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Doug Austin

Another Case Where Intent to Deprive is Put in the Hands of the Jury: eDiscovery Case Law

In Woods v. Scissons, No. CV-17-08038-PCT-GMS (D. Ariz. Aug. 14, 2019), Arizona Chief District Judge G. Murray Snow granted in part and denied in part the plaintiff’s motion for sanctions for spoliation of video footage of an arrest incident involving the plaintiff and the defendant (a police officer with the Prescott Police Department), ruling that non-party City of Prescott violated a duty to preserve evidence of the alleged incident, but that the question of intent should be submitted to the jury to determine appropriate sanctions.

Case Background

In this claim of excessive force against the defendant arising out of the plaintiff’s arrest in June 2016, the plaintiff alleged that after the defendant placed him in handcuffs, he struck the plaintiff several times while he lay face-down on the pavement, resulting in a fracture to his lower back which left him in severe pain and will likely require future surgery to repair.  Several officers arrived on the scene during the course of the arrest.  After the Prescott Police Department Review Board determined that no “criminal, civil or Department Policy violations” had occurred during the arrest, the plaintiff filed this action in February 2017.  Subsequently, the plaintiff filed a motion for spoliation sanctions, arguing that non-party City of Prescott violated a duty to preserve evidence of the alleged incident—video footage automatically captured by the cameras in the various officers’ vehicles—by allowing the footage to be automatically deleted from the police department’s systems.

Judge’s Ruling

Noting examples of at least two officers (in addition to the defendant’s) whose dash cams would likely have been recording, Judge Snow stated: “the available evidence, taken as a whole, establishes that dash cam footage was recorded by at least two vehicles that could have been relevant to Woods’ claim.”  Judge Snow also “decline[d] to assume that any recordings from the vehicles in question would have been irrelevant to Woods’ claim”, stating “the footage’s value cannot simply be replaced by having eyewitness testimony regarding Woods’ arrest—much of the value provided by video footage is that it allows a jury to make its own determination.”

Judge Snow also ruled that the City of Prescott (which was paying for legal representation for the defendant) “had a duty to preserve any video recordings from the responding officers’ dash cams once it knew that litigation was reasonably likely” (which was by April 2017, at the latest) and “the parties do not dispute that any footage has been erased.”  And, Judge Snow ruled that “[t]he spoliation can be imputed to Scissons”, observing that the City would pay any judgment against the defendant in the case.

As a result, Judge Snow granted in part and denied in part the plaintiff’s motion for sanctions, ordering the following: “Because there is evidence that video recordings of the alleged event existed but were not preserved, the jury will hear evidence concerning the potential existence of video footage and will be instructed that it may consider that evidence along with all other evidence in reaching its decision. It will also be instructed that if it determines that the Police Department destroyed evidence and did so with the intent to deprive Woods of the use of the video footage, it may infer that the footage would have been favorable to Woods. However, the Court declines to give the instruction as requested by Woods because the question of intent will be submitted to the jury.”

So, what do you think?  Should juries decide intent to deprive in spoliation disputes?  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.

Forget CCPA. COPPA Just Cost YouTube and Google $170 Million: Cybersecurity Trends

Sure, we’ve been talking a lot the past couple of years about Europe’s General Data Protection Regulation (GDPR), enacted in May 2018 and we’ve already seen one big fine here and another huge potential fine here.  And, we’ve been talking for over a year now about the California Consumer Privacy Act, which is scheduled to take effect next January 1st.  But, have we talked about “COPPA”?  Not, till now.  But, “COPPA” just cost YouTube and Google $170 million.

According to CBS News (Google to pay $170 million for violating kids’ privacy on YouTube, written by Sarah Min), Google will pay a record $170 million fine to settle a lawsuit filed by federal and state authorities that charged the internet giant with violating children’s privacy on YouTube, the Federal Trade Commission (FTC) said Wednesday.

The settlement requires Google and YouTube to pay $136 million to the FTC and $34 million to New York state for violating the Children’s Online Privacy Protection Act (COPPA), by collecting personal information from children without their parents’ consent.

The FTC and the New York attorney general alleged in a complaint that YouTube gathered children’s personal information by using “cookies,” or personal identifiers, that track users online. According to the suit, YouTube earned millions of dollars by using the information to deliver targeted ads to kids.

