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Doug Austin

July Pop Quiz! – eDiscovery Trends

The pop quizzes on the Litigation 101 for eDiscovery Tech Professionals series were so well received, we thought we would try a pop quiz for the topics we’ve covered in the past month.  If you’re reading the blog each day, these questions should be easy!  If not, we’ve provided a link to the post with the answer.  We’re that nice.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

 

1.  In Cottle-Banks v. Cox Commc’ns, Inc., the plaintiff’s motion for spolation sanctions was denied because:

 

A. The defendant didn’t have an obligation to preserve the call recordings

B. The defendant didn’t have a culpable state of mind

C. The plaintiff was unable to show that the deleted recordings would have been relevant

D. None of the above

 

2.  How can you ensure that Word’s smart quotes won’t disrupt your search with garbage characters?

 

A. Disable the automatic changing of quotes to smart quotes in Word

B. Perform a “find and replace” of smart quotes to regular quotes in a text editor

C. Copy the word doc into a text editor, then convert to ASCII

D. All of the above

 

3.  Which of the following is NOT a proportionality factor in the Pennsylvania Rules of Civil Procedure, as spelled out in PTSI, Inc. v. Haley?

 

A. The total net worth of the producing party at the time the case was filed

B. The nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake

C. The relevance of electronically stored information and its importance to the court’s adjudication in the given case

D. The ease of producing electronically stored information and whether substantially similar information is available with less burden

 

4.  Which proposed Federal rule to be amended would require that courts allow discovery that is “proportional to the needs of the case”?

 

A. Rule 26(b)(1)

B. Rule 26(b)(2)(C)(iii)

C. Rule 37(e)

D. Rule 37(b)(2)(A)

 

5.  In which case were the parties disputing whether an eDiscovery vendor could work for both sides in the same case?

 

A. Lazette v. Kulmatycki

B. Gordon v. Kaleida Health

C. Harry Weiss, Inc. v. Moskowitz

D. Hart v. Dillon Cos

 

6.  How many times has the EDRM Talent Task Matrix been downloaded since it was introduced in January?

 

A. Less than 250

B. More than 250, but less than 500

C. More than 500, but less than 1,000

D. More than 1,000

 

7.  Which of the following is NOT a challenge when producing documents?

 

A. Courts and opposing counsel are increasingly demanding ‘native file productions’

B. Native files can be altered (either intentionally or not)

C. Native files don’t provide enough metadata

D. Native files cannot be redacted

 

8.  Which of the following is a problem that needs to be addressed to review electronic files?

 

A. Image only electronic files such as TIFF or image-only PDF files have no searchable text

B. Outlook Emails require processing to break them out into individual files

C. In almost every collection, there are some files that cannot be processed or searched

D. All of the above are problems

 

9.  Which of the following is NOT a question that CloudNine Discovery asks our clients before processing their data?

 

A. Should de-duplication performed at the case or the custodian level?

B. Should Outlook emails be extracted in MSG or PST format?

C. What time zone should we use for email extraction?

D. Should we perform OCR for image-only files that don’t have corresponding text?

 

10. According to Rob Robinson’s eDiscovery Market Size Mashup, how big will the eDiscovery Software and Services market be in 2017?

 

A. $2.78 Billion

B. $5.53 Billion

C. $7.03 Billion

D. $9.81 Billion

 

 

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Five eDiscovery Trailblazing Judges – eDiscovery Trends

Yesterday, we discussed an article in The American Lawyer by Alan Cohen about six people who deserve special consideration as true trailblazers in eDiscovery.  Today, let’s take a look at five trailblazing judges in eDiscovery.

In Lisa Holton’s article (E-Discovery: A Front-Row Seat), also in The American Lawyer, she discusses how “judges…saw how uninformed many attorneys and their clients were about technology and how resistant they were to a series of new rules.”  She profiles five “pioneers” that “have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.”  Here they are:

Shira Scheindlin, Judge, U.S. District Court for the Southern District of New York: Perhaps the most famous judge of the most famous case, Zubulake v. UBS Warburg, (which addressed legal holds on electronic documents) Judge Scheindlin has had a dramatic effect on shaping the industry.  She also proceeded to address the levels of culpability — negligence, gross negligence, and willfulness in the electronic discovery context in her famous Pension Committee opinion.  As Holton notes in her article, “Scheindlin’s involvement in the ongoing e-discovery pilot project dealing with complex litigation in the Southern District is an example of her continuing work to shape and improve e-discovery processes. And she’s been vocal on the issue of proportionality—the need to balance the total cost of electronic document discovery with the value of the case—from the start.”  She has also been a busy speaker on eDiscovery topics and co-published a book back in 2009 called Electronic Discovery and Digital Evidence in a Nutshell.

