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Doug Austin

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

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

Case Background

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

Judge’s Ruling

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

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

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

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

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

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

So, what do you think?  Does the ruling open the door for the defendants to file their own motion for sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

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

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

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

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

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

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

So, what do you think?  Do you feel like you understand how to select the form of production that is the most informative and most cost-effective for your cases?  If not, please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

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

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

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

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

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

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

Stay healthy out there!

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

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

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Denies Southwest Airlines’ Motion for Rule 11 Sanctions Against Plaintiff: eDiscovery Case Law

In Houston v. Southwest Airlines, No. 3:17-cv-02610-N-BT (N.D. Tex. Feb. 18, 2020), Texas Magistrate Judge Rebecca Rutherford “decline[d] to impose sanctions under either Rule 11 or its inherent powers” against the plaintiff for statements she made regarding her response to the defendant’s interrogatories and requests for admission in her summary judgment response.

Case Background

The defendant served interrogatories and requests for admission on the plaintiff, and claimed that she did not respond. In her summary judgment response, however, the plaintiff asserted that she responded to the defendant’s interrogatories and requests for admission via email on April 20, 2019, and even followed up with counsel on May 1, 2019, to confirm defendant’s receipt of her answers.  The defendant objected that the plaintiff’s statements were “materially false” and contended that she made them for the improper purpose of avoiding summary judgment. As a result, the defendant sought sanctions under Fed. R. Civ. P. 11 and the Court’s inherent power in the form of an order: (1) striking the plaintiff’s summary judgment response without leave to amend; (2) granting the defendant’s Motion for Summary Judgment; and (3) requiring that the plaintiff pay the defendant $1,015.00 in attorney’s fees.  The plaintiff did not respond to the defendant’s Motion for Sanctions.

Judge’s Ruling

Judge Rutherford began her analysis by noting that “Federal Rule of Civil Procedure 11 authorizes a court to impose sanctions on a party or an attorney who files a pleading for an improper purpose, such as to harass the opposing party, delay the proceedings, or increase the cost of litigation.”  She also noted that “[c]ourts also have inherent authority to impose sanctions on attorneys when they find that an attorney has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons’”, while also noting that “[c]ourts ‘exercise caution’ in invoking their inherent power and should ‘ordinarily’ rely on a rule or statute rather than their inherent power.”

In this case, Judge Rutherford stated: “Here, the Court declines to impose sanctions under either Rule 11 or its inherent powers. The record in this case does not clearly establish that Houston’s assertions that she responded to Southwest’s discovery requests were made for an improper purpose. Indeed, there is no evidence in the record regarding Houston’s intent. She may have honestly, but mistakenly, believed she properly answered Southwest’s discovery requests. Sanctions under the Court’s inherent authority are inappropriate for the same reason. Accordingly, Southwest’s Motion for Sanctions is DENIED.”

So, what do you think?  Should the court have expected some documentation from the plaintiff to support her claim that she responded via email to avoid Rule 11 sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Grants Plaintiff’s Motion to Compel Discovery in Loan Dispute: eDiscovery Case Law

In Grande v. U.S. Bank Nat’l Ass’n, No. C19-333 MJP (W.D. Wash. Feb. 20, 2020), Washington District Judge Marsha J. Pechman granted the plaintiffs’ motion to compel discovery, finding the policies requested were “relevant under the broad civil discovery standard” and that the defendants “ha[d] not demonstrated that the policies are confidential, proprietary, or trade secrets”.  Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion.

Case Background

In this case involving the plaintiffs’ allegations that the defendants breached a loan agreement (and violated several laws), the plaintiffs served written discovery on the defendants in July 2019 – to which the defendants responded in September 2019 with a production that the plaintiffs described as “completely deficient.”  The Parties held a discovery conference in October and the defendants served amended responses several weeks later, which the plaintiffs indexed and determined that large numbers were duplicative and the defendants’ production remained deficient.  After the plaintiffs drafted a Request for a Joint Submission to the Court pursuant to Local Rule 37, seeking assistance in resolving the discovery disputes, the defendants’ attorney declined to use the joint submission but claimed that the document provided him with “additional information” that clarified the alleged discovery deficiencies and asked for plaintiffs’ counsel to “work with him” to resolve the discovery dispute.

