel, Mintz Levin, Kimberly Fisher – Senior Practice Support Manager, Dickinson Wright PLLC and Kevin Clark – Litigation Support Manager, Thompson & Knight LLP.

To register to attend Relativity Fest, click here.  It’s not too late!  No Cubbies in the baseball playoffs this year, but the Astros are going to win it all this year (I hope!).  :o)

So, what do you think?  Are you attending Relativity Fest this year?  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.

Cell Phone Geolocation Evidence May Be Off the Mark (At Least in Denmark): eDiscovery Trends

If you watch Dateline, 20/20, 48 Hours or any other news program that covers notable crime stories, one trend has become more and more common – the use of cell phone/mobile device geolocation data to put alleged criminals at the scene of the crime (or at least very close to it).  We consider these devices – and the geolocation data obtained from them – to be highly accurate and important evidence in obtaining convictions for guilty parties or exonerating innocent ones.  Maybe we shouldn’t.

According the The Guardian (Denmark frees 32 inmates over flaws in phone geolocation evidence, written by Jon Henley), Denmark has released 32 prisoners as part of an ongoing review of 10,700 criminal cases after serious questions arose about the reliability of geolocation data obtained from mobile phone operators.

In addition, nearly 40 new cases have been postponed under a two-month moratorium on the use of mobile phone records in trials, which was imposed after police found multiple glitches in the software that converts raw data from phone masts into usable evidence.

Among the errors police have discovered is a tendency for the system to omit some data during the conversion process, meaning only selected calls are registered and the picture of the phone’s location is materially incomplete.

The system has also linked phones to the wrong masts, connected them to several towers at once, sometimes hundreds of kilometres apart, recorded the origins of text messages incorrectly and got the location of specific towers wrong.

Taken together, the problems meant not just that innocent people could potentially have been placed at crime scenes but that criminals could have been wrongly excluded from inquiries, said Jan Reckendorff, Denmark’s director of public prosecutions, who said “This is a very, very serious issue.  We simply cannot live with the idea that information that isn’t accurate could send people to prison.”  Announcing the case review and moratorium late last month, Reckendorff conceded it was a “drastic decision, but necessary in a state of law”.

There are no statistics on how many court cases in Denmark are decided on the basis of mobile phone data, but it is often used to corroborate other evidence and, although not considered as reliable as DNA, has previously been seen as highly accurate.

Isolated incidences of clearly inaccurate mobile data have occurred in the past in the US and South Africa, but this is the first time it has been questioned by a national justice system. Three years ago, a Kansas family sued a digital mapping company after being visited “countless times” by police and others.

I certainly experienced how inaccurate geolocation data tracking can be sometimes when I was in Italy the past couple of weeks.  Trying to use Google maps over there to help direct you to a location can be challenging as the application frequently reported inaccurate locations for where we were when trying to provide directions.

So, what do you think?  Are you concerned about the accuracy of geolocation data in the US?   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.

Does Anybody Really Know What Time It Is?: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on May 9, 2011, when eDiscovery Daily was less than nine months old.

One of the things that has been clear about many of the projects I’ve managed over the years is that establishing a time zone for the project is important to do at the outset to set the time and date of emails as Outlook stores emails in Coordinated Universal Time (UTC) and the time of the email is displayed based on the time zone of the system viewing the time.  So, a workstation displaying the time of an email in Central time would display it as UTC−05:00 (at least for Central Daylight Time) as a time offset of five hours earlier than the UTC time.  So, it’s 7:11 (oh, thank heaven!) PM here in Houston, but already after midnight tomorrow in UTC time (also historically referred to as Greenwich Mean Time (GMT)).  Change the time zone of the workstation and the time (and possibly the date) will change for the same email when displayed.  As you can see below, that can potentially have an important impact on the relevancy of certain emails.  Enjoy!

Does anybody really know what time it is?  Does anybody really care?

OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority).  But, the question of what time it really is has a significant effect on how eDiscovery is handled.

Time Zone: In many litigation cases, one of the issues that should be discussed and agreed upon is the time zone to apply to the produced files.  Why is it a big deal?  Let’s look at one example:

A multinational corporation has offices from coast to coast and potentially responsive emails are routinely sent between East Coast and West Coast offices.  If an email is sent from a party in the West Coast office at 10 PM on June 30, 2015 and is received by a party in the East Coast office at 1 AM on July 1, 2015, and the relevant date range is from July 1, 2015 thru December 31, 2016, then the choice of time zones will determine whether or not that email falls within the relevant date range.  The time zone is based on the workstation setting, so they could actually be in the same office when the email is sent (if someone is traveling).

Usually the choice is to either use a standard time zone for all files in the litigation – such as UTC or the time zone where the producing party is located.  It’s important to determine the handling of time zones up front in cases where multiple time zones are involved to avoid potential disputes down the line.