COPPA requires online websites to obtain parental consent prior to collecting kids’ online usage information. The FTC and New York Attorney General Letitia James said that, while YouTube claimed it caters to a general audience, many of its online channels are aimed at children under the age 13. That requires the service to comply with COPPA guidelines.

“YouTube touted its popularity with children to prospective corporate clients,” FTC Chairman Joe Simons said in a statement. “Yet when it came to complying with COPPA, the company refused to acknowledge that portions of its platform were clearly directed to kids.”

For example, a toymaker with a YouTube channel could track people who viewed its videos to send ads for its own products that are targeted to children. The FTC said in its complaint that Google and YouTube told toymaker Mattel that YouTube “is today’s leader in reaching children age 6-11 against top TV channels.” It also said that the companies told Hasbro that YouTube is the “#1 website regularly visited by kids.”

But when it came to advertisers, the FTC alleged that YouTube told at least one marketer that the video-search company need not comply with COPPA, as it did not have users under the age of 13 on the platform.

Prior to Google’s settlement, the largest civil FTC penalty for a children’s data-privacy case was a $5.7 million for a case in February involving social media app TikTok. This penalty is nearly 30 times that one.  Still, critics say last week’s settlement still amounts to a drop in the bucket for Google, whose parent company Alphabet was sitting on $121 billion in cash and securities at the end of June.

Nonetheless, this penalty, along with Google’s GDPR fine from earlier this year, adds up to nearly $227 million.  That’s some serious money, even for a company like Google.  Great Google-y Moogle-y!

So, what do you think?  Will fines like these change how organizations track user data?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Grants Spoliation Sanctions for Defendant’s Failure to Preserve Photos of Prisoner Plaintiff: eDiscovery Case Law

In Wilmoth v. Deputy Austin Murphy, No. 5:16-CV-5244 (W.D. Ark. Aug. 7, 2019), Arkansas District Judge Timothy L. Brooks granted the plaintiff’s Motion for Relief Regarding Spoliation, finding that the “defendant’s conduct in this case was designed to deprive” the plaintiff the use of photographs in litigation that were purported to have shown injuries suffered by the plaintiff associated with his excessive force claim against the deputy defendant.

Case Background

In this case involving the plaintiff’s claim of excessive force against Deputy Murphy for an incident on August 12, 2016 in the plaintiff’s cell, Judge Brooks observed that “the facts surrounding that confrontation are disputed, but it is undisputed that Wilmoth sustained at least some bruising following the event.”  Pursuant to standard operating procedures, Deputy Zachary Hale took photographs of the plaintiff and his injuries using his personal cell phone (of which Sergeant Lira made specific mention in his resulting report), which were to be used in the resulting investigation of the incident.  But the photographs were either 1) never uploaded to the jail’s internal incident reporting system or 2) were uploaded and were subsequently misplaced or deleted – they were also never produced to the plaintiff during discovery.  Claiming that this evidence was intentionally destroyed or made unavailable to him by the defendant, the plaintiff requested an adverse inference instruction based on spoliation of evidence.

Judge’s Ruling

Judge Brooks began discussion of the issue by stating: “Before a Court can impose sanctions under Rule 37, it must first determine that the party had a duty to preserve electronically stored information. In this case, that proof is abundant.”  Noting that counsel for the defendants had issued a litigation hold letter to the officers of the Benton County Jail and that the Court’s initial scheduling order directed that, within 45 days, defendants were to provide the plaintiff with “a copy of all incident reports documenting incidents referenced in the Plaintiff’s complaint, including any color photographs”, Judge Brooks stated: “As such, defendant was clearly on notice—both through his own attorney and court orders, that he was under a duty to preserve documents relevant to the incidents recounted in Wilmoth’s complaint.”

Judge Brooks went on to note that “the evidence as a collective whole indicates that there were many times when defense counsel buried her head in the sand in this case and never fully committed to producing this evidence or discovering where it was” and “that includes conduct which might readily be viewed as intentional deception before this court.”

