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Doug Austin

eDiscovery Case Law: No Kleen Sweep for Technology Assisted Review
 

For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered.  Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America.  However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Background and Debate Regarding Search Approach

On February 21, the plaintiffs asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as "content-based advanced analytics," or CBAA) in their production of documents for discovery purposes.

In their filing, the plaintiffs claimed that “[t]he large disparity between the effectiveness of [the computer-assisted coding] methodology and Boolean keyword search methodology demonstrates that Defendants cannot establish that their proposed [keyword] search methodology is reasonable and adequate as they are required.”  Citing studies conducted between 1994 and 2011 claimed to demonstrate the superiority of computer-assisted review over keyword approaches, the plaintiffs claimed that computer-assisted coding retrieved for production “70 percent (worst case) of responsive documents rather than no more than 24 percent (best case) for Defendants’ Boolean, keyword search.”

In their response, the defendants contended that the plaintiffs "provided no legitimate reason that this Court should deviate here from reliable, recognized, and established discovery practices" in favor of their "unproven" CBAA methods. The defendants also emphasized that they have "tested, independently validated, and implemented a search term methodology that is wholly consistent with the case law around the nation and that more than satisfies the ESI production guidelines endorsed by the Seventh Circuit and the Sedona Conference." Having (according to their briefing) already produced more than one million pages of documents using their search methods, the defendants conveyed outrage that the plaintiffs would ask the court to "establish a new and radically different ESI standard for cases in this District."

Stipulation and Order

After “a substantial number of written submissions and oral presentations to the Court” regarding the search technology issue, “in order to narrow the issues, the parties have reached an agreement that will obviate the need for additional evidentiary hearings on the issue of the technology to be used to search for documents responsive to the First Requests.”  That agreement was memorialized this week in the Stipulation and Order Relating to ESI Search (link to stipulation courtesy of Law.com).  As part of that agreement, the plaintiffs have withdrawn their demand that the defendants apply CBAA to the first production request (referred to in the stipulation as the “First Request Corpus”). 

As for productions beyond the First Request Corpus, the plaintiffs also agreed not to “argue or contend” that the defendants should be required to CBAA or “predictive coding” with respect to any requests for production served on any defendant prior to October 1, 2013.  As for requests for production served after October 1, 2013, it was agreed that the parties would “meet and confer regarding the appropriate search methodology to be used for such newly collected documents”, with the ability for either party to file a motion if they can’t agree.  So, there will be no TAR-based approach in the Kleen case, at least until next October.

So, what do you think?  Does this signal a difficulty in obtaining approval for TAR-based approaches?  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.

eDiscovery Case Law: Pension Committee Precedent Takes One on the Chin
 

In Chin v. Port Authority of New York and New Jersey, No. 10-1904-cv(L), 2012 U.S. App. (2d Cir. July 10, 2012), the Second Circuit Court of Appeals ruled it was within a district court’s discretion not to impose sanctions against a party for its failure to institute a litigation hold.

In its ruling, the appellate court rejected “the notion that a failure to institute a ‘litigation hold’ [at the onset of litigation] constitutes gross negligence per se” and therefore automatically subjects a violating party to sanctions.

The defendant destroyed files in this employment discrimination case relating to its promotion process after a duty to preserve them had attached, but the Second Circuit declined to follow a bright line rule set forth by U.S. District Court Judge Shira Scheindlin of the Southern District of New York in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which considered it to be grossly negligent for a party not to institute a litigation hold at the onset of discovery. The appeals court stated, “Rather, we agree that ‘the better approach is to consider [the failure to adopt good preservation practices] as one factor’ in the determination of whether discovery sanctions should issue.”

With regard to the factors a party must establish for an adverse inference instruction, the court noted:

“[A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

Standing by its own precedent in Residential Funding Corp. v. DeGeorge Financial Corp., the court held that the district court had not abused its discretion:

“[A] finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction…Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were ‘relevant,’ we have repeatedly held that a “case-by-case approach to the failure to produce relevant evidence,” at the discretion of the district court, is appropriate. In this case, the district court concluded that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process and the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.”

