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Doug Austin

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.

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.

Hold It Right There!: 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 22, 2012, when eDiscovery Daily was just over a year and a half old.  Even though the Federal Rules changes of 2015 have made sanctions more difficult to obtain with the “intent to deprive” standard in Rule 37(e) for significant sanctions for spoliation of ESI, failure to issue a litigation hold has been seen in the eyes of some courts as an intentional act, leading to adverse inference instruction sanctions or even dismissal or default judgment of the case.  So, implementing a solid litigation hold is as important than ever.  Also important is suspending any auto delete programs that are running for key custodians.  Seven and a half years ago, those were primarily associated with email auto delete programs, but it now is just as important for text message and other message programs as well, as illustrated by these three recent cases.  Enjoy!

When we review key case decisions every year related to eDiscovery, the most case law decisions are almost always those related to sanctions and spoliation issues.  Most of the spoliation sanctions were due to untimely or inadequate preservation of the data for litigation.  As noted in the historic Zubulake decision, Judge Shira Sheindlin ruled that parties in litigation have an obligation to preserve potentially relevant data as soon as there is a reasonable expectation that data may be relevant to future litigation.  However, even if the party reacts in a timely manner to take steps to preserve data through a litigation hold, but executes those steps poorly, data can be lost and sanctions can occur.  Here are some best practices for implementing a litigation hold.

The most effective litigation hold plans are created before actual litigation arises and applied consistently across all matters. While cases and jurisdictions vary and there are not many hard and fast rules on implementing litigation holds, there are generally accepted best practices for implementing holds.  Implementation of a litigation hold generally includes each of the steps identified below:

Identify Custodians and Suspend Auto-Delete Programs: As we have learned in many cases over the years, it’s important to completely identify all potential custodians and suspend any automatic deletion programs that might result in deletion of data subject to litigation.  As noted above, those auto-delete programs extend to more than just email these days, as we have seen several cases (especially lately) involving failure to suspend auto-delete programs for text and other messaging apps.

Custodians can be individuals or non-individual sources such as IT and records management departments.  To determine a complete list of custodians, it’s generally best to conduct interviews of people identified as key players for the case, asking them to identify other individuals who are likely to have potentially relevant data in their possession.

Prepare Written Hold Notice: Hold notices should be in writing, and should typically be written in a standard format.  They should identify all types of data to be preserved and for what relevant period.  Sometimes, hold notices are customized depending on the types of custodians receiving them (e.g., IT department may receive a specific notice to suspend tape destruction or disable auto-deletion of emails).

Distribute Hold Notice: It is important to distribute the notice using a communication mechanism that is reliable and verifiable. Typically, this is via email and litigation hold distribution and tracking mechanisms have become much more common in recent years. Distribution should occur only to the selected and specific individuals likely to have potentially relevant information, usually not company-wide, as not everyone will understand the parameters of the hold.  Believe it or not, notices with overly broad distributions have, in some cases, been deemed inadequate by courts.

Track Responses: It is advisable to require recipients of the litigation hold notice to confirm their receipt and understanding of the notice via a method that can be tracked (again, a litigation hold program can help automate this process as it can keep track of those who have acknowledged receipt of the hold notice as well as who hasn’t).  These litigation hold distribution and tracking programs have become preferable to any manual programs for tracking read receipt notifications through email.

Next week, we’ll discuss follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Hasta la vista, baby!

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.

Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices

So many topics, so little time (again).  In our webcast about millennials and their impact on eDiscovery last week, Tom O’Connor and I spent a lot of time talking about how millennials are quick to embrace new technology and certainly there have been few technology areas of growth like mobile device use.  They’re everywhere and used by (seemingly) everybody and used (seemingly) all day long.  Texts are the new emails, which means they have considerable importance from an eDiscovery perspective.  So, who should you go to if you want to stay apprised of mobile eDiscovery trends?  Craig Ball is “that guy”.

In Craig’s excellent Ball in Your Court blog, his latest post from last week (Preserving Android Evidence: Return of the Clones?), discusses Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In discussing this new capability, Craig states: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.

Now, it should be feasible to direct custodians to undertake a simple online preservation process for Android phones having many of the same advantages as the preservation methodology I described for iPhones two years ago.  Simple.  Scalable.  Inexpensive.”

Craig did acknowledge that because Android backups live in the cloud, he anticipates that, at first, there will be no means to download the complete Android backup to a PC for analysis, thus requiring restoring the data to a factory-initialized “clean” phone as a means to localize the data for collection (at least until Google hopefully provides a suitable takeout mechanism).  As a result, “examiners may revive the tried-and-true cloning of evidence to clean devices then collecting from the restored device” (just like they once did with computer drives).  “Everything old is new again.”

Whether it’s informing us of simpler, less expensive ways of preserving iPhone and Android data, or keeping us updated as Apple announces it’s doing away with iTunes, or educating us on geolocation data, or providing us an easy to understand Mobile Evidence Burden and Relevance Scorecard.  Or he’s providing us with an entire 24 page white paper on mobile device discovery titled Mobile to the Mainstream.  So, when it comes to best practices and useful tips regarding mobile device discovery, Craig Ball is “that guy” (see what I did there, Craig?).  ;o)

So, what do you think?  Are you struggling with mobile device discovery?  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.