As a result, Judge Brooks ordered the following sanctions: “First, in light of Sergeant Lira’s role in conducting the investigation into Wilmoth’s sexual assault allegations, the Court finds it literally incredible to hear Lira explain that he does not remember what he did with the pictures that he acknowledged viewing in his report or why these photographs would not have been uploaded as a crucial part of his investigatory file in accordance with county policy. The Court finds that his actions in this case have severely undermined his credibility. Given his direct involvement in viewing and in failing to ensure preservation of these photographs, the Court finds that his actions demonstrate bad faith and that it would be appropriate to prevent the defendant from calling him as a witness in his case. The same sanction will also apply to Deputy Hale. Hale admitted during his deposition that although standard policy would have already required him to preserve and upload these photographs to the system, he certainly should have done so here given the nature of Wilmoth’s accusations against Deputy Murphy. Yet, he failed to take any reasonable steps to ensure preservation of the materials that he knew were crucial to the resulting investigation… Second, under Rule 37(e)(2)(B) and in light of the Court’s earlier finding that defendant and his counsel have willfully acted to prevent Wilmoth from accessing this documentary evidence that he claims would support his case, the Court will instruct the jury that it may, but is not required to, presume that the photographs in question would have supported Wilmoth’s claimed injuries arising from his in-cell confrontation with Deputy Murphy and that the lack of such photographic evidence should not be held against Wilmoth in this case.”

So, what do you think?  Were the sanctions granted appropriate for the level of spoliation?  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.

What’s in a Name? Potentially, a Lot of Permutations: eDiscovery Throwback Thursdays

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

This post was originally published on November 13, 2012 – when eDiscovery Daily was early into its third year of existence.  Back then, the use of predictive coding instead of keyword searching was very uncommon as we had just had our first case (Da Silva Moore) approving the use of technology assisted review earlier in the year.  Now, the use of predictive coding technologies and approaches are much more common, but many (if not most) attorneys still use keyword searching for most cases.  With that in mind, let’s talk about considerations for searching names – they’re still valid close to seven years later!  Enjoy!

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in our CloudNine Review platform.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is usually best.

Next week, we will talk about another way to retrieve documents that mention key individuals – through their email addresses.  Same bat time, same bat channel!

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

Weekly Trends From a Name and an Organization You Know Well: eDiscovery Trends

I’m shocked – shocked! – that I haven’t covered this before now.  What if I told you there is a single place you can go to get a list of weekly trends on eDiscovery – everything from articles to case law to announcements and even upcoming events and webinars?  And that it’s available from an organization you probably know well and an author you probably know even better?  You’d probably want to check that out, right?

Indeed, you should.  It’s the Weekly Trends Report compiled by none other than EDRM co-founder and BDO Managing Director George Socha, available on the blog page of the Association of Certified E-Discovery Specialists (ACEDS) website or directly from the weekly trends page here, which also includes previous weekly trends reports, back to December of last year.  The weekly trends report delivers:

“Insight into where e-discovery, information governance cybersecurity, and digital transformation are heading – who is doing what now or in the future, what works and what doesn’t, and what people wish they could do but can’t – gleaned from recent publications”

Here are examples of the types of topics that George covers on his weekly trends report:

  • An Above the Fold section where George touches on some of his upcoming speaking engagements (he has a new webinar series coming up with Mary Mack and will be speaking – 3 times! – at Relativity Fest).
  • An Electronic Discovery section where he links to interesting articles related to eDiscovery.
  • A Cybersecurity & Data Privacy section where he does the same for those topics, breaking it down into subcategories for things like CCPA and GDPR.
  • A Legal Technology & Digital Transformation section where he links to interesting articles that tie into those topics.
  • An E-Discovery Case Law section with a brief blurb on recent cases and links to coverage/case opinions.
  • An Announcements section where he links to announcements by companies in the eDiscovery space.
  • An Additional Articles section where he links to other notable articles not covered above.
  • An Upcoming Events section where he provides a list of notable webinars, conferences, podcasts and meetings over the next month, with (of course) links for more info on how to register, etc.

In short, it’s a great summary of what’s going on in eDiscovery from a standpoint of notable articles, cases, company announcements and events.  Now, you know – if you didn’t before!

So, what do you think?  Where do you get your weekly trends for eDiscovery?  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.