So, what do you think?  Should either court have followed the precedent of Pension Committee or was the decision appropriate?  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.

eDiscovery Trends: Cloud Computing – A Lot of Benefit for the Cost
 

An interesting article in The Metropolitan Corporate Counsel provides some useful, well-described benefits of cloud computing for eDiscovery (Cloud Computing And E-Discovery: Maximum Gain, Minimum Cost, written by Miró Cassetta).  The author provides some good analogies to explain the different cloud service models, differences between private and public clouds and the benefits of using a Software-as-a-Service (SaaS) application.  Let’s take a look.

As the author notes, the cloud uses three service models:

  1. Infrastructure as a Service (IaaS): Provides virtualized physical hardware (computers, processing, storage and servers) accessible through the web (e.g., Amazon Web Services providing access to different types of virtualized servers).
  2. Platform as a Service (PaaS): In addition to the infrastructure, it provides a virtual toolkit to allow developers to create software (e.g., Facebook, which enables developers to create apps specific to the its site).
  3. Software as a Service (SaaS): On demand access to a specific application within the infrastructure and platform (e.g., OnDemand®, which happens to be CloudNine Discovery’s linear review application).  The SaaS model is the most common for organizations managing eDiscovery related data in the cloud.

The author uses the “concept of tenancy” to differentiate private clouds (single-tenant, typically used for a company’s internal work) and public clouds (multiple tenants (or clients) sharing space, like an apartment building).  If you’re using an outside provider for cloud services that has other clients, you’re likely using a public cloud.  With regard to security, the author notes the importance of ensuring that your SaaS provider has certain security measures in place and provides a list of questions at the end to ask the provider to understand more.  One of the questions, “How much of the Electronic Discovery Reference Model (EDRM) spectrum does the system encompass?”, should bear further investigation as those who claim end-to-end eDiscovery solutions may not necessarily provide it seamlessly.  On the other hand, if you’re looking for specific EDRM coverage (e.g., a collection or review tool), coverage of those specific components may be all you need.

The author also lists several benefits of the SaaS model, including:

  • Access Anytime, Anywhere: One of the biggest benefits is the ability to access whenever and share with whomever you want.  This supports outside counsel teams in multiple locations, or even sharing with co-counsel firms or experts.
  • Efficient Resource Use: Pooling of resources (storage, memory and network) for multiple clients by the cloud provider yields economies of scale that makes it more affordable and more scalable for all.
  • Accommodation at a Moment’s Notice: SaaS providers are always supporting needs for clients to add data or users, so the process is (or at least should be) seamless.
  • Quick Start-Up: Imagine not having to purchase hardware or software or other infrastructure to get a software application up and running.  SaaS providers already have that in place, they just need to sign you up and get going.  Have you ever set up a Facebook account or used SalesForce.com?  It’s that easy.
  • Transparent Billing: Because SaaS services are billed monthly, the costs are more predictable than the costs associated with in-house solutions.  It’s also a true “pay as you go” model, which means you only pay for what you need, for as long as you need it.
  • Team of Experts: Expertise is expensive.  Just like hardware and software resources, expertise provided by the SaaS provider (necessary to provide great client service and support both day-to-day operations and periodic software and hardware updates) can be pooled among its clients, making it more economical for all.

A link to the article appears at the top of this post.

So, what do you think?  Do you use any SaaS solutions for eDiscovery?  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.

eDiscovery Best Practices: For Successful Predictive Coding, Start Randomly
 

Predictive coding is the hot eDiscovery topic of 2012, with three significant cases (Da Silva Moore v. Publicis Groupe, Global Aerospace v. Landow Aviation and Kleen Products v. Packaging Corp. of America) either approving or considering the use of predictive coding for eDiscovery.  So, how should your organization begin when preparing a collection for predictive coding discovery?  For best results, start randomly.

If that statement seems odd, let me explain. 

Predictive coding is the use of machine learning technologies to categorize an entire collection of documents as responsive or non-responsive, based on human review of only a subset of the document collection.  That subset of the collection is often referred to as the “seed” set of documents.  How the seed set of documents is derived is important to the success of the predictive coding effort.

