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Doug Austin

The Password Reuse Problem Has Still Not Gone Away: Cybersecurity Trends

This isn’t a throwback post – that comes tomorrow.  But, it’s worth noting that we covered a story over two years ago where the guy who recommended we change our passwords periodically and require passwords that combine upper case letters, lower case letters, numbers and special characters admitted that was bad advice.  But, people – and systems – still seem to support the old ways.  That’s so 2003!

As discussed in Help Net Security (The password reuse problem is a ticking time bomb, written by Michael Greene), In the first six months of 2019, data breaches exposed 4.1 billion records and, according to the 2018 Verizon Data Breach Incident Report (which we covered here), compromised passwords are responsible for 81% of hacking-related breaches. The latest data from Akamai states that businesses are losing $4m on average each year due to credential stuffing attacks, which are executed by using leaked and exposed passwords and credentials.

The author recommends three key steps that organizations should take to strengthen their defenses:

  1. Prevent the use of weak, similar or old passwords: New passwords should be significantly different from the previous ones and old passwords shouldn’t be re-used. Also, fuzzy-matching is a crucial tool for detecting the use of “bad” password patterns, as it checks for multiple variants of the password (upper-lower-case variants, reversed passwords, etc.).
  2. End mandatory password resets, which don’t improve security: This policy has proven to be ineffective as it does nothing to ensure that the new password is strong and has not already been exposed. For example, changing your password from “Big5tud” to “Big5tud!” isn’t an incremental enough change to protect yourself.  ;o)  The author also notes that Microsoft and NIST guidelines (which we covered in the post two years ago) advise against this approach.
  3. Check credentials continuously: NIST advises companies to verify that passwords are not compromised before they are activated and check their status on an ongoing basis. As the number of compromised credentials expands continuously, checking passwords against a dynamic database rather than a static list is critical.

The other key step (that the author didn’t mention) is to implement two-factor authentication wherever possible and expect it from your applications.  Two-factor authentication is where the application sends you a code (via text or email – the means for sending may vary depending on the platform) once you provide your password that you have to enter to then be able to access the application.  Unless a hacker can also access your email account or see your texts, that second layer of security helps protect against hacking of your account via just your password.  According to this infographic from Symantec, 80 percent of data breaches due to stolen credentials could have been eliminated with the use of two-factor authentication.

We’ve known all of this information for at least a couple of years now, yet organizations continue to move slowly in making changes.  Maybe by 2031?

So, what do you think?  Does your organization require you to change passwords periodically?  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.

You May Soon Be Told to “Go Jump in a Lake” for Your ESI: eDiscovery Trends

A data lake, that is. So, what is it and why should you care?  Let’s take a look.

Leave it to Rob Robinson and his excellent Complex Discovery blog to provide links to several useful articles to help better understand data lakes and the potential they have to impact the business world (which, in turn, impacts the eDiscovery world).  Here’s one example:

In this article in BizTech (Data Lakes Prove Key to Modern Data Platforms, written by Jennifer Zaino), the author defines data lakes as “stor[ing] data of any type in its raw form, much as a real lake provides a habitat where all types of creatures can live together.

A data lake is an architecture for storing high-volume, high-velocity, high-variety, as-is data in a centralized repository for Big Data and real-time analytics. And the technology is an attention-getter: The global data lakes market is expected to grow at a rate of 28 percent between 2017 and 2023.

Companies can pull in vast amounts of data — structured, semistructured and unstructured — in real time into a data lake, from anywhere. Data can be ingested from Internet of Things sensors, clickstream activity on a website, log files, social media feeds, videos and online transaction processing (OLTP) systems, for instance. There are no constraints on where the data hails from, but it’s a good idea to use metadata tagging to add some level of organization to what’s ingested, so that relevant data can be surfaced for queries and analysis.”

“To ensure that a lake doesn’t become a swamp, it’s very helpful to provide a catalog that makes data visible and accessible to the business, as well as to IT and data management professionals,” says Doug Henschen, vice president and principal analyst at Constellation Research.

The author also advises not to confuse data lakes (which store raw data) with data warehouses (which store current and historical data in an organized fashion).

Data warehouses are best for analyzing structured data quickly and with great accuracy and transparency for managerial or regulatory purposes. Meanwhile, data lakes are primed for experimentation, explains Kelle O’Neal, founder and CEO of management consulting firm First San Francisco Partners.