Here’s a Webcast to Learn How to Think Like a Millennial When Addressing eDiscovery Needs: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, millennials, with their focus on mobile devices and social media sites, may be changing eDiscovery (depending on your point of view).  Regardless, eDiscovery is changing and millennials may be a BIG part of that change.  Here’s a webcast that will help you think like a millennial to address your eDiscovery needs.

On Wednesday, September 18th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Thinking Like a Millennial in eDiscovery.  This CLE-approved* webcast session will discuss how evolving technology trends are impacting eDiscovery today and how to think like a millennial to stay on top of those developing trends. Key topics include:

  • Understanding Millennials and How They Differ from Previous Generations
  • Drivers for Millennials’ Thinking Today
  • How Litigation Support and eDiscovery Has Evolved Over the Years
  • Challenges Posed by BIG Data and Variety of Data Sources
  • Ethical Duties and Rules for Understanding Technology
  • Impact of Millennials on Legal Technology and eDiscovery
  • Your Clients May Have More ESI Than You Think
  • Recommendations for Addressing Today and Future Technology Challenges

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 the habits of millennials will impact your eDiscovery processes, this is the webcast for you!

So, what do you think?  Are you concerned about how the habits of millennials will impact your eDiscovery processes?  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.

Here’s My Observations of The Good, The Bad and The Ugly (IMHO) of ILTACON 2019: eDiscovery Trends

Sure, I might be a little later on this than intended (wanted to cover some other topics earlier this week and also allow some time to organize my thoughts), but we’re still within a week(ish) of the conference wrap up, so here are some of my observations regarding this year’s conference using the theme of the classic spaghetti western The Good, The Bad and the Ugly.

Litigation Support Focus: One complaint that I’ve certainly heard about legal technology conferences is that they just don’t cover enough general eDiscovery or litigation support topics anymore.  That was certainly not the case at this year’s ILTACON.  In addition to the all day Litigation Support Day, which featured 30 speakers over 23 different mini-sessions and “SPARK” (Short, Provocative, Action-oriented, Realistic, and Knowledgeable) talks by thought leaders in the industry, there were several other litigation support related sessions.  Adding in Pitch Your Litigation Support Challenges on Monday and 10 Litigation Support Tips in 60 Minutes on Thursday made this a litigation support heavy conference for those interested in lit support.  Keep it up, ILTA!

The Volunteers: The people who coordinate the sessions (among many other things at the show) all have very busy day jobs, yet they put in a lot of additional time to coordinate speakers for sessions at the conference and do an excellent job.  Last year, the coordinator for the session I spoke at was Stephanie Clerkin; this year, it was Shawn McClurg and David Horrigan (for the Lit Support Day session that he also moderated the entire day).  Working with people like that who do everything they can to help ensure a session that provides great speakers discussing interesting topics makes it very easy for people like me to want to speak again (if I’m lucky enough to be asked).

Nobody Got Fired! (that I know of): Houston, we have a CEO!  After shuffling key personnel the past three years, ILTA selected Joy Heath Rush as its CEO (first as interim CEO, then the interim tag was later removed).  Joy, who’s a long-time participant at ILTA (I believe she said 24 years at the start of Litigation Support Day) is widely respected within the industry, so that’s promising for the future.

CloudNine Also Had a Great Show (shameless plug warning!): ;o)  We had a lot of new enhancements to showcase in our CloudNine Explore™, LAW™, Concordance® and Review™ products (some of which we highlighted in this press release here) which were very well received in our meetings with customers and partners.  And, we also announced an exciting partnership with Oasis Discovery (details here).  We also co-sponsored a party with Oasis at the conference – more on that below.  And Legal IT Insider published an article by our CEO, Tony Caputo, here.  Hey, Tony, if you ever want to pitch hit for me on the blog, let me know!  ;o)  Thanks To Bob Ambrogi (who covered both announcements on his LawSites blog here and here), Mike Quartararo (who covered us in Above the Law here) and Legal IT Insider and Legal IT Professionals for their coverage!

The Length of the Conference: One of my biggest issues with ILTACON over the years has been the length of it – essentially five days when you count the pre-conference events on Sunday.  Sure, people could attend for part of it, but which part do you pick.  Thursday sessions – even with excellent topics and speakers – suffer in attendance as the conference winds down (we only had about 50-60 attendees for the excellent Predictive Coding session that I moderated on Thursday at 11:30 in a room that seated about 200).  I’m sure part of the concern on ILTA’s part might be ability to charge the same amount for conference registration, but I think shortening the conference by a day might (in turn) add some attendees who may not be able to break away for five days.  Worth considering, at least.