Which Date to Use?: Each email and efile has one or more date and time stamps associated with it.  Emails have date/time sent, as well as date/time received.  Efiles have creation date/time, last modified date/time and even last printed date/time.  Efile creation dates do not necessarily reflect when a file was actually created; they indicate when a file came to exist on a particular storage medium, such as a hard drive. So, creation dates can reflect when a user or computer process created a file. However, they can also reflect the date and time that a file was copied to the storage medium – as a result, the creation date can be later than the last modified date.  It’s common to use date sent for emails and to use last modified date for efiles.  But, there are exceptions, so again it’s important to agree up front as to which date to use.

So, what do you think?  Have you had any date disputes in your eDiscovery projects?   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.

ACEDS Announces its New Leadership: eDiscovery Trends

Ever since the BARBRI Group announced back in July that Association of Certified E-Discovery Specialists (ACEDS) Executive Director Mary Mack and Vice President Client Engagement Kaylee Walstad were departing from their roles at the end of October, a lot of people in the eDiscovery community have been waiting to see who would take over leadership of ACEDS.  We now have our answer.

In an email to the ACEDS community on Monday, BARBRI Group Chairman and CEO Stephen Fredette announced that “Mike Quartararo, a long-time ACEDS member, former law firm eDiscovery director, author and community leader has joined us as President of ACEDS and Professional Development. Additionally, leading legal industry strategist, consultant and author, Ari Kaplan, will apply his talents on a consulting basis to help build a new ACEDS Global Advisory Board and act as Chairperson for that group.”

In making the announcement, Fredette indicated that “Mike will be assuming the responsibilities of executive director Mary Mack, continuing to build on the tremendous foundation she established, leading the global ACEDS community, growing and supporting the members and local chapters, and reinforcing the best-in-class reputation of the CEDS certification. Additionally, Mike will work to leverage BARBRI’s diverse suite of legal education talent and professional development resources to create new education solutions and certificate programs for ACEDS members and the legal community.”

Of course, many of you know that Mike was the Director of Litigation Support for Stroock, that prior to that he led eDiscovery projects at Skadden Arps and that he is the author the 2016 book Project Management in Electronic Discovery (which you can buy here).  You may not know that Mike has been a member of ACEDS since its founding, helped shape portions of the original CEDS exam, and is part of the inaugural class to take and pass the exam.  So, Mike is as qualified as anybody to continue to build on the great work that Mary and Kaylee have done in building the ACEDS brand over the past few years.

In addition, many of you know Ari Kaplan, of Ari Kaplan Advisors, who is an attorney, a leading legal industry analyst and an author of several books on the business of law. He is also the principal researcher for several well-known and widely distributed benchmarking reports, is a frequent writer and speaker, and is the founder of Lawcountability, a business development platform for lawyers and law firms.

Having worked with (and been on panels with) both Mike and Ari in the past, I can certainly say that ACEDS has made great selections to keep the positive momentum going that Mary and Kaylee started.

So, what do you think?  Will this announcement mean good things for ACEDS and for the eDiscovery community?  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 Denies Plaintiff’s Request to Avoid Forensic Imaging of Devices in Apple Performance Case: eDiscovery Case Law

In the case In Re: Apple Inc., No. 5:18-md-02827-EJD (N.D. Cal. Aug. 22, 2019), California District Judge Edward J. Davila denied the plaintiffs’ motion to modify the Special Discovery Master order that authorized the forensic imaging of devices belonging to 10 of the more than 90 named plaintiffs in order to allow Apple’s outside experts to performance test the devices, finding that “Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest because Plaintiffs put the performance of the devices at the center of the lawsuit”.

Case Background

In this litigation involving the performance of Apple devices after software updates, the Special Discovery Master entered an order authorizing the forensic imaging of the devices belonging to 10 of the more than 90 named Plaintiffs in order to allow Apple’s outside experts to performance test the devices.  The plaintiff’s objected to the order and sought to modify the Order so that Apple’s discovery of the devices is limited to the extraction of “limited diagnostic data” instead of full forensic imaging, arguing that the Special Discovery Master made “erroneous factual findings and reached incorrect legal conclusions”.

The plaintiffs, basing their argument on the 2017 California Supreme Court case Williams v. Superior Court, argued that “[p]ersonal devices, like those at issue here, are afforded special privacy protections under the law. Apple therefore had to demonstrate a compelling need or interest to justify the forensic imaging. The Special Discovery Master should have conducted a balancing test between that compelling interest and the intrusion into Plaintiffs’ privacy posed by the imaging. But the Special Discovery Master failed to do so when she ‘deferr[ed] the basic question of scientific reliability to trial.’”

