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Doug Austin

2019 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to passwords and Fifth Amendment protection, non-party discovery and mobile and messaging.  Today, let’s take a look back at cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29th – Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

BIOMETRIC SECURITY

When a 14-year old takes a class trip to Six Flags and his fingerprint is biometrically captured without parental approval, a lawsuit ensues.  This case might have had a different result in 47 other states as only three states (Texas and Washington, in addition to Illinois) have biometric security laws:

Illinois Court Says Biometric Fingerprint is Violation of Privacy, Even Without Injury: On January 25, the Illinois Supreme Court rejected an argument from a popular theme park that would have limited a state law that requires consent for the use of facial recognition and other biometrics.  The January ruling involved Six Flags, which allegedly fingerprinted a 14-year-old visitor without parental approval. Contesting the case, Six Flags argued it couldn’t be held liable unless the plaintiff demonstrated a tangible injury from the unauthorized collection, often a difficult task in privacy lawsuits.

COOPERATION

Technically, you could argue that all cases involve a lack of cooperation on discovery.  But, this case – where an attorney sought sanctions against another for hanging up on him – is a unique example of lack of cooperation:

Court Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: In Ewing v. Aliera Healthcare, California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

FORM OF PRODUCTION

We certainly didn’t see near as many form of production disputes as last year, where we had ten cases dealing with the issue in 2018.  Here is one such case from 2019:

Court Denies Defendant’s Motion to Compel Production of Documents and Metadata: In Washington v. GEO Group, Inc., Washington District Judge Robert J. Bryan denied the defendant’s Motion to Compel Production of Documents and Metadata, ruling that the defendant “fails to identify a specific response for production to which the State did not respond”, that the defendant “has not shown that the [metadata] is relevant and proportional to the needs of the case” and that the “the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

SOCIAL MEDIA RELATED CASES

There are always a handful of cases each year related to discovery of social media data.  However, this year we had two social media related cases of a different sort – involving judge “friending” of participants in litigation (one party, one attorney – that one was technically a 2018 ruling, but we covered it last year).  Oh, and a photo on social media can be discoverable simply because you’re “tagged” in it.  Here are five social media related cases:

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: In Facebook, Inc. v. Wint, the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: In Vasquez-Santos v. Mathew, the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

Judge’s Facebook Friendship with Party Causes Decision to Be Reversed and Remanded to Different Judge: In the case In Re the Paternity of B.J.M., the Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case {by accepting a Facebook “friend” request from the litigant} created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.

Court Sanctions Plaintiff for Spoliation of Facebook Account: In Cordova v. Walmart Puerto Rico, Inc. et al., Puerto Rico District Judge Aida M. Delgado-Colon granted in part and denied in part the defendant’s motion to dismiss for fraud on the Court, denying the defendant’s request for dismissal, but imposing a sanction of adverse inference regarding the content of the plaintiff’s Facebook page and her deletion of the related account.  Judge Delgado-Colon also ordered the defendant to “submit a proposed adverse-inference jury instruction to that effect before trial.”

Another Case of Judicial “Friending”, But with a Different Result: “Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys?”  The Florida Supreme Court recently answered the question in the negative in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, when it held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification.”

PRIVILEGE AND CONFIDENTIALITY

We always have a handful of cases involving disputes regarding privilege and confidentiality and this year was no different.  One of those cases was certainly unique in that it involved “clawback” of an inadvertent disclosure of privileged ESI (which was granted), but the inadvertently disclosed ESI was still used to determine sanctions against that party.  Here are five cases that dealt with privilege and confidentiality disputes:

Court Rules That Privilege Assertion and Potential Fraud Don’t Mix: In Gates Corp. v. CRP Indus., Inc., Colorado Magistrate Judge Kristen L. Mix overruled the Defendant’s Objection to Report and Recommendation of Special Master on Gates Corporation’s Motion to Pierce Attorney/Client Privilege and proceeded with the Discovery Master’s recommendation, ordering the defendant to submit for in camera review readable and searchable versions of the documents identified as privileged by the defendant (along with an Excel spreadsheet of the privilege log) to the Special Master for review.

Appellate Court Vacates Order Allowing Plaintiff’s Expert Access to Defendant’s ESI Prior to Privilege Determination: In Crosmun v. Trustees of Fayetteville Technical Community College, the Court of Appeals of North Carolina, holding that the trial court abused its discretion by compelling production through a protocol that provided the plaintiffs’ expert with direct access to potentially privileged information and precluded reasonable efforts by Defendants to avoid waiving any privilege, vacated the order and remand for further proceedings not inconsistent with its opinion.