The plaintiffs held another discovery conference in November 2019 and the defendants agreed to supplement production with additional documents totaling 1,000 pages, voice recordings of four phone calls made by the Plaintiffs to Nationstar, a full life of loan history, and communications that had not been previously produced, all before November 28.  The defendants produced the 1,000 pages but none of the other material, with no explanation.  On January 11, 2020 the plaintiffs filed a Motion to Compel, seeking complete responses to a dozen Interrogatories and Requests for Production, as well as attorney’s fees.  Several weeks later, the defendants produced additional documents, a privilege log, and supplemental discovery responses, but still did not produce documents responsive to Request for Production No. 17.  The defendants argued that the loan modification guidelines requested in that request were not relevant and confidential, proprietary, and trade secrets.

Judge’s Ruling

With regard to the plaintiffs’ motion to compel and the defendants arguments, Judge Pechman stated: “First, the requested documents are relevant under the broad civil discovery standard, which allows litigants to ‘obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.’…Here, Plaintiffs contend that documents responsive to this request provide ‘information about the policies, processes, and procedures Defendants used to make various decisions regarding the Grandes’ loan modification application.’…Where Plaintiffs allege that Defendants’ evasive, shifting explanations for denying their loan modification were bad faith attempts to avoid their obligations, comparing Defendants’ policies to their behavior is relevant to Plaintiffs’ claims.”

Continuing, Judge Pechman stated: “Second, Defendants have not demonstrated that the policies are confidential, proprietary, or trade secrets… Here, Defendants have not moved for a protective order or listed the documents on a privilege log…Nor have they explained how these policies are trade secrets that give them a competitive advantage over competitors… Further, the only two cases cited by Defendants concern a third-party subpoena where the movant failed to demonstrate relevance and a case concerning a motion for a protective order, neither of which support Defendants’ position… Because the Defendants here have not described any harm that would result from producing the guidelines and have not sought a protective order, the Court declines to find the documents so confidential that they cannot be produced. Defendants must therefore produce all documents responsive to Plaintiffs’ Request for Production No. 17 within seven days of the date of this Order.”

Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion, stating: “Here, Plaintiffs brought this Motion after several good faith attempts to obtain the requested discovery…and nothing before the Court suggests that Defendants’ delay was justified or that an award of expenses would be unjust. To the contrary, Defendants’ substantial delay in responding to the discovery requests has delayed the trial in this matter…and necessitated the present Motion”.

So, what do you think?  Was the court justified in granting the request for attorney’s fees or should it have been more patient since the defendants continued to supplement their production?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

By the way, there was some confusion about the list of EDRM Global Advisory Council members that I initially posted on Friday.  I had thought that was the entire list, but it was only a supplemental list to the list of Global Advisory Council members announced earlier this year.  I have updated my post to reflect the entire list of members — click here to view the post with the entire list this time.

Case opinion link courtesy of eDiscovery Assistant, which now is directly to the eDA site, enabling you to search within the case and see related cases (with eDA subscription).

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.

EDRM Announces New Global Advisory Council: eDiscovery Trends

After announcing five new projects last week (which we covered here), EDRM is back with another announcement this week, announcing its complete 2020 Global Advisory Council!  And, it’s an impressive list of experts and thought leaders!  And, I get to be on it too!  ;o)

Robert Keeling, partner at Sidley Austin LLP, chairs the council and those holding special advisory positions are David Greetham, e-discovery business unit leader, Ricoh USA and executive advisor to EDRM and George Socha, managing director at BDO, and Tom Gelbmann, consultant, as founder advisors. Craig Ball, president of Craig D. Ball, P.C., serves as general counsel, and David Cohen, partner, Reed Smith, LLP, serves as chair of the project trustees.

“The EDRM leadership team has put together a truly global, diverse and multidisciplinary group of experts to assist in managing EDRM’s continued industry leadership,” said Greetham in EDRM’s announcement here. “I look forward to collaborating with this team of global leaders and addressing the challenges of the next frontier.”

Here’s a list of the members of the 2020 Global Advisory Council for EDRM:

  • Judge Xavier Rodriguez, US district judge, WD-TX, US
  • Judge Gary Jones, federal magistrate, US ND FL (ret.), US
  • Ron Hedges, senior counsel, Dentons, federal magistrate, US NJ (ret.), US
  • Farrah Pepper, chief legal innovation counsel, Marsh & McLennan Companies, US
  • Eric Lieber, former director of legal operations and litigation support, Toyota Motors NA, US
  • Melinda Vaughn, associate director and marketing manager, Bolch Judicial Institute of Duke Law School, US
  • Richard Spenner, SVP, head of legal and compliance operations, head of enterprise litigation at Lincoln Financial Group, US
  • Jennifer Coleman, shareholder, Hopkins & Carley, US
  • Avi Benayoun, shareholder, Greenberg Traurig, US
  • Brad Harris, VP of product, Hanzo, US
  • Tim Opsitnick, EVP and general counsel, TCDI, US
  • Michael Hamilton, director of marketing, Exterro, US
  • Vikram Masson, VP of strategic accounts, UnitedLex, US
  • Ben Barnett, partner, Dechert, US
  • Constantine Pappas, senior manager, Relativity, US
  • Johannes Scholtes, chief strategy officer, ZyLAB, the Netherlands
  • Maura Grossman, research professor, director of Women in Computer Science, University of Waterloo and e-discovery lawyer, Canada
  • Andrew Haslam, eDisclosure project manager, Squire Patton Boggs, UK
  • Tara Emory, director of consulting, Driven, Inc., US
  • Debbie Reynolds, CEO and chief data privacy officer, Debbie Reynolds Consulting, US
  • Sheila Grela, litigation paralegal, Procopio, Cory, Hargreaves & Savitch, LLC, US
  • Caroline Sweeney, director of knowledge management and innovation, Dorsey & Whitney, US
  • Ilse Grobler, general counsel and chief administrative officer, Lextrado and Cyanre, South Africa
  • Bill Hamilton, executive director, UF Law E-Discovery Project and ICAIR, US
  • Suzanne Clark, discovery counsel, eDiscovery CoCounsel, pllc, US
  • Robin Stewart, partner and chair of e-discovery practice group, Kutak Rock, US
  • John Tredennick, founder, Merlin Legal Open Source Foundation, US
  • Scott Petz, member, Dickinson Wright PLLC, US
  • Ian Campbell, president/CEO, iCONECT, Canada
  • Shannon Bales, litigation support, Munger Tolles & Olsen, US
  • Amie Taal, consultant, Stratagem Tech Solutions Ltd., UK
  • Lilith Bat-Leah, director of data science, Fronteo USA
  • Eric Mandel, consultant, Driven, Inc., US
  • TracyAnn Eggen, managing e-discovery solutions for enterprise-wide litigation and investigation, Dignity Health, US
  • Jessica Robinson, CEO, PurePoint International, US
  • Inés Rubio Alcalá-Galiano, head of information management and incident response, British Standards Institute, Ireland
  • Beth Patterson, founder/consultant, ESPConnect, Australia
  • Chris Dale, founder, eDisclosure Information Project, UK
  • Crystal O’Donnell, CEO, Heuristica Discovery Counsel, Canada
  • Judge James Francis IV, mediator, arbitrator, JAMS, US
  • Judge J. Michelle Childs, US District SC
  • Judge Andrew Peck (ret.), senior counsel, DLA Piper US
  • John Pappas, consultant, OpenText, US
  • Cash Butler, founder, ClariLegal, US
  • Jonathan Hiroshi Rossi, founder, The CJK Group and Saya University, US & Japan
  • Amy Juers, MBA, CEO, Edge Legal Marketing, US
  • Ralph Losey, partner, Jackson Lewis, US
  • Bill Speros, principal, William Speros, US
  • Eric Sedwick, head of eDiscovery/Info Gov, TIAA Bank, US
  • Bob Lorum, CMO, Xact Data Discovery, US
  • Pavan Kotha, eDiscovery lead, Clayton Utz, Australia
  • Martin Nikel, eDiscovery & Investigations, Switzerland
  • Eloy Rizzo Neto, partner, Demarest Advogados, Brazil & Latin America
  • Aliya Fathima, senior forensics, KPMG, India
  • Judy Selby, partner, Hinshaw & Culbertson LLP, US
  • Tiana Van Dyk, director of client solutions, EPIQ, Canada
  • Phil Verdelho, senior IT, eDiscovery, operations & services director, UBS, US
  • Shahaf Rozanski, head of private sector unit, Cellebrite, Israel
  • Deborah Spellen, VP eDiscovery, Info Gov, JPMorgan Chase & Co., US
  • Jason Velasco, consultant, US
  • Doug Austin, VP of professional services, CloudNine, US
  • Doug Kaminski, chief revenue officer, Cobra Legal Solutions, US
  • Will O’Brien, director cybersecurity & forensics, PwC, Ireland
  • Antonio Pooe, partner, LexTrado & Cyanre, South Africa
  • Paula Fearon, head of project services, McCann FitzGerald, Ireland
  • Cat Casey, chief innovation officer, DISCO, US
  • Marnie Carter, head of eDiscovery, Starwood Property Trust, US
  • David Yerich, director of eDiscovery, UnitedHealth Group, US
  • Dennis Kennedy, president & general counsel, Dennis Kennedy Advisory Services, LLC, US
  • Jay Yelton, partner, Warner Norcross + Judd, LLP, US
  • Martin Tully, partner & co-founder, Actuate Law LLC, US