Exhibitors Are People Too: Unlike Legaltech, we do get to attend the sessions, so that’s good.  But, we don’t get to participate in the meals at the conference, which is a prime networking opportunity and community building opportunity.  I’ve been to other conferences where exhibitors are also included in the meal breaks and I haven’t seen exhibitors take advantage and turn it into a sales pitch opportunity; instead, it’s a great time to get to know colleagues on a personal level and build community within the industry.  Hey, ILTA, maybe you could throw us a bone next year and include a couple of meal passes with each booth reservation?  After all, we’re helping to pay for those meals, just sayin’…

The Venue: Despite Bob Ambrogi’s observation in his excellent write-up of the conference (where he indicated that he actually liked the venue), I (and many others I spoke with) did not.  Splitting the conference across the Walt Disney World Swan and Dolphin separate hotels, requiring people to walk outdoors in Orlando heat and humidity to go from place to place wasn’t great.  Even if there was a golf cart service to get you between hotels more quickly, you had to wait for them often enough that it was usually preferable (for me at least) to just go ahead and walk it.  The venue wasn’t also very easily accessible, with events on different floors with minimal escalator or elevator availability, so that was another complaint that was mentioned.  Oh, and BTW, having a party in a suite in a family hotel next to guest rooms apparently gets your party shut down early as Oasis and CloudNine found out (at least it makes for a great story now!).  I heard from a couple of people that ILTA reserved the Swan and Dolphin a whopping 11 years ago(!) for this year’s event; hopefully, that was a one-time trial.  We’ll see.

Next year, the conference is back at the Gaylord Opryland Resort and Convention Center in Nashville (August 23-27), so many of this year’s issues shouldn’t be a problem at that proven venue.

So, what do you think?  Did you attend ILTACON this year?  If so, what were your highlights and lowlights of the show?  Please share any comments you might have or if you’d like to know more about a particular topic.

Movie Images Copyright © MGM/UA

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 Number of Pages (Documents) in Each Gigabyte Can Vary Widely: eDiscovery Throwback Thursdays

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

This post was originally published on July 31, 2012 – when eDiscovery Daily wasn’t even two years old yet.  It’s “so old (how old is it?)”, it references a blog post from the now defunct Applied Discovery blog.  We’ve even done an updated look at this topic with more file types about four years later.  Oh, and (as we are more focused on documents than pages for most of the EDRM life cycle as it’s the metric by which we evaluate processing to review), so it’s the documents per GB that tends to be more considered these days.

So, why is this important?  Not only for estimation purposes for review, but also for considering processing throughput.  If you have two 40 GB (or so) PST container files and one file has twice the number of documents as the other, the one with more documents will take considerably longer to process. It’s getting to a point where the document per hour throughput is becoming more important than the GB per hour, as that can vary widely depending on the number of documents per GB.  Today, we’re seeing processing throughput speeds as high as 1 million documents per hour with solutions like (shameless plug warning!) our CloudNine Explore platform.  This is why Early Data Assessment tools have become more important as they can provide that document count quickly that lead to more accurate estimates.  Regardless, the exercise below illustrates just how widely the number of pages (or documents) can vary within a single GB.  Enjoy!

A long time ago, we talked about how the average number of pages in each gigabyte is approximately 50,000 to 75,000 pages and that each gigabyte effectively culled out can save $18,750 in review costs.  But, did you know just how widely the number of pages (or documents) per gigabyte can vary?  The “how many pages” question came up a lot back then and I’ve seen a variety of answers.  The aforementioned Applied Discovery blog post provided some perspective in 2012 based on the types of files contained within the gigabyte, as follows:

“For example, e-mail files typically average 100,099 pages per gigabyte, while Microsoft Word files typically average 64,782 pages per gigabyte. Text files, on average, consist of a whopping 677,963 pages per gigabyte. At the opposite end of the spectrum, the average gigabyte of images contains 15,477 pages; the average gigabyte of PowerPoint slides typically includes 17,552 pages.”