With a data lake, businesses can quickly load a variety of data types from multiple sources and engage in ad hoc analysis. Or, a data team could leverage machine learning in a data lake to find “a needle in a haystack,” O’Neal says.

Data warehouses follow a “schema on write” approach, which entails defining a schema for data before being able to write it to the database. Online analytical processing (OLAP) technology can be used to analyze and evaluate data in a warehouse, enabling fast responses to complex analytical queries.

Data lakes take a “schema on read” approach, where the data is structured and transformed only when it is ready to be used. For this reason, it’s a snap to bring in new data sources, and users don’t have to know in advance the questions they want to answer. With lakes, “different types of analytics on your data — like SQL queries, Big Data analytics, full-text search, real-time analytics and machine learning — can be used to uncover insights,” according to Amazon. Moreover, data lakes are capable of real-time actions based on algorithm-driven analytics.

Businesses may use both data lakes and data warehouses. The decision about which to use turns on “understanding and optimizing what the different solutions do best,” O’Neal says.

Want to know more – a lot more – about data lakes?  Check out Rob’s post here with links to several other articles as well.

So, what do you think?  Has your organization learned to “fish” from data lakes yet?  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 Agrees that Emails Including Counsel Aren’t Privileged Because They Don’t Offer Legal Advice: eDiscovery Case Law

In Guardiola v. Adams Cty. School District No. 14 et al., No. 1:18-cv-03230-RM-NRN (D.Colo. Oct. 25, 2019), Colorado District Court Judge Raymond P. Moore overruled the defendants’ objection to the magistrate judge’s order compelling them to disclose three e-mails that they contended were subject to the attorney-client privilege, ruling that “[t]he disputed e-mails do not directly request or offer legal advice.”

Case Background

In this case where the plaintiff claimed wrongful termination because of his association with an organization that the defendants believed was encouraging students to protest against the school board, the parties had a discovery dispute over e-mail concerning the implementation of new security measures at school board meetings in which members of Defendant Adams County School District No. 14 Board of Education and their counsel participated. The magistrate judge reviewed in camera five e-mails from the discussion and then invited briefing on the issue of attorney-client privilege. Both sides filed briefs.  The magistrate judge then determined two of the e-mails – one sent by counsel and another responding to it six minutes later – were privileged but the first, second, and portions of the fifth were not.

The magistrate judge found that the sender of the first e-mail was forwarding a security plan proposed by a third-party security provider and seeking input and direction from all the decision-makers, as well as counsel, about implementing it. The magistrate judge determined that the sender’s request was not privileged simply because the attorney was included in the discussion.  The magistrate judge found that the sender of the second e-mail was expressing concerns about strategy, perception, and public opinion and that the e-mail was not sent for the purpose of giving or receiving legal advice.  And the magistrate judge found that the sender of the fifth e-mail reflected the sender’s decision with respect to the proposed security plan and her reasons for that decision; thus, it was merely a business communication and not privileged.  The defendants objected.

Judge’s Ruling

Noting that “The privilege ‘protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege’”, Judge Moore stated: “The disputed e-mails do not directly request or offer legal advice. Nor are they necessary to obtain such advice. Instead, the disputed e-mails are part of a broader discussion about increasing security at school board meetings. Although legal considerations are one component of that discussion, the disputed e-mails, on their face, predominantly relate to other issues. The primary purpose of the first e-mail is to address logistical issues raised by a private security provider. The primary purpose of the second e-mail is to share concerns about managing public opinion. And the primary purpose of the fifth e-mail is to announce and explain the decision that was reached. To the extent legal issues are tangentially related to the broader topic of security, that is not enough to bring the content of these e-mails within the attorney-client privilege.”

Noting that “Defendants cite no authority, nor is the Court aware of any, for the proposition that the Court is precluded from assessing the e-mails at face value and based on the context in which they were sent”, Judge Moore stated, in overruling the defendants’ objection: “Defendants have failed to show that the attorney-client privilege applies to the disputed e-mails and that the magistrate judge’s ruling was clearly erroneous or contrary to law.”