Judge’s Ruling

Judge Davila noted that the “motion is suitable for resolution without oral argument” and stated that “Plaintiffs’ concerns over their privacy rights are understandable; they are being asked to surrender their devices and passwords to strangers.”  But, Judge Davila also noted that the forensic imaging would be completed by a neutral, third-party computer forensics vendor and that those “outside experts will only provide counsel with their analyses and the data underlying their analyses…To the extent possible, the experts will redact the contents, authors, recipients, and subject-matter of the underlying data (and any associated metadata) or replace them with summary descriptions before providing the underlying data to Apple’s counsel.”

Judge Davila also concluded that “Plaintiffs actively put their devices at issue when they chose to sue Apple over Apple’s alleged intrusion and trespass to the devices through Apple’s software updates”, stating that “[i]t is well-established that a plaintiff cannot bring suit and then limit the defendant’s discovery that is targeted at the subject matter of the plaintiff’s claims.”  Noting that the plaintiffs “overreach” with regard to their argument “that the forensic imaging would ‘violat[e] Plaintiffs’ privacy with no gain’ to Apple”, Judge Davila found that “Apple has a compelling interest in the sought-after performance testing of Plaintiffs’ devices. The devices’ performance is integral to Plaintiffs’ claims. They allege that Apple’s software updates unjustly harmed the performance of their devices…Apple is entitled to defend itself against these allegations by testing whether the performance of the devices was, in fact, harmed. Later, Plaintiffs may challenge whether that testing is admissible, scientifically reliable, or ‘necessary’ for Apple’s defenses through in limine, Daubert, and other motions.”

So, what do you think?  Did the court properly weigh the balance of privacy and discovery in this 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.

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.

If You’re Going to Store Cookies, EU Court Says You Need the Users’ Active Consent: Data Privacy Trends

After two weeks in Italy, of course my first post back had to be a post about Europe, right?  ;o)  Regardless, while I was out last week, a notable decision was announced by the Court of Justice of the European Union which might impact a few people (i.e., anyone from the EU who accesses websites).

Anyway, as covered in Rob Robinson’s terrific Complex Discovery blog last week (Storing Cookies Requires Internet Users’ Active Consent Says Court of Justice of the European Union), in Case C-673/17, Bundesverband der Verbraucherzentralen und Verbraucherverbände ̶ Verbraucherzentrale Bundesverband eV v Planet49 GmbH, the Court of Justice of the European Union decided that the consent which a website user must give to the storage of and access to cookies on his or her equipment is not validly constituted by way of a prechecked checkbox which that user must deselect to refuse his or her consent.

Per the press announcement from the Court of Justice of the European Union, the German Federation of Consumer Organisations challenged the use by the German company, Planet49, of a pre-ticked checkbox in connection with online promotional games, by which internet users wishing to participate consent to the storage of cookies before the German courts.  As a result, the Bundesgerichtshof (Federal Court of Justice, Germany) asked the Court of Justice to interpret the EU law on the protection of electronic communications privacy.  P.S., don’t ask me to pronounce some of these words… ;o)

That decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data. EU law aims to protect the user from any interference with his or her private life, in particular, from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge.

The Court notes that consent must be specific so that the fact that a user selects the button to participate in a promotional lottery is not sufficient for it to be concluded that the user validly gave his or her consent to the storage of cookies.

Furthermore, according to the Court, the information that the service provider must give to a user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies.

Interesting data privacy developments continue that will certainly shape how we not only share information, but even use websites going forward.  It will be interesting to see what the landscape for internet use looks like a few years from now.

BTW, as noted above, I’ve been gone for two weeks, so I want to give a BIG THANKS to Tom O’Connor for his terrific white paper on 30(b)(6) witness depositions that we were able to cover as a six-part series on our blog for the past two weeks.  So, instead of giving you the “best of eDiscovery Daily” these past two weeks, we were able to give you new content!

Also, BTW, Complex Discovery is currently conducting its Fall 2019 eDiscovery Business Confidence Survey.  This is the sixteenth quarterly eDiscovery Business Confidence Survey conducted by Complex Discovery.  All questions are multiple-choice, and the entire survey can be completed in about two minutes, so please check it out and feel free to participate.

So, what do you think?  Will this ruling affect how websites request consent for cookies?  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.

Issuing the Hold is Just the Beginning: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on March 23, 2012, and concludes our two-part series on this topic.  There is more to litigation holds than just issuing an automated hold, suspending auto-delete programs (including those for text and other messaging apps) and tracking the responses.

Last week, we discussed identifying custodians, preparing a written litigation hold, issuing the hold and tracking responses.  Today, we’ll discuss interviewing hold notice recipients, follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Here are the rest of the best practices for implementing a litigation hold.