Wal-Mart is Allowed to Clawback Inadvertent Disclosures, But Still Sanctioned Over What They Revealed: In Bellamy v. Wal-Mart Stores, Texas, LLC, Texas District Judge Xavier Rodriguez ruled that the defendant was entitled to “claw back” the documents it inadvertently produced in the case, but still considered those documents in analyzing the plaintiff’s motion for sanctions and granted that motion to the extent that he ruled that the defendant could not assert any comparative negligence defense in this case, including arguing that the danger (of a pallet being left unattended in the store) was open and obvious.

Court Agrees that Emails Including Counsel Aren’t Privileged Because They Don’t Offer Legal Advice: In Guardiola v. Adams Cty. School District No. 14 et al., 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.”

Court Denies Motion to Redact Portions of eDiscovery Teleconference: In Pacific Biosciences of California, Inc. v. Oxford Nanopore Tech., Inc. et al., Delaware Magistrate Judge Jennifer L. Hall denied the defendants’ Motion to Redact Portions of the August 14, 2019 Discovery Teleconference and the related submissions, stating: “The public has an interest in understanding judicial proceedings, even if they have a limited interest in documents submitted in connection with discovery dispute proceedings.”

We’re only halfway done!  Tomorrow, we will cover cases related to disputes regarding proportionality vs. relevancy vs. privacy.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  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.

2019 eDiscovery Case Law Year in Review, Part 1

It’s that time of year again!  Time for our annual review of eDiscovery case law!  This is our ninth(!) annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last eight(!) years, let’s take a look back at 2019!

Last year, eDiscovery Daily published 66 posts related to eDiscovery and data privacy case decisions and activities over the past year, covering 56 unique cases!  The same number of cases as last year and less than a lot of years (believe it or not).  We’re up to 719 lifetime case law related posts, covering 558 unique cases since our inception back in 2010.  And, all case law posts are still online and available for research!  :o)

As always for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts.  A few of them could be categorized in more than one category, so we took our best shot (let’s face it, there were a ton of sanctions cases we covered, but chose to classify some of them in other areas).  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29th – Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PASSWORDS AND FIFTH AMENDMENT PROTECTION

What better place to start than two of the most notable cases of this (or any other) year, dealing with forced provision of device passwords and the application of the “foregone conclusion” exception of the Fifth Amendment protection against self-incrimination. The only thing “common” about the result of these two cases is that they involved the Commonwealth of two different states.  Expect more cases to follow in this area:

In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: In Commonwealth v. Jones, the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Pennsylvania Supreme Court Rules that Forcing Provision of Computer Password Violates the Fifth Amendment: In Commonwealth v. Davis, the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.

NON-PARTY DISCOVERY

It seems that one of the biggest trends of the year were cases where litigants were battling with non-parties to their cases to get the court to decide whether to order those non-parties to produce what was requested.  Here are six cases last year where courts decided on non-party discovery requests:

Court Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: In Fair v. Commc’ns Unlimited Inc., Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Florida Appeals Court Upholds Ruling that Non-Party Had No Duty to Preserve Evidence: In Shamrock-Shamrock, Inc. v. Remark, the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Court Orders Plaintiff to Share in Discovery Costs of Non-Party: In Lotus Indus., LLC v. Archer, Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Court Rejects Plaintiff’s Timeliness and Form Served Arguments; Grants Defendant’s Motion to Compel: In Frey v. Minter, Georgia Chief U.S. District Court Judge Clay D. Land rejected the plaintiff’s arguments that the defendant’s discovery requests were untimely and were not properly served and granted the defendant’s motion to compel against the plaintiff.  With regard to the defendant’s motion to compel against a non-party law firm, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: In Smith v. TFI Family Services, Inc., Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Court Grants Motion to Compel in Elizabeth Holmes Theranos Criminal Case: In United States v. Holmes, et al, 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.

MOBILE AND MESSAGING

One thing is clear – we are starting to see more and more cases where discovery of mobile device data and messaging application data (including data from ephemeral messaging applications) are part of discovery disputes, especially when parties fail to preserve that data.  Here are six cases that dealt with disputes regarding mobile and messaging data (two of them involved celebrities!):

Court Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: In Santana v. MKA2 Enterprises, Inc., Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): In Paisley Park Enter., Inc. v. Boxill, Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.

No Proof of Intent to Deprive Means No Adverse Inference Sanction: In DriveTime Car Sales Company, LLC v. Pettigrew, Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone.  Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”

Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: In NuVasive, Inc. v. Kormanis, North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: In Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, that stemmed from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler), both cases were dismissed when the alleged victim was unable to produce a cell phone key to evidence in the two cases.