Lee Rosenthal, Judge, U.S. District Court for the Southern District of Texas: After being elevated to chairman of the Judicial Conference Advisory Committee on Federal Rules of Civil Procedure in 2003, Judge Rosenthal led the effort to create and adopt the 2006 amendments to the rules that addressed – for the first time – how electronically stored information (ESI) should be handled in civil litigation.  These Federal Rules have been instrumental in providing guidance to attorneys and judges on how to address issues with ESI, and the article provides some interesting “backstory” regarding that process.

Andrew Peck, U.S. Magistrate Judge, Southern District of New York: Judge Peck has been a leader in the effort to use technology to assist with the searching and review process and his February 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Group is considered by many to be the first ruling approving computer-assisted review (click here for the considerable dispute that has followed) and his article Search, Forward is one of the few judicial articles advocating the use of computer-assisted review, which has become perhaps the hottest topic in eDiscovery today.

Paul Grimm, Judge, U.S. District Court for the District of Maryland: Judge Grimm has been a key advocate for proportionality and cooperation in the eDiscovery process.  His ruling in 2008’s Mancia v. Mayflower Textile Services Co. contained a detailed examination of Rule 26(g) of the Federal Rules of Civil Procedure, which covers eDiscovery duty to disclose requirements, and other law calling for cooperation among parties in discovery.  His ruling of severe sanctions in Victor Stanley, Inc. v. Creative Pipe, Inc. was also the very first case this blog covered on our very first day.  🙂

John Facciola, U.S. Magistrate Judge, U.S. District Court for the District of Columbia: Judge Facciola’s key eDiscovery opinions include: Citizens for Responsibility & Ethics in Washington v. Executive Office of the President (which forced preservation of digital media in government); United States v. O’Keefe (which set guidelines for keyword challenges); and Equity Analytics v. Lundin (which set guidelines for challenges or defenses of search methodology).  Also, In Taydon v. Greyhound Lines, Inc., he laid down the law to the parties in the case requiring cooperation on eDiscovery issues, stating “there is a new sheriff in town—not Gary Cooper, but me.”

A link to Lisa’s article is here.  So, what do you think?  How have these judicial trailblazers influenced you?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Six eDiscovery Trailblazers – eDiscovery Trends

As we discussed on Monday, the electronic discovery industry is now a multi-billion dollar industry and experiencing double-digit growth year after year.  It’s hard to believe that a couple of decades ago, this industry – for all intents and purposes – didn’t even exist.  Now it’s huge, and – as noted in Alan Cohen’s article in The American Lawyer – there are six people who deserve special consideration as true trailblazers in the industry.

Alan’s article, Present at the Creation, notes that these trailblazers “come from different backgrounds. Some are lawyers, some are technology experts, and some are a little of both. But these e-discovery leaders all share an unmistakable and seemingly unbreakable dedication to an area of the law that makes many of us scratch our heads. They have explained e-discovery, quantified it, and helped shape the rules, the case law, and even the business models. Most of the pioneers listed below have been at this for decades, but like the field itself, they’re just getting started. We still may not get as enthusiastic about e-discovery as they do, but thanks to their efforts, we’re no longer mystified by it.”  Here is a list of the eDiscovery trailblazers:

Martha Dawson, Partner, K&L Gates: In response to dealing with early 1990s electronic discovery issues in the Exxon Valdez and Microsoft antitrust litigations, Martha founded Preston Gates’s e-Discovery Analysis and Technology group (e-DAT), which was considered to be the first of its kind—a practice group dedicated exclusively to eDiscovery.  It used project-based attorneys for review that only worked on eDiscovery and who could be billed at lower rates than associates, offering clients savings of over 50 percent compared to traditional methods of document review.