Random Sampling, It’s Not Just for Searching

When we ran our series of posts (available here, here and here) that discussed the best practices for random sampling to test search results, it’s important to note that searching is not the only eDiscovery activity where sampling a set of documents is a good practice.  It’s also a vitally important step for deriving that seed set of documents upon which the predictive coding software learning decisions will be made.  As is the case with any random sampling methodology, you have to begin by determining the appropriate sample size to represent the collection, based on your desired confidence level and an acceptable margin of error (as noted here).  To ensure that the sample is a proper representative sample of the collection, you must ensure that the sample is performed from the entire collection to be predictively coded.

Given the debate in the above cases regarding the acceptability of the proposed predictive coding approaches (especially Da Silva Moore), it’s important to be prepared to defend your predictive coding approach and conducting a random sample to generate the seed documents is a key step to defensibility of that approach.

Then, once the sample is generated, the next key to success is the use of a subject matter expert (SME) to make responsiveness determinations.  And, it’s important to conduct a sample (there’s that word again!) of the result set after the predictive coding process to determine whether the process achieved a sufficient quality in automatically coding the remainder of the collection.

So, what do you think?  Do you start your predictive coding efforts “randomly”?  You should.  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.

eDiscovery Case Law: More Sanctions for Fry’s Electronics
 

In E.E.O.C. v Fry’s Electronics, Inc., No. C10-1562RSL, 2012 U.S. Dist. (W.D. Wash. July 3, 2012), Washington District Judge Robert S. Lasnik ordered several sanctions against the defendant in this sexual harassment case (including ordering the defendant to pay $100,000 in monetary sanctions and ordering that certain evidence be considered presumptively admissible at trial), but stopped short of entering a default judgment against the defendant.  This ruling came after having previously ordered sanctions against the defendant less than two months earlier.

Prior Sanctions

On May 10, Judge Lasnik granted in part plaintiffs' motion for sanctions in this case, finding that the defendant had spoliated evidence, including data and computer hard drives. In that ruling, Judge Lasnik believed that the prejudicial effect of the spoliation could be counteracted by “(a) instructing the jury that one of the justifications for firing [one of the plaintiffs] was pretextual and (b) allowing plaintiff considerable leeway in arguing what information might have been gleaned from the computer hard drives had they not been destroyed by defendant”. At the time, Judge Lasnik also indicated “some concern regarding the efficacy and thoroughness of defendant's searches” which led to more information being discovered after he ordered a second search.

Additional Spoliation and Misconduct

During a Rule 30(b)(6) deposition held on May 30, the plaintiffs learned for the first time that the accused individual had previously been accused of sexual harassment in 2001 and that an investigation had been conducted. According to Judge Lasnik, the defendant “intentionally withheld this information and the related documents from discovery by raising unfounded objections and ‘negotiating’ a narrowing of the discovery requests” and found the defendant's conduct to be “unfair, unwarranted, unprincipled, and unacceptable”.

Misconduct by the defendants noted by Judge Lasnik also included the redaction of responsive information, “[e]ven after defendant's objections to certain discovery requests were overruled”, as well as production of hundreds of pages of information with the “fallacious argument” that they were relevant to the claims.

Consideration of Default Judgment Sanction

Judge Lasnik noted that it is “once again left to determine whether to strike defendant's answer and enter default judgment against it”, but noted that dismissal is a “harsh sanction” and the following factors must be considered when determining “whether a dispositive sanction is appropriate under either its inherent powers or Rule 37(b): (1) the public's interest in the expeditious resolution of litigation; (2) the Court's need to manage its docket efficiently and effectively; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy in favor of considering cases on the merits; and (5) the availability of less drastic sanctions.”  While finding that the first three factors supported a dispositive sanction, Judge Lasnik ruled against a dispositive sanction in factor 4, indicating that “[t]he public has an interest in a determination of those issues based on the facts, rather than by judicial fiat”.

Lesser Sanctions Ordered

Instead, Judge Lasnik ordered lesser sanctions, indicating that “Defendant's affirmative defenses related to (i) its efforts to prevent and correct harassment in the workplace, (ii) plaintiffs' failure to utilize protective and corrective opportunities provided by defendant, (iii) its good faith and/or privilege to act as it did in this case are STRICKEN.” He also stated that certain documents and testimony related to “other complaints or reports of sexual harassment” at the company were “presumptively admissible at trial”. He also ordered sanctions of $100,000 “to offset the excess costs caused by defendant’s discovery violations, to punish unacceptable behavior, and as a deterrent to future bad conduct” to be split evenly between the two individual plaintiffs, the EEOC and the Court Clerk.