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”.  However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  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 about Key Case Law for 2019 and How it Affects 2020: eDiscovery Webcasts

Hindsight is 2020.  Get it?  ;o)  With that in mind, 2019 was another notable year for eDiscovery case law with several significant rulings that stand to impact eDiscovery practices, the admissibility of evidence and the potential of sanctions for discovery violations.  How can these key case law decisions affect discovery within your organization?  Here’s a webcast that will discuss key case law rulings from last year and their impact on this year – and beyond.

Wednesday, January 29th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020. In this one-hour webcast that’s CLE-approved in selected states, we will cover key 2019 case law decisions covered by the eDiscovery Daily blog and what the legal profession can learn from those rulings. Topics include:

  • Biometric Fingerprint Scanning and Privacy
  • Non-party ESI Requests in Litigation
  • Social Media Trends and Judge “Friending”
  • Password Provision and Fifth Amendment Protection
  • Staying Discovery while a Motion to Dismiss is Considered
  • Case Law Trends in Ephemeral Messaging App Discovery
  • Case Law Trends in Mobile Device Discovery
  • Sanctions Trends under Rule 37(e)
  • Sanctions and Case Strategy
  • Inadvertent Disclosures and Sanctions

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 key case law rulings from last year can impact this year, this webcast is for you!

So, what do you think?  Are you big on case law and like to second guess judicial decisions?  If so, please join us!  If not, please join us anyway!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

It’s 2020! Here’s a Current Survey and a Major Conference To Look Forward To: eDiscovery Trends

Happy New Year!  We’re back and better than ever, ready for not only a new year, but a new decade!  So, what’s on tap for the new year?  Here’s a survey currently underway and a major conference coming up in early February – both very familiar to you if you’re familiar with eDiscovery trends.  ;o)

It’s Winter, so it must be time for another eDiscovery Business Confidence survey from ComplexDiscovery!  Believe it or not, this is the fifth year and the seventeenth quarterly survey, and, since January 2016, more than 1,771 individual responses to the survey have been received from legal, business, and technology professionals across the eDiscovery ecosystem.  It’s a non-scientific quarterly survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The core survey consists of nine multiple-choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services. Additionally, the survey includes three multiple-choice questions focused on the trajectory of key operational business metrics.  Literally takes 1-2 minutes to complete.  You can complete the Winter survey here – hurry, as the survey will close by mid-month.

If you follow our blog, you know that we’ve been covering the survey since the beginning and we will continue to cover it this year as well.  Here’s a link to our coverage of the Fall 2019 survey.

The major conference to look forward to is, of course, Legaltech®, which is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  As usual, it will include a slew of educational sessions and a ton of legal technology exhibitors, including (of course) CloudNine (shameless plug warning!).  We will be showcasing some exciting new developments in our Concordance®, LAW™, Explore™ and Review™ products.  And, we have some exciting brand new products we will also be showcasing.  And, we may have other exciting news to share as well.  More on that coming soon!  And, of course, eDiscovery Daily will be covering the event and will provide a preview later this month and a wrap-up after the conference.

And, at Legaltech, we’re once again excited to be co-sponsoring the annual #DrinkswithDougandMary cocktail reception with Mary Mack, Kaylee Walstad and the rest of the EDRM team!  This is our fourth year and we’re grateful to Marc Zamsky and Compliance Discovery for co-sponsoring as well.  It will once again be at Ruth’s Chris Steak house and will happen Wednesday, February 5 from 4-6pm.  You can register to attend here. Last year, we never closed registration and we “broke” the meeting room upstairs, so we’re taking over even more of the restaurant this year!  Come join us!

So, what do you think?  Are you attending Legaltech this year?  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 Plaintiff’s Motion for Sanction for Spoliation of Audio Recording: eDiscovery Case Law

In Montoya v. Loya Ins., No. 18-590 SCY/JFR (D.N.M. Oct. 24, 2019), New Mexico Magistrate Judge Steven C. Yarbrough denied the plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence, after a jury trial in favor of the plaintiff, finding that there was minimal prejudice to the plaintiff and that “there is no dispute over the relevant contents of the telephone conversation” which was recorded.

Case Background

In this case involving a bad faith claim against the plaintiff’s insurance company for its handling of her claim under her uninsured motorist benefits, the defendant took a recorded statement from the plaintiff in the course of its investigation but lost it.  The plaintiff was forced to file suit against the defendant in state court in February 2017 and the jury rendered a verdict in favor of the plaintiff against the defendant in January 2018 in the amount of $23,742.82.  Despite that, the plaintiff sought a finding of liability against the defendant as a sanction for its failure to preserve the recorded statement the defendant took from the plaintiff during its investigation of her claim.