Needless to say, I’m honored to be included in such an impressive group of legal and technology professionals and very excited to participate in EDRM this year!  As noted earlier this week, the EDRM Summit/Workshop 2020 will be held at Duke University School of Law, June 24-26.  Here’s a link to more information about that event.

With two announcements from EDRM and an additional announcement from The Sedona Conference this week, these two organizations are making my life easier by giving me topics to cover!  More announcements please! ;o)

So, what do you think?  Are you interested in participating in EDRM?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Two Out of Three Companies Haven’t Reviewed Their Breach Preparedness Plans: Cybersecurity Trends

The singer Meat Loaf (real name Marvin Lee Aday) had a song once called Two Out of Three Ain’t Bad. Well, in this case, it is.  According to a new study, many companies haven’t updated their data breach plans since developing them, report a lack of adequate employee training on data protection, and still haven’t figured out how to guard cloud services and mobile devices.

As reported by Legaltech® News (Two Out of Three Companies Haven’t Reviewed Their Breach Preparedness Plans, Study Says, written by Sue Reisinger), a study of global companies also found that just over half of professionals believed their C-suite executives knew the company’s plan to deal with a breach.  The “Seventh Annual Study: Is Your Company Ready for a Big Data Breach?” was sponsored by Experian Data Breach Resolution and conducted by Ponemon Institute.

“I was surprised that two out of three respondents said they haven’t reviewed or updated their data breach preparedness plans,” said Michael Bruemmer, vice president of data breach resolution and consumer protection at Experian. “Preparedness plans can’t be a binder on a shelf that are not active and fluid plans. They should be reviewed and updated at least on a yearly basis.”

Bruemmer said a main takeaway from the report for general counsel is that “their clients are not preparing enough by practicing [data breach drills] and updating their response plans. They should work with clients to ensure this piece is a well-oiled machine.”

The study showed that 55% of respondents believed their C-suite executives knew the company’s plan to deal with a breach, but Bruemmer said the number should be higher. He recommended that general counsel make sure the CEO and C-suite “are knowledgeable and prepared for a data breach response. We have witnessed many leaders ill-equipped to handle the consumer response after a data breach.”

Here are some other notable study findings:

  • About 36% of respondents reported their organization had a ransomware attack last year with only 20% feeling confident in their ability to deal with it. The average ransom was $6,128 and 68% of respondents say it was paid.
  • Spear phishing attacks are pervasive, with 69% of respondents reporting one or more attacks and 67% saying the negative consequences of these attacks were very significant. Bruemmer called these threats “rudimentary at this point, and … a strong employee training program against these attacks [is] a must.”
  • Some 68% of respondents said their company has put more resources toward security technologies to detect and respond quickly to a breach. Still data breaches are increasing, with significantly more organizations reporting data breaches than ever before. “Consequently, confidence levels among executives to thwart spear phishing and other common attacks have declined,” according to the report.
  • More organizations at 54% report they have a high ability to comply with the European Union’s General Data Protection Regulation, compared with only 36% a year ago.

You can download a copy of the study from the Experian web site here.

So, what do you think?  Are you surprised by any of these findings?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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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.

EDRM Announces Five New Projects: eDiscovery Best Practices

Did anybody doubt that EDRM under the leadership of Mary Mack and Kaylee Walstad was going to be doing BIG things?  If you did doubt it, here’s an announcement that signals that EDRM will be busy creating and improving frameworks, resources and standards within the eDiscovery community.

Last week, EDRM announced five new projects and is seeking new contributors for them.  They are:

Data Sets: This new project is being championed by Cash Butler, founder of Clarilegal, and is seeking project participants. “Everyone still tests and demonstrates with the very old and familiar data set that is comprised primarily of Enron email and attachment data,” claims Cash Butler. “A new modern data set needs to be created that is focused on modern data types as well as email. Slack, Snapchat, Instagram, text messaging, GPS and many other data types that are needed for testing and demonstrating how they process and present in a useful way. In addition, to creating the new data set we will also look to form a framework for community members to easily add, curate and update the data set to stay current.”