So, what do you think?  Are you surprised that the defendant didn’t receive a default judgment sanction?  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.

eDiscovery Trends: Use of Internet-Based Tools, Predictive Coding, Up in 2012, Says ABA

According to a recently released report from the American Bar Association (ABA), use of Internet-based electronic discovery tools and predictive coding has risen in 2012.  The 2012 ABA Legal Technology Survey Report: Litigation and Courtroom Technology (Volume III) discusses the use of technology related to litigation, ranging from hardware used in the courtroom to technology related to eDiscovery and e-filing. It includes a trend report summarizing this year’s notable results and highlighting changes from previous years.

Statistical Highlights

Here are some of the notable stats from the ABA study:

Use of Internet-based eDiscovery and Litigation Support

  • 44% of attorneys whose firm had handled an eDiscovery case said they had used Internet-based eDiscovery tools (up from 31% in 2011 – a 42% rise in usage);
  • In sole practitioner firms, 33% of attorneys said they had used Internet-based eDiscovery tools whereas nearly 67% of attorneys in large firms (500 or more attorneys) indicated they had used those tools;
  • 35% of attorneys said they had used Internet-based litigation support software (up from 24% in 2011 – a 46% rise in usage).

Use of Desktop-based eDiscovery and Litigation Support

  • Use of Desktop-based eDiscovery rose from 46% to 48% (just a 4% rise in usage) and use of Desktop-based Litigation Support remained the same at 46%.

Use of Predictive Coding Technology

  • 23% of those attorneys said they had used predictive coding technology to process or review ESI (up from 15% in 2011 – a 53% rise in usage);
  • Of the firms that have handled an eDiscovery case, only 5% of sole practitioners and only 6% of firms with less than 10 attorneys indicated they had used predictive coding technology whereas nearly 44% of attorneys in large firms said they used predictive coding.

Outsourcing

  • 44% of attorneys surveyed indicated that they outsourced work to eDiscovery consultants and companies (slightly down from 45% in 2011 – a 2% drop);
  • Outsourcing to computer forensics specialists remained unchanged at 42%, according to the survey;
  • On the other hand, 25% of respondents indicated that they outsource to attorneys in other firms (up from 16% in 2011 – a 56% rise!).  Hmmm…

All percentages rounded.

The 2012 ABA Legal Technology Survey Report is comprised of six volumes, with eDiscovery results discussed in Volume III (link above), which can be purchased from the ABA for $350 (or $300 if you’re an ABA member).  If you’re just interested in the trend report, the cost for that is $55 ($45 for ABA members).

So, what do you think?  Any surprises?  Do those numbers reflect your own usage of the technologies and outsourcing patterns?  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.

eDiscovery Best Practices: Assessing Your Data Before Meet and Confer Shouldn’t Be Expensive
 

So, you’re facing litigation and you need help from an outside provider to “get your ducks in a row” to understand how much data you have, how many documents have hits on key terms and estimate the costs to process, review and produce the data so that you’re in the best position to negotiate appropriate terms at the Rule 26(f) conference (aka, meet and confer).  But, how much does it cost to do all that?  It shouldn’t be expensive.  In fact, it could even be free.

Metadata Inventory

Once you’ve collected data from your custodians, it’s important to understand how much data you have for each custodian and how much data is stored on each media collected.  You should also be able to break the collection down by file type and by date range.  A provider should be able to process the data and provide a metadata inventory of the collected electronically stored information (ESI) that enables the inventory to be queried by:

  • Data source (hard drive, folder, or custodian)
  • Folder names and sizes
  • File names and sizes
  • Volume by file type
  • Date created and last date modified

When this done prior to the Rule 26(f) conference, it enables your legal team to intelligently negotiate at the conference by understanding the potential volume (and therefore potential cost) of including or excluding certain custodians, document types, or date ranges in the discovery order. 