So, what do you think?  Should emails including counsel always be considered privileged or do they need to include legal advice?  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 Motion to Compel in Elizabeth Holmes Theranos Criminal Case: eDiscovery Case Law

In United States v. Holmes, et al, No. 5:18-cr-00258-EJD-1 (N.D. Cal. Nov. 5, 2019), California District Court Judge Edward J. Davila granted the defendants’ motion to compel federal prosecutors to produce material responsive to six requests from the Food and Drug Administration (FDA) and the Centers for Medicare and Medicaid Services (CMS), disagreeing with the prosecution’s contention that it could not be compelled to produce documents from under Rule 16 because it lacked access to them.

Case Background

In this criminal case regarding charges of wire fraud and conspiracy to commit wire fraud against key officers of the now defunct company Theranos, on April 15, 2019, defendant Holmes (later joined by defendant Balwani) moved to compel federal prosecutors to produce material responsive to six requests from FDA and CMS.  In addition, the defendants raised concerns about the Agencies’ preservation efforts, the failure of FDA to run certain search terms and failure of the Agencies to complete production by either an original deadline of October 2 or an extended deadline of October 25.

Judge’s Ruling

Noting that Rule 16 “grants criminal defendants a broad right to discovery”, Judge Davila stated: “The Prosecution does not oppose Defendants obtaining the sought-after documents, but it argues that it cannot be compelled to produce the documents under Rule 16 because it lacks access…The court disagrees. Even though the Agencies are not part of DOJ, the Prosecution’s involvement with the Agencies’ discovery efforts reveals a relationship that includes significant access, communication and assistance, such as CMS’s use of DOJ’s Litigation Technology Service Center. This cooperative relationship moves the Prosecution closer to privity of knowledge and control of the information sought. The Prosecution’s access to the requested documents is further shown through its dealings with the Agencies prior to the filing of this motion.”  As a result, Judge Davila “order[ed] the Prosecution to produce the documents discussed below as part of their Rule 16 obligation, and to assist the Agencies however possible to ensure the timely production of documents.”

Turning to the alleged deficiencies in the Agencies’ productions, Judge Davila noted, among other concerns, that “Defendants contend that over 1000 emails from a single witness have been produced as fragmentary documents—i.e, that the produced emails omit portions of the original email, such as the “to,” or “from,” or the body fields… Defendants also contend that CMS and FDA have failed to produce some hardcopy documents.”  As a result, Judge Davila “order[ed] that the Agencies shall continue their investigations of these issues and shall disclose the procedures and results of their investigations to the parties no later than November 26, 2019.”

Judge Davila also ordered FDA to “run searches of all of its custodians’ documents using the following terms: ‘LDT’, ‘Laboratory Developed Test’, ‘Theranos’, ‘fingerstick’ or ‘finger stick’, and ‘nanotainer’” and “produce any responsive documents returned by these searches” to address search term concerns expressed by the defendants.  With regard to the missed production deadlines, Judge Davila “order[ed] the Agencies and the Prosecution to complete the production of documents by December 31, 2019.”

Finally, Judge Davila “order[ed] the Agencies, the Prosecution, and Defendants to meet and confer on the above issues, and other discovery related matters” to include “(a) whether the Agencies have or will produce employee text messages, (b) any deficiencies in FDA’s production that are attributable to FDA’s instruction to employees to manually search for responsive documents instead of forensically searching for, collecting, and reviewing documents, (c) the terms the Agencies use to search for and collect potentially responsive documents, and (d) FDA’s redactions to documents and withholding of duplicate documents.”  Judge Davila also set a further status conference for January 13, 2020.

So, what do you think?  Was the judge correct to order the prosecution to produce documents from other agencies?  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 Files are Already Electronic, How Hard Can They Be to Load?: 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 25, 2013, when eDiscovery Daily was less than three years old.  It was a throwback post of sorts even back then as it referenced several earlier posts and was inspired for today’s post by Craig Ball’s new primer – Processing in E-Discovery – which I covered yesterday on our blog.  Craig’s new primer immediately confronts a myth that many attorneys believe with regard to electronic files and how easily (and quickly) they can be made ready for production.  Spoiler alert!  There’s a lot more to it than most attorneys realize.  Craig’s primer does a thorough job of explaining the ins and outs of that, but if you haven’t gotten a chance to read it all yet – you should – here are a few specific reasons that I explained over six years ago why the files need processing to be reviewable and useful.  Enjoy!