One word: Hallelujah!  We’ve needed new up-to-date data sets for years to replace the old Enron set, so I’m hopeful this team will make it happen.

Processing Specifications: John Tredennick, founder of Merlin Legal Open Source Foundation is championing this project with the help of co-trustees Craig Ball, president, Craig D. Ball P.C. (who recently created a processing primer) and Jeffrey Wolff, director of eDiscovery services and principal architect, ZyLAB. The Processing Specifications project will run in parallel with the Merlin Foundation’s programming project for processing.

Data Mapping: Eoghan Kenny, associate, senior manager data projects and Rachel McAdams (no, not her), data projects, at A & L Goodbody, Ireland are championing this project, which the need has arisen due to the new SEAR Act (senior executive accountability regime) to help provide frameworks around who is responsible for what data and where it resides. “The importance of data mapping has grown enormously in Europe – not just for GDPR and investigation purposes, but also to help organizations deal with the increasingly active regulatory environment,” says Kenny. “However, most of our clients struggle with data mapping as it is a new concept to most organizations, with no clear business owner, that often sits in limbo between the “business” and “IT”! The goals of this project are to build frameworks for data mapping exercises, and provide clear guidelines on what the process should look like, because the better an organization understands its data, the cheaper it is to comply with any discovery or investigation obligations.”

State eDiscovery Rules: Suzanne Clark, discovery counsel at eDiscovery CoCounsel and Janice Yates, senior e-discovery consultant at Prism Litigation are co-championing this project and how the State Rules relate to the eDiscovery Federal rules in place. The vision for the State eDiscovery Rules project is to provide a starting point for attorneys to quickly reference the rules in different states and compare and contrast to the federal rules with the various state rules relating to eDiscovery. For example, if an attorney is involved with a case in a state where they are not accustomed to practicing, this EDRM resource will allow them to quickly get up to speed on that state’s rules, where they differ and where they align with the federal rules. “The project work happening at the EDRM is impressive,” says Suzanne Clark. “The time and talent that the project leads and participants donate to the cause of advancing eDiscovery knowledge and good practices will surely serve to advance the industry and legal practice in the discovery realm.”  The project will start with Florida and Michigan and are looking for more contributors from other states.

I look forward to this as we need an up to date resource here – I’m not sure that the ones I’ve covered in the past are being actively updated.

Pro Bono: This project was just launched and has had an overwhelming reach out from people in every area, attorneys, paralegals (and associations), litigation support professional, service providers, platforms, corporations and those in need. We are still seeking assistance as the need for access to justice is great. Stewarded by BDO director, George Socha and HB Gordon, eDiscovery manager for the Vanguard Group, the Pro Bono project will create subgroups to accelerate providing eDiscovery services to those in need.

As the announcement notes, projects, both ongoing and newly initiated, will be advanced at the EDRM Summit/Workshop 2020 at Duke University School of Law, June 24-26. I’ll have more to say about that as we get closer to it, but it certainly sounds like it will be very busy!  I’m certainly planning to be there!

So, what do you think?  Are you interested in participating in EDRM?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Top Ten Tips for Working with eDiscovery: eDiscovery Best Practices

I stumbled across a post in our blog that Tom O’Connor did over a year ago to conclude his series titled Will Lawyers Ever Embrace Technology?  As usual, Tom did a great job and, in this post, he offered his top ten tips for working with eDiscovery.  Tom provided a top ten list terrific enough to make David Letterman proud, but I thought the list could use some additions – in the form of links to resources for the items.  Here goes!

As a reminder, here are the top ten tips from Tom’s post:

  1. Read the Rules
  2. Read the Decisions
  3. Know the Terms
  4. Know Where Your Data Is
  5. Talk to The IT Department
  6. Talk to The Records Management People
  7. Make a Records Management Policy
  8. Make A Litigation Hold Policy
  9. Enforce the Litigation Hold Policy
  10. Meet with Your Client’s Inside Counsel

Let’s take them one (or sometimes two) at a time.

Read the Rules: As Tom notes, the Federal Rules of Civil Procedure (FRCP) lay out the framework for your obligations in handling eDiscovery, but many states have rules that may differ from the FRCP.  Not only that, but the FRCP is comprised of a lot of rules which don’t necessarily have to do with eDiscovery.  So, which ones do you need to know?  There are two notable Rules updates that have significant eDiscovery impact: the 2006 and 2015 updates.  Fortunately, we covered them both in our webcast titled What Every Attorney Should Know About eDiscovery in 2017, which (as you can tell by the title) is three years old now (but still relevant for this topic).  You can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.  As for states rules, K&L Gates has a listing of states that have enacted eDiscovery rules (not all of them have), so you can check your state (and other states) here.