Word Index of the Collection

Want to get a sense of how many documents mention each of the key players in the case?  Or, how many mention the key issues?  After a simple index of the data, a provider should be able to at least provide a consolidated report of all the words (not including stop words, of course), from all sources that includes number of occurrences for each word in the collected ESI (at least for files that contain embedded text).  This initial index won’t catch everything – image-only files and exception (e.g., corrupted or password protected) files won’t be included – but it will enable your legal team to intelligently negotiate at the meet and confer by understanding the potential volume (and therefore potential cost) of including or excluding certain key words in the discovery order.

eDiscovery Budget Worksheet

Loading the metadata inventory into an eDiscovery budget worksheet that includes standard performance data (such as document review production statistics) and projected billing rates and costs can provide a working eDiscovery project budget projection for the case.  This projection can enable your legal team to advise their client of projected costs of the case, negotiate cost sharing or cost burden arguments in the meet and confer, and create a better discovery production strategy.

It shouldn’t be expensive to prepare these items to develop an initial assessment of the case to prepare for the Rule 26(f) conference.  In fact, the company that I work for, CloudNine Discovery, provides these services for free.  But, regardless who you use, it’s important to assess your data before the meet and confer to enable your legal team to understand the potential costs and risks associated with the case and negotiate the best possible approach for your client.

So, what do you think?  What analysis and data assessment do you perform prior to the meet and confer?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S.: No ducks 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.

eDiscovery Case Law: Major Bank and Law Firm Sanctioned for “Pattern of Discovery Abuses”
 

As noted in ABA Journal, Greenberg Traurig and its client, TD Bank, have received sanctions in Coquina Investments v. Rothstein, 10-cv-60786, U.S. District Court, Southern District of Florida for a “pattern of discovery abuses before, during, and after trial”.  As U.S. District Judge Marcia Cooke noted, “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.  However, unlike a Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly.”

While Judge Cooke sanctioned Greenberg Traurig, she determined that sanctions were not warranted against the individual attorneys, despite the fact that their “handling of this case left much to be desired.”  However, she noted that while “they certainly acted with negligence”, “[t]he evidence does not support a finding that any of them acted willfully or in bad faith.”

Texas-based Coquina Investors won a $67 million verdict in January for aiding and abetting fraud by then-attorney Scott Rothstein in a civil damages suit brought by investors.  It’s the first civil jury verdict in this country against a bank for aiding and abetting fraud.  Judge Cooke did find that TD Bank "willfully concealed relevant evidence from its trial counsel” and “that TD Bank "had actual knowledge of Rothstein’s fraud”.  Both parties were required to pay plaintiff’s legal fees and pursuing the sanctions.  Rothstein has been disbarred and is serving a 50-year prison sentence in a secret location under the federal witness protection program.

According to the Miami Herald, two documents were primarily at issue in the sanctions motion:

  • “Customer Due Diligence” form: This document was redacted by the bank to conceal that the bank had put a "high risk" label on Rothstein's law firm concerning its potential for money laundering. That information was not blacked out when the same document was subsequently produced in a related case against the bank, however, alerting the plaintiffs' legal team to the alteration.  The bank contended at trial it had not considered Rothstein's firm high-risk, and hence was not required to monitor his accounts closely.
  • “Standard Investigative Protocol”: This document detailed the bank's policy on knowing its customers and preventing money laundering.  TD Bank claimed prior to trial that the document didn’t exist.  It was produced months later and the delay was apparently was due to a mistake on the part of a Greenberg lawyer who is no longer with the firm.

A spokeswoman for the law firm said it will comply with the judge's decision. “We regret the deficiencies that gave rise to this order,” she wrote in an email.  However, TD Bank plans to appeal both the sanctions ruling and the underlying $67 million jury award, a spokeswoman wrote in an email.

So, what do you think?  Are you surprised that the individual attorneys weren’t sanctioned, as well?  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.

eDiscovery Case Law: No Sanctions When You Can’t Prove Evidence Was Destroyed
 

In Omogbehin v. Cino, No. 11-2223, 2012 U.S. App. (3d Cir. June 20, 2012), the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

In this employment discrimination case, the plaintiff (Stephen Omogbehin) filed a motion for adverse inference jury instructions with the belief that the defendants destroyed or suppressed certain eMails during discovery. Unfortunately for the plaintiff, he not only failed to demonstrate evidence of spoliation, he also could not even prove that the alleged eMails existed. Two of the defendants claimed no such eMails existed, with support from their IT experts, who explained that all eMails from the relevant time frame had been produced.