Of course, each GB of data is rarely just one type of file.  Many emails include attachments, which can be in any of a number of different file formats.  Collections of files from hard drives may include Word, Excel, PowerPoint, Adobe PDF and other file formats.  So, estimating page (or document) counts with any degree of precision is somewhat difficult.

In fact, the same exact content ported into different applications can be a different size in each file, due to the overhead required by each application.  To illustrate this, I decided to conduct a little (admittedly unscientific) study using our one-page blog post (also from July 2012) about the Apple/Samsung litigation (the first of many as it turned out, as that litigation dragged on for years).  I decided to put the content from that page into several different file formats to illustrate how much the size can vary, even when the content is essentially the same.  Here are the results:

  • Text File Format (TXT): Created by performing a “Save As” on the web page for the blog post to text – 10 KB;
  • HyperText Markup Language (HTML): Created by performing a “Save As” on the web page for the blog post to HTML – 36 KB, over 3.5 times larger than the text file;
  • Microsoft Excel 2010 Format (XLSX): Created by copying the contents of the blog post and pasting it into a blank Excel workbook – 128 KB, nearly 13 times larger than the text file;
  • Microsoft Word 2010 Format (DOCX): Created by copying the contents of the blog post and pasting it into a blank Word document – 162 KB, over 16 times larger than the text file;
  • Adobe PDF Format (PDF): Created by printing the blog post to PDF file using the CutePDF printer driver – 211 KB, over 21 times larger than the text file;
  • Microsoft Outlook 2010 Message Format (MSG): Created by copying the contents of the blog post and pasting it into a blank Outlook message, then sending that message to myself, then saving the message out to my hard drive – 221 KB, over 22 times larger than the text file.

The Outlook example back then was probably the least representative of a typical email – most emails don’t have several embedded graphics in them (with the exception of signature logos) – and most are typically much shorter than yesterday’s blog post (which also included the side text on the page as I copied that too).  Still, the example hopefully illustrates that a “page”, even with the same exact content, will be different sizes in different applications.  Data size will enable you to provide a “ballpark” estimate for processing and review at best, but, to provide a more definitive estimate, you need a document count today to get there.  Early data assessment has become key to better estimates of scope and time frame for delivery than ever before.

So, what do you think?  Was this example useful or highly flawed?  Or both?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Denies Dueling Sanctions Motions from Both Plaintiffs and Defendants: eDiscovery Case Law

In Cox v. Swift Transportation Co. of Arizona, LLC, No. 18-CV-117-CVE-JFJ (N.D. Okla. Aug. 6, 2019), Oklahoma District Judge Jodi F. Jayne denied both the plaintiffs’ and defendants’ motion for sanctions for spoliation of evidence, finding no intent to deprive by either side to justify a sanction of either an adverse inference jury instruction or directed verdict (for the plaintiffs)/dismissal (for the defendants).

Case Background

In this case involving an accident between two tractor/trailers in which Plaintiff Adam Cox suffered severe injuries, both parties failed to preserve electronic data:

  • Defendant Swift Transportation Company (“Swift”) failed to preserve: (1) electronic control module (“ECM”) data of the Swift tractor/trailer driven by Defendant Sai Wai (“Wai”), which would have provided information regarding the speed of Wai’s vehicle at the time of the accident and any “Critical Event Report” prompted by hard braking or a sudden drastic change in speed; (2) messages delivered from Wai to Swift via the Qualcomm mobile communication system; and (3) Wai’s electronic driver “E-logs” for the 1.5 hours immediately prior to the accident, which were also stored electronically on the Qualcomm system.
  • Plaintiffs Adam and Kimberly Cox failed to preserve: (1) ECM data from Cox’s vehicle, which Defendants argue would have (a) provided information regarding the speed of Cox’s vehicle at the time of the accident, and (b) potentially bolstered its expert’s opinion that Cox failed to brake; and (2) Cox’s paper driver logs, which were on the dashboard at the time of the accident (“Logs”).