Interviewing Hold Notice Recipients: Depending on the case, follow-up interviews (with at least the key custodians) are generally accepted as a best practice and may be necessary to ensure defensibility of the notice.  The point of these interviews is to repeat the duty to preserve, provide a detailed explanation of the requirements of the hold, answer the recipient’s questions (if any), and confirm that the recipient understands and agrees to adhere to the notice. You should keep written records of each of these interviews and document the reasoning for determining which individuals to interview.

Follow-Up on Hold Notices: For a litigation hold plan to be successful and defensible, it needs to include periodic follow-up reminders to recipients of the notices to inform them that the data in question remains under hold until the case concludes. Follow-up reminders could simply be a retransmission of the original notice or they could be a summary of all of the notices the individual has received, if there are multiple cases with holds for that individual. There is no specific requirement on how often the reminders should be sent, but it’s best to send them at least quarterly.  For some cases, it may be necessary to send them monthly.

Release the Hold: Not to be confused with “release the hounds”, it is just as important to inform people when the duty to preserve the data expires (typically, when the case is completed) as it is to notify them when the duty to preserve begins.  Releasing the hold is key to ensure that information doesn’t continue to be preserved outside of the organization’s document retention policies – if it is, it may then become subject to litigation holds in other litigations unnecessarily.  Releasing the hold also helps keep custodians from being overwhelmed with multiple retention notices, which could cause them to take the notices less seriously.  However, the release notification should be clear with regard to the fact that data subject to hold in another matter should continue to be preserved to meet discovery obligations in that matter.

Hold Tracking System: It’s important to have a reliable “system” for tracking litigation holds across all matters within the organization. Depending on your needs, that could be part of the litigation hold tracking solution discussed in last week’s post, or it could even be a simple database or spreadsheet to track the information.  You should keep historical tracking data even for completed matters as that information can be useful in guiding hold issuance on new matters (by helping to identify the correct custodians for new matters that are factually similar or related to current closed or open matters).  At a minimum, a tracking system should:

  • Track responses from individual custodians and identify those who have not yet responded,
  • Track periodic reminder notices and release notices,
  • Provide ability to report a list of people with a duty to preserve for a specific matter as well as all matters for which a person is under retention.

So, what do you think?  Do you have a solid “hold” on your hold process?  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 Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: eDiscovery Case Law

In Ewing v. Aliera Healthcare, No. 19cv845-CAB-LL (S.D. Cal. Aug. 12, 2019), California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

Case Background

In support of his motion, the plaintiff stated that “Local Rule 83.4 requires civil, courtesy and dignity in all communication, oral and written.”  The plaintiff also noted that defendant’s counsel “admitted to hanging up the phone on Plaintiff to the Court’s law clerk” and also requested permission to file a reply.

The defendant opposed the plaintiff’s motion on the grounds that “Plaintiff has failed to establish why Judge Lopez should sanction counsel for Aliera” noting that at issue is only “one phone call between Plaintiff and Aliera’s counsel on July 24, 2019.”  The defendant also stated:

“Plaintiff insists on recording every phone conversation, despite counsel for Aliera objecting to such recordings…The reason counsel cut his July 24 phone conversation short was because he had already confirmed that the meet and confer meeting with Plaintiff would take place on July 30; not on July 25 as Plaintiff later demanded, and despite Plaintiff’s protestations and desire to schedule it for the week of July 22…Plaintiff [then] insisted on demanding why Judge Lopez allowed Aliera’s counsel, Dwight Francis, to appear at the ENE on July 1, 2019. This extraneous demand was irrelevant to the topic of the July 24 call, and followed up on a letter Plaintiff had earlier written counsel on the same non-issue. Counsel, who was extremely busy, informed Plaintiff that he would need to take that issue up with Judge Lopez, and ended the call.”

Judge’s Ruling

Judge Lopez began her ruling by stating: “As an initial matter, the Court denies Plaintiff’s request for leave to file a reply. The Court has reviewed the briefing and finds that it has sufficient information on this issue. Notably, Plaintiff’s Motion lacks any law or authority in support of the request for sanctions.”

She ended her ruling by stating: “Here, the conduct at issue in Plaintiff’s Motion, defense counsel hanging up the phone prematurely one time during a conversation with Plaintiff, does not warrant sanctions. Indeed, defense counsel’s opposition sets forth a reasonable explanation of why defense counsel “cut short” the July 24, 2019 phone conversation. Accordingly, the Court DENIES Plaintiff’s request to impose sanctions. The Court also DENIES Defendant’s request to order Plaintiff to compensate Defendant for the time incurred in having to oppose the instant Motion. However, the Court reminds the parties that any future unprofessional conduct or otherwise improper conduct (including but not limited to filing motions with no basis in the law) may warrant a motion for sanctions by either party.”

So, what do you think?  Should attorneys be sanctioned for hanging up on each other?  Or for filing sanctions motions for opposing counsel doing so?  Or both?  ;o)  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.