Nine is Divine! eDiscovery Daily is (Cloud)Nine Years Old!

Our “nine clouds” logo is making a one-day comeback!  If you read our blog yesterday, you probably noticed that our Throwback Thursday post was from the day eDiscovery Daily was launched.  That was nine years ago today!

We launched nine years ago on September 20, 2010.  Back then, we told you to not get “wild” with wildcards (and repeated that message yesterday).  And, we published our first case law post about a case where the spoliator of data was actually threatened with jail time –  our first of 701 posts about case law to date, covering more than 540 distinct cases!  We’ve published over 2,269 lifetime posts, and every post is still available on the site for your reference.  We’ve been around for so long and published so much, we don’t even bother with the six month milestones anymore!

And, as always, we have you to thank for all of that success!  Thanks for making the eDiscovery Daily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support – you make us feel like we’re on CloudNine!

As many of you know by now, we like to take a look back each anniversary at some of the important stories and topics during that time.  So, here are some posts over the last few months you may have missed.  Enjoy!

Here’s an evidence story that only a word geek like me can appreciate.

How many states have Security Breach Notification Laws? You might be surprised.

When does a party fight NOT to have a claim against them dismissed?  When they think it keeps their sanction possibility alive – at least in this case.

Phishing emails can be so deceiving these days.  Here’s an example of one and what you can do about them.

Do you still use the Enron data set for testing?  Maybe you shouldn’t.

Should a judge accept a Facebook friend request from a litigant?  Maybe not always.

If you’re going to fire your IT guy, you might want to change the passwords on your servers.  All 23 of them.

Significant spoliation sanctions may be more difficult to get now, but “it’s never over ‘til it’s over” as this case shows.

Just because you have a Motion to Dismiss pending doesn’t mean you can stay discovery until it’s decided.

Why do hackers hack?  For the money, of course.

Here’s a “cautionary tale about how not to conduct discovery in federal court”.  ‘Nuff said.

How many times do you have to spoliate ESI before you receive case termination sanctions?  In this case, more than three.

There are plenty of reasons that organizations experience a data breach: unpatched vulnerabilities in your software is only the latest one to worry about.

Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation seen such “carnage”.

Data privacy fines keep going up.  This proposed fine was for $230 million.  This one was approved for more than 20 times that.

If you keep track of Hollywood news, you probably already know this story.  But, you may not know the eDiscovery significance of the Kevin Spacey harassment cases.

Here are some of my observations regarding this year’s ILTACON conference using the theme of the classic spaghetti western The Good, The Bad and the Ugly.

Sure, we’ve been talking a lot the past couple of years about GDPR and CCPA.  But, “COPPA” just cost YouTube and Google $170 million.

In this case regarding spoliation of cell phone data, the judge recommended that the intent to deprive question be left up to the jury.  So did this one.

This is just a sampling of topics that we’ve covered.  Hope you enjoyed them!

Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery, cybersecurity and data privacy news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!  On to 10 years!  Do it again at ten!  :o)

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.

Don’t Get “Wild” with Wildcards: 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 September 20, 2010 – which was the day eDiscovery Daily was launched!  We launched that day with an announcement post, this post and our first case law post where Judge Paul Grimm actually ordered the defendant to be imprisoned for up to two years or until he paid the plaintiff “the attorney’s fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”  (Spoiler alert – the defendant didn’t ultimately go to jail, but was ordered to pay over 1 million dollars to the plaintiff)…

Even before the 2015 Federal Rules changes, we didn’t see any other cases where the parties were threatened with jail time.  But I personally have seen several instances where parties still want to get “wild” with wildcards.  We even covered a case where the parties negotiated terms that included the wildcard for “app*” because they were looking for phone applications or apps (an even more extreme example than the one I detail below).  Check it out too.  And, enjoy this one as well!  It’s as relevant today as it was (almost) nine years ago!

A while ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel.  One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why?  Because there are 269 words in the English language that begin with the letters “min”.  Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”.  We ultimately had to go back to opposing counsel and negotiate a revised search that was more appropriate.

How do you ensure that you’re retrieving all variations of your search term?

Stem Searches

One way to capture the variations is with stem searching.  Applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations.  Stem searching provides the ability to find all variations of a word without having to use wildcards.

Other Methods

If your application doesn’t support stem searches, Morewords.com shows list of words that begin with your search string (e.g., to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters).  Choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

Many applications let you preview the wildcard variations you wish to use before running them.  For example, our CloudNine Review™ solution (shameless plug warning!) performs a preview when you start to type in a search term to show you words within the collection that begin with that string.  As a result, you can identify an overbroad term before you agree to it.

So, what do you think?  Have you ever been “burned” by wildcard searching?  Do you have any other suggested methods for effectively handling them?  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.