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

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

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

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

So, what do you think?  Do you work with attorneys who still expect the files to be available for review immediately?  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.

Why Process in eDiscovery? Isn’t it “Review Ready”?: eDiscovery Best Practices

As I’ll point out in tomorrow’s blog post (spoiler alert!), I’ve been asked a variation of this question for years.  But, perhaps the best answer to this question lies in Craig Ball’s new primer – Processing in E-Discovery.

Craig, who introduced the new primer in his latest blog post – the 200th of his excellent Ball in Your Court blog – asked the questions posed in the title of this post in the beginning of that primer (after the Introduction) and confronts a myth that many attorneys believe with regard to electronic files and how easily (and quickly) they can be made ready for production.  As Craig explains:

“Though all electronically stored information is inherently electronically searchable, computers don’t structure or search all ESI in the same way; so, we must process ESI to normalize it to achieve uniformity for indexing and search.”

But I’m getting ahead of myself.  In the Introduction, Craig says this:

“Talk to lawyers about e‐discovery processing and you’ll likely get a blank stare suggesting no clue what you’re talking about.  Why would lawyers want anything to do with something so disagreeably technical? Indeed, processing is technical and strikes attorneys as something they need not know. That’s lamentable because processing is a phase of e‐discovery where things can go terribly awry in terms of cost and outcome. Lawyers who understand the fundamentals of ESI processing are better situated to avoid costly mistakes and resolve them when they happen.”

Then, Craig illustrates the point with a variation of the Electronic Discovery Reference Model (EDRM) which extracts processing as “an essential prerequisite” to Review, Analysis and Production (while noting that the EDRM model is a “conceptual view, not a workflow”).

As Craig discusses, to understand eDiscovery processing is to understand the basics of computers – from bits and bytes to ASCII and Unicode to Hex and Base64 and Encoding.  How to identify files based on file extensions, binary file signatures and file structure.  Why data compression makes smart phones, digitized music, streaming video and digital photography possible.  And, much more.

Want to know how “E-Discovery” would be written in a binary ASCII sequence?  Here you go:

0100010100101101010001000110100101110011011000110110111101110110011001010111001001111001

Craig covers the gamut of processing – from ingestion to data extraction and document filters, from recursion and embedded object extraction to family tracking and exceptions reporting, from lexical preprocessing to building a database and Concordance(!) index.

Yes, it’s technical.  But, a very important read if you’re an attorney wanting to better understand eDiscovery processing and what’s involved and why the files need to be processed in the first place.  Many attorneys don’t understand what’s involved and that leads to unreasonable expectations and missed deadlines.

Craig’s new primer is a 55-page PDF file that is chock-full of good information about eDiscovery processing – a must read for attorneys and eDiscovery professionals alike.  He wrote it for the upcoming Georgetown Law Center Advanced E-Discovery Institute on November 21 and 22, which you can still register for (and get a discount for, per Craig’s blog post).  My only quibble with it is the spelling of “E-Discovery”, but that’s a quibble for another day (you’re welcome, Ari Kaplan!).  :o)

So, what do you think?  Are you mystified by eDiscovery processing?  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.

Time for Another Murder (Possibly) Witnessed by Alexa: eDiscovery Trends

It’s been a while since we covered a good murder case with Internet of Things (IoT) implications.  Here’s a new case in Florida where police have submitted a search warrant to Amazon for recordings from an Echo device in a household where a man was charged with killing his partner with a spear(!).

In People (After Fla. Woman Is Impaled by a Spear, Police Seek Clues From Amazon Alexa Recordings, written by KC Baker), the author reports that Florida police are trying to find out what – if anything – the voice-controlled Amazon Echo Dot smart speakers (commonly known as “Alexa”) heard on July 12 when a Hallandale Beach woman died during a fight with her boyfriend. The incident left her impaled by a spear and him charged with murder, the South Florida SunSentinel reports.

Silvia Galva, 32, and Adam Reechard Crespo, 43, who is reportedly either her boyfriend or husband, were allegedly fighting in their condo after a night out. Crespo told police he was trying to pull Galva off the bed when she grabbed a spear that snapped and pierced her chest as he continued to pull her up.  Crespo then told police he pulled the blade out of the victim’s chest, hoping it was “not too bad,” the Sun Sentinel reports.