Read the Decisions: To find decisions related to eDiscovery, you can find plenty of those right here on the eDiscovery Daily blog – for free!  We’re up to 734 lifetime case law related posts, covering 566 unique cases since our inception back in 2010.  You can see them all here or wind them down year by year here.  If you want even more decisions (1,500 to 2,000 a year, not to mention other terrific resources), you can find those at our go to site for case law – eDiscovery Assistant.

Know the Terms: Tom notes in his post the importance of knowing the terms and even provides a terrific resource – The Sedona Conference – for a great terms list, which was just updated and we covered it and how to get it here!

Know Where Your Data Is: When it comes to knowing where your data is, a data map comes in really handy.  And, with GDPR and other factors emphasizing data privacy, that’s more important than ever.  Here are several templates to get started.

Talk to The IT Department: Tom says “You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.”  Knowing the terms and understanding data maps (see previous two paragraphs) will help bridge the communication gap and help here too.

Talk to the Records Management People and Make a Records Management Policy: Records Management is a term that has been around for a long time.  A more recent term that has become synonymous is Information Governance.  eDiscovery Daily has over 200 posts related to Information Governance, including this seven blog post series from Tom here.  Enjoy!

Make A Litigation Hold Policy and Enforce the Litigation Hold Policy: We’ve covered the topic of litigation holds several times as well during the almost 9 1/2 years of the blog, including these two posts (recently updated) where we discuss several things you need to consider when implementing your own litigation hold.  It’s also worth noting that a platform that automates tracking litigation holds, like CloudNine Review™ (shameless plug warning!), can make it easier.

Meet with Your Client’s Inside Counsel: With all of the info you learned above, you’re well equipped to (as Tom puts it) “discuss all of the above”.  One more thing that can help is understanding topics that can be covered during the meet and confer that will benefit both you and your client.  Here’s a webcast that will help – again, you can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.

One more thing that Tom notes in his post is that “eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage” and that’s very true.  Certainly, that’s true at CloudNine, where, in addition to our Review product mentioned above, we also have a product that collects data from O365 and One Drive (CloudNine Collection Manager™), an Early Data Assessment platform (CloudNine Explore™), a processing and production platform known as the “swiss-army knife of eDiscovery” (CloudNine LAW™) and a tried and true desktop review platform (CloudNine Concordance®).  There are as many workflows as there are organizations conducting eDiscovery and getting the most out of software products available from CloudNine or other providers to maximize your own workflow is key to succeeding at eDiscovery.  Work with your software provider (whoever they are) to enable them to help maximize your workflow.  Help us help you!  :o)

So, what do you think?  Are you familiar with all of these resources?  If not, now you can be!  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

The Sedona Conference Has an Updated Glossary (Again): eDiscovery Best Practices

Just when I need a topic for a Monday, The Sedona Conference® (TSC) delivers!  Last Friday, TSC and its Technology Resource Panel announced the publication of The Sedona Conference Glossary, eDiscovery & Digital Information Management, Fifth Edition.

This Fifth Edition, encompassing 130 pages and nearly 800 definitions, reflects the rapid expansion of privacy and data security laws and regulations. It incorporates new definitions related to Big Data, GDPR, and the science of Technology-Assisted Review; deletes outdated terms; and updates others in response to evolving technology and case law.  From “30(b)(6)” and “Ablate”, which is to burn laser-readable “pits” into the recorded layer of optical disks, DVD-ROMs and CD-ROMs (obvy!) to “Zombie Cookies” and “Zone OCR”, this Glossary covers it all.

Do you know what “Basic Input Output System (BIOS)” is?  How about a “Data Lake”?  Or the Federal Information Processing Standards (FIPS)?  What about “Harvesting”? (which can be done any time of year, by the way).  Do you know for which term “Make-Available Production” is synonymous?  Do you know what “Sentiment Analysis” is?  No, it has nothing to do with studying romantic movies. Do you know what “Thread Suppression” is?  Those, and many more, definitions are in this Glossary.

As I noted above, this is the Fifth(!) edition of the glossary.  The original was all the way back in May 2005 and there have been subsequent editions in December 2007, September 2010 and April 2014.

You can download a copy of the Glossary here (login required, which is free).

So, what do you think?  Are you up on your electronic discovery terms?  If not, now you can be!  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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