George Socha, Socha Consulting & Tom Gelbmann, Gelbmann & Associates: Founders of the Electronic Discovery Reference Model (EDRM) nine years ago to standardize the definition of the eDiscovery process, the EDRM diagram has become a standard model for representing the flow of information through that process.  Since then, EDRM has delivered a number of additional models and tools to aid those in eDiscovery (including announcements this blog has covered for Model Code of Conduct, Search, Metrics, Jobs and Information Governance, to name a few).  As a member of EDRM for most of its nine years, I’ve seen a lot of accomplishments over that time.  George and Tom have also both been thought leader interviewees on this blog for the past three years.

John Tredennick, Catalyst Repository Systems: John transitioned from litigator at Denver’s Holland & Hart, to the firm’s CTO, to CEO of spin-off Catalyst Repository Systems with a vision of applying the Internet to legal technology as far back as 1996.  These days, almost everybody in the industry has experienced the benefits of cloud-based technology for eDiscovery processes such as collection and review, making it easy to access important data anywhere and share that data with other parties in the case seamlessly.  There are several vendors today offering cloud-based solutions for eDiscovery, including (shameless plug warning!) CloudNine Discovery with our OnDemand® review platform.

Jason R. Baron, U.S. National Archives and Records Adminstration: As director of litigation for the U.S. National Archives and Records Administration, Jason had to search tens of millions of White House emails as part of a discovery request by big tobacco companies in a RICO lawsuit against them.  Looking for a better approach, Jason has been a key member of the Sedona Conference and a cofounder (in 2006, with University of Maryland professor Douglas Oard), of the Legal Track at the Text Retrieval Conference (TREC).  TREC studies have been instrumental in showing the limitations of keyword search and in helping technology-assisted review win judicial approval.

Richard Braman, The Sedona Conference: As founder of The Sedona Conference, a think tank on law and policy, Braman brought together the best minds in eDiscovery to create rules for eDiscovery.  Sedona’s first working group published the groundbreaking “Sedona Principles” which are 14 guidelines for the eDiscovery process with commentary including best practices.  There are now 10 working groups on a variety of legal topics, and this blog has covered some of the guidelines, including those on Proportionality, Cooperation, Database Principles and International Principles.  The Sedona Conference continues to be a leader in best practice guidelines in the industry.

A link to Alan’s article is here.  Tomorrow, we will discuss five judges at the forefront of electronic discovery.

So, what do you think?  How have these trailblazers influenced you?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Data May Be Doubling Every Couple of Years, But How Much of it is Original? – eDiscovery Best Practices

According to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months. However, just because it doubles doesn’t mean that it’s all original. Like a bad cover band singing Free Bird, the rendition may be unique, but the content is the same. The key is limiting review to unique content.

When reviewers are reviewing the same files again and again, it not only drives up costs unnecessarily, but it could also lead to problems if the same file is categorized differently by different reviewers (for example, inadvertent production of a duplicate of a privileged file if it is not correctly categorized).

Of course, we all know the importance of identifying exact duplicates (that contain the exact same content in the same file format) which can be identified through MD5 and SHA-1 hash values, so that they can be removed from the review population and save considerable review costs.

Identifying near duplicates that contain the same (or almost the same) information (such as a Word document published to an Adobe PDF file where the content is the same, but the file format is different, so the hash value will be different) also reduces redundant review and saves costs.

Then, there is message thread analysis. Many email messages are part of a larger discussion, sometimes just between two parties, and, other times, between a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Pulling those messages together and enabling them to be reviewed as an entire discussion can eliminate that redundant review. That includes any side conversations within the discussion that may or may not be related to the original topic (e.g., a side discussion about the latest misstep by Anthony Weiner).

Clustering is a process which pulls similar documents together based on content so that the duplicative information can be identified more quickly and eliminated to reduce redundancy. With clustering, you can minimize review of duplicative information within documents and emails, saving time and cost and ensuring consistency in the review. As a result, even if the data in your organization doubles every couple of years, the cost of your review shouldn’t.

So, what do you think? Does your review tool support clustering technology to pull similar content together for review? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 Compels Discovery of Plaintiff’s Facebook Posts as Relevant – eDiscovery Case Law

In Moore v. Miller, No.: 10-cv-651-JLK, 2013 (D. Colo. June 6, 2013), Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

In this case, the defendants filed a motion to enforce the court’s order to compel the plaintiff’s production of “writings related to his arrest, his tax records, and his employment records.” As part of those writings, the defendants asked for his Facebook records and activity log and documents he posted on his websites. The defendants claimed that the plaintiff did not comply because he only partially produced writings, including “‘an incomplete and highly-redacted printout of Plaintiff’s Facebook wall posts’” and he did not produce an activity log.