Four-Prong Test

The appellate court upheld the rulings by the district judge and magistrate judge, who had used the four-prong test to determine whether spoliation occurred, requiring the plaintiff to demonstrate that “[1] the evidence was in the party’s control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the party.” Only after establishing that spoliation occurred, would a separate analysis be conducted to determine whether sanctions are appropriate. To obtain an adverse inference instruction, a party must show “there has been an actual suppression or withholding of the evidence.”

The Magistrate Judge denied Omogbehin's motion because he had failed to show that the emails were actually sent or received, let alone that that any spoliation occurred, much less that it was done intentionally.  The District Court affirmed the Magistrate Judge, concluding that Omogbehin had not satisfied his burden of establishing facts from which the court could "at least infer that the evidence existed in the first place."

The appellate court noted that the defendants “produced the information and documents that Omogbehin requested; that they did not contain what he had hoped or expected is not sufficient to satisfy his burden. He must provide some proof that what he seeks actually existed, but failed to do so.”

Compare to Zubulake

This is an interesting contrast to the Zubulake case, which was also an employment discrimination case.  In that case, Laura Zubulake preserved and produced her own copies of emails that the defendants failed to produce (at least initially) which led to the court’s decision to order discovery from backup tapes that led to additional productions of relevant emails.  Due to the fact that tapes from some key individuals were missing and that the other tapes had led to discovery of additional relevant emails, the court ultimately concluded that the destruction of those tapes resulted in spoliation of relevant evidence.  Zubulake was able to prove a pattern of spoliation that Omogbehin was unable to prove.

So, what do you think?  Have you ever pursued, or been forced to defendant against, spoliation sanctions?  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.

eDiscovery Trends: The Growth of eDiscovery is Transparent
 

With data in the world doubling every two years or so and the variety of issues that organizations need to address to manage that data from an eDiscovery standpoint, it would probably surprise none of you that the eDiscovery market is growing.  But, do you know how quickly the market is growing?

According to a new market report published by Transparency Market Research (and reported by BetaNews), the global eDiscovery market is expected to rise 275% from 2010 to 2017.  Their report eDiscovery (Software and Service) Market – Global Scenario, Trends, Industry Analysis, Size, Share and Forecast, 2010 – 2017 indicates that the global eDiscovery market was worth $3.6 billion in 2010 and is expected to reach $9.9 billion by 2017, growing at a Compound Annual Growth Rate (CAGR) of 15.4% during that time.  Here are some other noteworthy stats that they report and forecast:

  • The U.S. portion of the eDiscovery market was valued at $3.0 billion in 2010, and is estimated to grow at a CAGR of 13.3% from 2010 to 2017 to reach $7.2 billion by 2017 (240% total growth);
  • The eDiscovery market in the rest of the world was valued at $600 million in 2010, and is estimated to grow at a CAGR of 23.2% from 2010 to 2017 to reach $2.7 billion by 2017 (450% total growth – wow!);
  • Not surprisingly, the U.S. is expected to continue to be the leader in terms of revenue with 73% of global eDiscovery market share in 2017;
  • The report also breaks the market into software based eDiscovery and services based eDiscovery, with the global software based eDiscovery market valued at $1.1 billion in 2010 and expected to grow at a CAGR of 11.5% to reach $2.5 billion by 2017 (227% total growth) and the global services based eDiscovery market valued at $2.5 billion in 2010 and expected to grow at a CAGR of 17.0% to reach $7.4 billion by 2017 (296% total growth).

According to the report, key factors driving the global eDiscovery market include “increasing adoption of predictive coding, growing risk mitigation activities in organizations, increase in criminal prosecutions and civil litigation and growth of record management across various industries”.  They predict that “[i]n the next five years, the e-discovery industry growth will get further support from increasing automatic enterprise information archiving applications, growth in multi-media search for sound and visual data, next generation technology growth for cloud computing i.e. virtualization and increasing involvement of organizations in the social media space.”

The report also discusses topics such as pricing trends, competitor analysis, growth drivers, opportunities and inhibitors and provides company profiles of several big players in the industry.  The 96 page report is available in a single user license for $4,395 up to a corporate license for $10,395.

So, what do you think?  Do those growth numbers surprise 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.