The defendant’s actions, the police report goes on to say, “caused the victim to grab the spear to keep herself on the bed. The force used by the defendant to remove the victim cause the shaft to break and in an unknown way caused the blade to pierce the victim which caused the loss of life.”

Crespo was arrested and charged with murder without premeditation, the SunSentinel reports.

In August, Hallandale Beach Police obtained a search warrant for the recordings on two of the Amazon voice assistants that were in the apartment where Galva was killed, the Sun Sentinel reports.

The search warrant, later obtained by CBS Miami, says “It is believed that the evidence of crimes — audio recordings capturing the attack on victim Silvia Crespo…and any events that preceded or succeeded the attack — may be found on the server(s) maintained by or for Amazon.com for all recordings made by the aforementioned Echo smart speakers.”

Amazon turned over recordings to the authorities, who are analyzing the data, Hallandale Beach Police Department spokesman Sgt. Pedro Abut told the SunSentinel.

“It is believed that evidence of crimes, audio recordings capturing the attack on victim Silvia Crespo that occurred in the main bedroom … may be found on the server maintained by or for Amazon,” police wrote in their probable cause statement seeking the warrant, the SunSentinel reports.  Still, it’s unclear how much information the recordings will yield since the Echo supposedly only records when users utter the word “Alexa” or a “wake” word of their choice and don’t usually record entire conversations, according to an Amazon spokesperson.

Crespo’s attorney, Christopher O’Toole, told PEOPLE he feels the recordings can only bolster the case of his client, who he says is innocent.

We’ve certainly seen other murder cases that involve Amazon Echo recordings potentially having data, including this one and this one.  And, we’ve also seen murder cases involving other IoT devices as well, including these this one and this one involving Fitbit devices.  It’s tougher than ever to get away with murder these days!

So, what do you think?  Are you aware of any civil cases where IoT devices came into play?  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 Motion to Bar Plaintiff From Making Adverse Comments Regarding Defendant’s Failure to Produce Key File: eDiscovery Case Law

In Saulsberry v. Savannah River Remediation, LLC, No.: 1:16-cv-02792-JMC (D.S.C. Sep. 19, 2019), South Carolina District Court Judge J. Michelle Childs denied without prejudice the defendant’s Motion in Limine to Bar Plaintiff from Making Adverse Comments Regarding Defendant’s Failure to Produce Certain Records, finding that defendant “has not demonstrated that the contents of the missing Lash Investigative File would necessarily replicate, but not add to, the information provided in the record.”

Case Background

In this Title VII and § 1981 disparate treatment action filed by the plaintiff, she had previously made an internal EEO Complaint in 2013 which allegedly arose from her participation in the 2012 investigation of Robert Lash after which she contended that she was “targeted by her managers and treated differently”.  During discovery, the plaintiff filed a Motion to Compel the contents of the Lash Investigation, but the defendant admitted that it never produced the Lash Investigative File and also admitted that, although there was a physical Lash Investigative File, it submitted written discovery responses stating that no notes or other documentary evidence existed regarding the [Lash] investigation.

However, two deposed witnesses suggested that “documentary evidence which should be in hard copy of the [Lash] Investigative File” and the plaintiff indicated that she had provided some documents from the file to the EEO Director, as part of her internal EEO claim in September of 2013.  Nonetheless, the defendant was unable to locate the file.  The plaintiff contended that the Lash Investigative File was relevant to several of her remaining claims, while the defendant claimed that the file was no longer relevant to any remaining claim and filed a motion to have the court to bar the plaintiff’s ability to elicit testimony regarding the circumstances surrounding the disappearance of the file, contending the issue of “’why’ [Saulsberry] was included in the WFR is no longer relevant” to the claims before the court.

Judge’s Ruling

Judge Childs stated: “While the court agrees that the disappearance of the Lash Investigative File is relevant to the WFR claims which are no longer before the court, the court does not necessarily agree that the Lash Investigative File is not also relevant to the claims presently before the court.”  The plaintiff had argued that her remaining race and retaliation claims relate to her participation in the Lash investigation and also contended that evidence of her ‘protected activity’ (that prohibited her from being rehired for a position) was in the Lash File.  As a result, Judge Childs stated: “This court, therefore, shall not, at this time, prohibit Saulsberry from introducing evidence, or eliciting testimony regarding the Lash File and the circumstances surrounding its disappearance.”