The plaintiff relied on his interpretation of “about his arrest” to narrow the scope of the order compelling production. The court remarked that narrowing the scope to this extent would “exclude writings relevant to the arrest such as writings relating to Mr. Moore’s bias, emotional and physical states before and after the arrest and his alleged physical and mental injuries.” Moreover, the court noted that the defendants’ request for Facebook information extended to “all of his missing Facebook posts” and the activity log.

The plaintiff argued that this expanded scope sought irrelevant evidence and would invade his privacy. But the court found the plaintiff’s allegations of physical injury and emotional distress warranted a more in-depth review of his social media account. His “Facebook activity is relevant to his claims of emotional pain and suffering (for which he claims $750,000 in damages) as well as his claims of physical pain ($750,000) and humiliation ($500,000).” Moreover, the plaintiff “reputedly has chosen to share his version of events online often and in many different forums, including detailed and specific descriptions of what he alleges happened to him on March 25, 2008, as well as the injuries he allegedly suffers to this day.” {emphasis added}

Although the plaintiff requested that the data be reviewed in camera, the court found its protective order would protect the plaintiff’s privacy.

The court also granted the defendants’ motion for attorneys’ fees related to the motion, noting “how unfortunate it is that the parties’ differing interpretations about the scope of ordered discovery spawned a chain of hostile emails and ultimately the instant motion. Where the nature or scope of an Order is contested, the best course of action is for the disputing parties jointly to file a motion for clarification.” In addition, the motion sought the defendant’s current address, tax returns, and employment history: “No party should have to resort to motion practice to obtain information as elemental as a party opponent’s address.”

So, what do you think?  Was the judge right to allow discovery of the plaintiff’s Facebook information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How Big is the eDiscovery Market? Here’s all the Estimates in One Place – eDiscovery Trends

Rob Robinson’s Complex Discovery site is an excellent resource for discovery and general legal technology articles – his weekly top story digest is a terrific source for keeping tabs on the industry.  Now, Rob has created a compilation of various eDiscovery market estimates for the next several years to provide An eDiscovery Market Size Mashup for 2012 to 2017.

As Rob notes: “Taken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts and discussions over time, the following eDiscovery Market Size Mashup shares general market sizing estimates for both the software and service areas of the electronic discovery market for the years between 2012 and 2017.”

It includes a combined market view of software and services together, as well as a software-centric market view and a service-centric market view.  The highlights (based on the estimated from the compiled sources) are:

  • The eDiscovery Software and Services market is expected to grow an estimated 15.4% Compound Annual Growth Rate (CAGR) per year from 2012 to 2017 from $5.53 billion to $9.81 billion per year.  Services comprise approximately 72% of the market and software comprises approximately 28%.
  • The eDiscovery Software market is expected to grow an estimated 16.78% annual growth per year from 2012 to 2017 from $1.49 billion to $2.78 billion per year.  Processing and Review applications currently comprise 62% of the software market (expected to drop to 55% by 2017), while Early Case Assessment applications currently comprise 38% of the market (expected to rise to 45% by 2017).
  • The eDiscovery Services market is expected to grow an estimated 14.9% annual growth per year from 2012 to 2017 from $4.04 billion to $7.03 billion per year.  The breakdown of the services market is as follows: 73% review, 19% processing and 8% collection.  Personally, I think collection will be a larger percentage that that – at least based on my experiences.

Here are the sources that Rob states were used in compiling the “mashup” (links to our blog posts when available):

For more information (including some cool, informative graphs), click here.  Thanks, Rob!