The plaintiffs filed a Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 37 for Defendant Swift’s Spoliation of Evidence, requesting two alternative sanctions under Federal Rule of Civil Procedure 37(e): (1) a directed verdict on the issue of liability; or (2) an adverse inference jury instruction.  The defendants’ filed a Motion for Sanctions for Plaintiffs’ Spoliation of Evidence, requesting either the dismissal of the plaintiffs’ case or an adverse inference instruction regarding the spoliated evidence.

Judge’s Ruling

In considering the plaintiffs’ request for sanctions for failure to preserve the ECM Data/Qualcomm Messages, Judge Jayne stated: “After consideration of the record and the parties’ oral argument, the Court finds that Swift did not “act[] with the intent to deprive [Plaintiffs] of the information’s use in the litigation” and therefore declines to impose either of the severe sanctions requested by Plaintiffs…Swift’s stated reason for failing to download the ECM data or immediately place a litigation hold on evidence is adequately supported by [investigating Officer Jason] McCarthy’s investigation, conclusions, and report, and the Court finds no inference or indication that Swift engaged in bad faith or intentional conduct aimed at depriving Plaintiffs of this evidence.”

Citing defendant Swift’s explanation for failure to preserve 1.5 hours of E-Logs as caused by a failure to account for a Time Zone difference between Mountain and Central Time, Judge Jayne stated: “The Court finds this explanation plausible and consistent with the actual missing data. This explanation, at most, shows a negligent failure to retain by Swift. As explained above, negligent failures to retain evidence cannot support Plaintiffs’ requested sanctions in this case, and Plaintiffs’ motion for sanctions based on failure to preserve the missing E-logs is also denied.”

With regard to the defendants’ motion for sanctions, Judge Jayne stated “the Court easily concludes that Plaintiffs did not intentionally deprive Defendants of evidence or engage in any bad-faith conduct by failing to preserve the ECM data or the Logs. The engine, including the ECM device, was hauled away as debris from the scene of the accident by Environmental Remediation Services, Inc., (“ERS”), held for thirty days, and then sent to the scrap yard. Cox was in the hospital for five weeks following the accident. It strains reason to find that Plaintiffs acted with intent to deprive Defendants of this evidence when, at most, Plaintiffs failed to prevent another entity, ERS, from scrapping the engine pursuant to ERS’s own standard retention policy.”  She also characterized the plaintiffs’ explanation that the Logs on the dashboard were destroyed in the accident as “plausible” and stated: “Accordingly, Defendants’ requested sanctions of dismissal or an adverse inference instruction are denied.”

So, what do you think?  Should either party have attempted to obtain less severe sanctions instead?  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.

The Houston Legal Technology Showcase and Conference is Less Than a Month Away: eDiscovery Best Practices

It’s officially a tradition now!  The Third Annual Women in eDiscovery (WiE) Houston Chapter, Legal Technology Showcase and Conference will be held on Thursday, September 26th in downtown Houston!

WiE Houston, once again in partnership with South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS), will be hosting the conference on that day.  The one-day technology showcase will bring together legal thought leadership, innovative technology providers, practitioners, legal support staff and law school students in one venue to network and collaborate on current legal industry trends and innovative technology products.

Thanks to South Texas College of Law, ACEDS, conference sponsors and technology exhibitors, the event is free(!) to attend and open to all professionals within the legal industry including attorneys, litigation support and legal operations professionals, paralegals, legal IT staff, court reporters, consultants, recruiters and vendors.

The conference will feature several educational sessions (CLE credit pending) led by industry experts and thought leaders along with a full day of technology exhibits from leading legal technology providers. The agenda and speakers will be updated as they are finalized. The event agenda includes a continental breakfast, welcome keynote, 3 educational sessions, lunch, all day exhibitions, and a post-event happy hour.  The current agenda and list of speakers for the conference are available here.

Attendees will also once again have the opportunity to enter in a drawing to win a CEDS scholarship courtesy of ACEDS.  CloudNine is once again a Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).

The conference runs from 8:30am to 5:15pm, with a networking happy hour from 5:15pm to 7:15pm.  Both events are at South Texas College of Law in downtown Houston.  If you’re in Houston (or could be on that day), click here to register for the event.  Based on turnout the first two years, it’s going to be BIG, so register early to save your spot!

So, what do you think?  Are you going to be in Houston on September 26th?  If so, register to enjoy free eDiscovery education and a chance to network with your colleagues!  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.