With regard to the defendant’s argument that the plaintiff should be “precluded from seeking an adverse inference charge regarding the lost file”, Judge Childs stated: “The court has a similar view on this issue… SRR has not demonstrated that the contents of the missing Lash Investigative File would necessarily replicate, but not add to, the information provided in the record. Further, ‘Even if a court determines not to exclude secondary evidence, it may still permit the jury to draw unfavorable inferences against the party responsible for the loss or destruction of the original evidence.’ Vodusek, 71 F.3d at 156.  As a result, in denying the defendant’s motion, Judge Childs stated “the court declines to substantively exclude, at this time, all references to the disappearance of the Lash Investigative File or indefinitely preclude Saulsbury from making a showing that an adverse inference instruction based on its disappearance is warranted. Moreover, SRR has not addressed or demonstrated what, if any, prejudice would result if its motion is denied.”

So, what do you think?  Should parties be able to bar opposing parties for commenting about lost records in court proceedings?  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 That Will Discuss the DO’S and DON’TS of 30(b)(6) Witness Depositions: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent six part blog series, Rule 30(b)(6) permits a party to notice or subpoena the deposition of an organization which then must then designate one or more individuals who consent to testify on its behalf about information “known or reasonably available to the organization.”  But, how should it be conducted to maximize the discovery obtained, what are some strategies to consider to help ensure a successful deposition and what are some common mistakes to avoid?  And, what are some eDiscovery related topics about which a 30(b)(6) witness should be prepared to testify?  Here’s a webcast that will answer those questions – and more!

On Tuesday, November 19 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast DO’S and DON’TS of a 30(b)(6) Witness Deposition.  This CLE-approved* webcast session will (obviously) discuss the DO’S and DON’TS of preparing for and conducting a 30(b)(6) witness deposition. Key topics include:

  • Initial Considerations for 30(b)(6) Witness Depositions
  • Proposed Changes to Rule 30(b)(6)
  • Potential eDiscovery Topics for Your 30(b)(6) Witnesses
  • Common Mistakes in Preparing 30(b)(6) Witnesses
  • Specific Strategies to Consider for 30(b)(6) Witness Depositions
  • Case Study: Example of a Hostile 30(b)(6) Witness Presentation
  • 39 Rules for Corporate 30(b)(6) Witness Depositions

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 the ins and outs of preparing for and conducting a 30(b)(6) witness deposition, this is the webcast for you!

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  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.

No Joke, It’s Ten Years of eDiscovery Horrors!

Today is Halloween!  This is our tenth(!) year to identify stories to try to “scare” you with tales of eDiscovery, data privacy and cybersecurity horrors because we are, after all, an eDiscovery blog.  Let’s see how we do this year.  Is it just me, or is it getting crazier out there?

Does this scare you?

Did you know that capturing a biometric fingerprint at a theme park could be a violation of privacy rights?

What about this?

Data security fines are becoming prevalent, such as this one for about $56.8 million.  Wait – I’ll see that and raise you $230 million.  Wait – I’ll see that and raise you $5 billion.  Oh, and there’s more than just GDPR or CCPA to worry about.  Speaking of CCPA, will it be a “dumpster fire” when it rolls out next January?

Or this?

Even after a jury verdict, it’s not too late for sanctions for spoliation of ESI significant enough to cause the judgment to be vacated and the case to be remanded for a new trial.

How about this?

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

Or maybe this?

Clubber Lang predicted “pain” in Rocky IIIThis guy predicts “carnage” resulting from consolidation within the legal tech industry.

Have you considered this?

In this case, two defendants failed to disengage the auto-delete function on their phones, but also each wiped and discarded their phone – one did it twice – since the case began.  Yet, the judge still chose to defer adverse inference sanctions.

Finally, how about this?

In the days after he got fired, he used the stolen login credentials from a former colleague and deleted 23 servers of data in all, which related to clients of the company, for an estimated company loss of $700,000.  Maybe two-factor authentication would have helped here?

Scary, huh?  If the possibility of huge data privacy fines, sanctions even after the case seems to be over, “carnage” within the legal tech industry or your fired IT guy deleting client data doesn’t scare you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you seriously want to get into the spirit of Halloween and be terrified, check out this video.  There is nothing funny about this, believe me!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.