So, what do you think?  Do those growth numbers surprise you?  Do you agree with them?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Good Processing Requires a Sound Process – eDiscovery Best Practices

As we discussed yesterday, working with electronic files in a review tool is NOT just simply a matter of loading the files and getting started.  Electronic files are diverse and can represent a whole collection of issues to address in order to process them for loading.  To address those issues effectively, processing requires a sound process.

eDiscovery providers like (shameless plus warning!) CloudNine Discovery process electronic files regularly to enable their clients to work with those files during review and production.  As a result, we are aware of some of the information that must be provided by the client to ensure that the resulting processed data meets their needs and have created an EDD processing spec sheet to gather that information before processing.  Examples of information we collect from our clients:

  • Do you need de-duplication?  If so, should it performed at the case or the custodian level?
  • Should Outlook emails be extracted in MSG or HTM format?
  • What time zone should we use for email extraction?  Typically, it’s the local time zone of the client or Greenwich Mean Time (GMT).  If you don’t think that matters, consider this example.
  • Should we perform Optical Character Recognition (OCR) for image-only files that don’t have corresponding text?  If we don’t OCR those files, these could be responsive files that are missed during searching.
  • If any password-protected files are encountered, should we attempt to crack those passwords or log them as exception files?
  • Should the collection be culled based on a responsive date range?
  • Should the collection be culled based on key terms?

Those are some general examples for native processing.  If the client requests creation of image files (many still do, despite the well documented advantages of native files), there are a number of additional questions we ask regarding the image processing.  Some examples:

  • Generate as single-page TIFF, multi-page TIFF, text-searchable PDF or non text-searchable PDF?
  • Should color images be created when appropriate?
  • Should we generate placeholder images for unsupported or corrupt files that cannot be repaired?
  • Should we create images of Excel files?  If so, we proceed to ask a series of questions about formatting preferences, including orientation (portrait or landscape), scaling options (auto-size columns or fit to page), printing gridlines, printing hidden rows/columns/sheets, etc.
  • Should we endorse the images?  If so, how?

Those are just some examples.  Questions about print format options for Excel, Word and PowerPoint take up almost a full page by themselves – there are a lot of formatting options for those files and we identify default parameters that we typically use.  Don’t get me started.

We also ask questions about load file generation (if the data is not being loaded into our own review tool, OnDemand®), including what load file format is preferred and parameters associated with the desired load file format.

This isn’t a comprehensive list of questions we ask, just a sample to illustrate how many decisions must be made to effectively process electronic data.  Processing data is not just a matter of feeding native electronic files into the processing tool and generating results, it requires a sound process to ensure that the resulting output will meet the needs of the case.

So, what do you think?  How do you handle processing of electronic files?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – No hamsters were harmed in the making of this blog post.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Files are Already Electronic, How Hard Can They Be to Load? – eDiscovery Best Practices

Since hard copy discovery became electronic discovery, I’ve worked with a number of clients who expect that working with electronic files in a review tool is simply a matter of loading the files and getting started.  Unfortunately, it’s not that simple!

Back when most discovery was paper based, the usefulness of the documents was understandably limited.  Documents were paper and they all required conversion to image to be viewed electronically, optical character recognition (OCR) to capture their text (though not 100% accurately) and coding (i.e., data entry) to capture key data elements (e.g., author, recipient, subject, document date, document type, names mentioned, etc.).  It was a problem, but it was a consistent problem – all documents needed the same treatment to make them searchable and usable electronically.

Though electronic files are already electronic, that doesn’t mean that they’re ready for review as is.  They don’t just represent one problem, they can represent a whole collection of problems.  For example:

These are just a few examples of why working with electronic files for review isn’t necessarily straightforward.  Of course, when processed correctly, electronic files include considerable metadata that provides useful information about how and when the files were created and used, and by whom.  They’re way more useful than paper documents.  So, it’s still preferable to work with electronic files instead of hard copy files whenever they are available.  But, despite what you might think, that doesn’t make them ready to review as is.

So, what do you think?  Have you encountered difficulties or challenges when processing electronic files?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Spoliation Sanctions Can Apply to Audio Files Too – eDiscovery Case Law

In Hart v. Dillon Cos., 2013 U.S. Dist. (D. Colo. 2013), Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

As noted in the opinion, here are the facts:

  • On August 23, 2011, the plaintiff was terminated by the defendant for allegedly giving herself the incorrect pay rate while working in the bookkeeping department. As part of the defendant’s investigation, a loss prevention specialist for the defendant secretly tape recorded an interview with the plaintiff on August 6 which in part led to the termination of the plaintiff.
  • On November 1, 2011, the plaintiff filed an E.E.O.C. charge of discrimination.
  • On November 7, 2011, the defendant denied the plaintiff’s request for arbitration knowing the plaintiff would probably litigate the matter.
  • Sometime between January and March of 2012, the loss prevention specialist inadvertently taped over or erased his interview with the plaintiff.
  • On January 30, 2012, the plaintiff filed her Complaint.
  • On March 1, 2012, the defendant issued a litigation hold on all related documentation. Before the contents of the tape were destroyed, Pollard prepared a “case narrative” in writing which the defendant asserts is substantially accurate and the plaintiff claims does not include exculpatory information and the tenor of the interview.

As noted in the opinion, there is a three part test to determine spoliation of evidence:

1. Is the evidence relevant to an issue at trial?

2. Did the party have a duty to preserve the evidence because it knew or should have known, that litigation was imminent?

3. Was the other party prejudiced by the destruction of the evidence?

Judge West found that the interview was relevant as the defendant relied on the interview as part of the decision to terminate the plaintiff.  He also found that the defendant had a duty to preserve the data as far back as November 7, 2011, when the plaintiff’s request for arbitration was denied.  And, he found that the plaintiff was prejudiced by destruction of the audio, noting as many as 21 discrepancies between the defendant’s case narrative and the plaintiff’s stated recollection in her deposition and affidavit.  As he noted:

“Defendant was clearly four (4) months late in issuing a “litigation hold” concerning the tape in Pollard’s possession, and the Court finds Defendant is highly culpable for the failure to preserve the taped interview.

A failure to preserve evidence may be negligent, grossly negligent, or willful. After the duty to preserve attaches, the failure to collect taped recording from a key player is grossly negligent or willful behavior.”

Thus, Judge West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence and ordered the hearing to determine the sanctions to be applied to the defendant.

So, what do you think?  Did the judge make the right decision?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Wish There Were Better Standards for Production of Native Files? Enough is ENF! – eDiscovery Trends

At the Electronic Discovery Reference Model (EDRM) annual meeting back in May, I provided updates for several of the EDRM projects, two of which (Metrics and Jobs) have already made significant announcements since the meeting.  Another project, the new Native Files project, has recently released two white papers authored by EDRM member Wade Peterson (of Bowman and Brooke LLP) proposing the creation and adoption of a new ENF (encapsulated native file) standard for the production of native files.

In Can Native File Productions be ENF (Enough)?, Peterson presents the conceptual framework for defining the new standard.  This white paper includes several sections, such as:

  • Background: Describes the historical background regarding traditional document productions as either paper, TIFF or PDF;
  • Executive Overview: Describes the problem (outdated standards defined almost two decades ago) and the purpose of the paper (to present a conceptual framework for defining a new, up-to-date standard that reflects “3-dimensional” native documents);
  • Challenges: A list of several challenges facing litigation support professionals today when producing documents, including these: “Courts and opposing counsel are increasingly demanding ‘native file productions’”, “Native files can be altered (either intentionally or not)” and “Native files cannot be redacted”;
  • Solution: The stated goal to develop a new standard for document productions, which addresses today’s concerns, has an open architecture to meet future requirements and is eventually adopted by courts as the legal standard;
  • Architecture: A detailed description of the architecture “framework for ‘encapsulating’ native files in sort of an envelope metaphor”, with a diagram to illustrate the framework;
  • Enhancements to the Standard: A discussion of possible enhancements that could be incorporated into the open-architecture standard;
  • Overcoming Obstacles: A discussion of potential obstacles as well as processes and tools needed to support this standard;
  • Conclusion: A summary call to construct a new document production standard to replace the standards “defined well over 20 years ago to produce documents which didn’t even exist 20 years ago”;
  • Author: A bio of the author, Wade Peterson.

In This is Just About ENF, Wade illustrates a sample ENF, describes some of its elements, and describes the operation of a basic utility to view ENF files.  It shows a sample XML representation of a sample ENF, describes Attributes, potential Vendor enhancements to ENF files, includes a detailed description of the Native Files element of the ENF, discusses Areas of Concern when dealing with native files and illustrates a very basic viewing tool, which he refers to as “viewENF”.

The two white papers reflect quite a bit of thought and effort to begin the process to create and adopt a new standard for addressing a growing problem – the production of a diverse collection of native files.  It will be interesting how the effort progresses to gain support for this proposed new standard.

So, what do you think?  Does this proposed standard appear to be a promising solution to the native file production issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

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