Judge’s Ruling

Considering the plaintiff’s claim, Judge Yarbrough stated: “The Court agrees that the loss of the recording caused Plaintiff some prejudice, as it prevented her from obtaining a full transcript of the conversation rather the parts that Ms. Boneo chose to record in her notes. This prejudice, however, is minimal.”

Continuing, Judge Yarbrough provided three reasons for this, as follows:

“First, Plaintiff herself was part of the conversation. Thus, the loss of the recording did not deny her access to the conversation. Plaintiff therefore retains the ability to testify about conversation despite the loss of the recording…Second, Plaintiff was able to depose the adjustor and thereby obtain the adjuster’s testimony about the conversation. Because Plaintiff has independent personal knowledge of this conversation that she was part of and because Plaintiff obtained the adjuster’s notes and testimony about the conversation, Plaintiff has the means to adequately prepare for trial… Third, and most importantly, there is no dispute over the relevant contents of the telephone conversation. Plaintiff testified in her deposition that she agreed with the substance of Ms. Boneo’s testimony regarding the contents of Plaintiff’s statement.”

As a result, Judge Yarbrough stated: “Any prejudice Plaintiff might suffer from not having a recording of the statement is slight and does not justify the only relief Plaintiff requests: a finding of liability against Defendant. Plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence (Doc. 75) is therefore DENIED.”

So, what do you think?  Should the judge have penalized the defendant for losing the recording?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

It’s our last post of the year, so I want to thank all of you for reading our blog all year, attending our webcasts and for all of the support!  Can’t believe we are in the midst of our tenth year and your support has made it possible to keep producing blog posts daily.  In this holiday season, I’m very thankful for your support and also thankful for the love of my wife, Paige, and our kids, Kiley and Carter.  Happy holidays and see you in 2020!

:o)

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 Enters Parties’ Order for Discovery of ESI: eDiscovery Case Law

It’s a rare, if not unheard of, case law post that discusses an agreement between parties, not a dispute!  Just in time for the holidays!  Actually, early last month, but still…  ;o)

In Shotwell, et al. v. Zillow Group Inc., et al., No. C17-1387-JCC (W.D. Wash. Nov. 7, 2019), Washington District Judge John C. Coughenour entered an order regarding the discovery of electronically stored information (“ESI”), pursuant to the parties’ stipulation and proposed order.

The order included the following sections:

  • General Principles, which notes, along with proportionality guidelines per Fed. R. Civ. P. 26(b)(1), that “An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner.”
  • ESI Disclosures, which states that the parties will disclose within thirty days after the Fed. R. Civ. P. 26(f) conference (or later if agreed) custodians, non-custodial data sources, third party data sources and inaccessible data.
  • Preservation of ESI, which notes guidelines for the parties regarding preservation and what they don’t have to preserve (absent a showing of good cause by the requesting party, that is).
  • Privilege, Guidelines for privilege logs and handling of inadvertent disclosures of privileged documents.
  • ESI Discovery Procedures, includes definitions and specifications for image load file formats, production of hard copy documents and production of ESI (including things like handling of exceptions, production of metadata, handling of duplicates, handling of parent-child relationships, format of Bates numbers and handling of third-party subpoenas). The parties agreed to produce the ESI in single-page Group IV TIFF image format using at least 300 DPI print setting, except for certain files (Excel files, spreadsheet files, .CSV files, source code, audio, and video) which would be produced natively with a placeholder image.  There was a table of metadata to be produced associated with the discovery specifications, but it was not included in the order.
  • Miscellaneous, to cover things like conflict between the provisions of the agreement and the Stipulated Protective Order (the Protective Order will take precedent) and reiteration of protection of privilege.

It’s nice to cover an agreement between parties for a change and this discovery agreement is a good example of parties cooperating effectively on a plan for discovery.

So, what do you think?  Do you see any issues with this agreement?  I predict somebody will have at least one!  ;o)  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.

Friday the 13th is Unlucky for the City of New Orleans. Almost. Maybe.: Cybersecurity Trends

In Friday’s post about Norton Rose Fulbright’s 2019 Litigation Trends Annual Survey, one of the most notable trends was that 44 percent of corporate respondents identified Cybersecurity/data privacy as the most likely new source of dispute for their business on the horizon, which was more than four times the next likely sources.  Cybersecurity is also a big challenge for municipalities as we saw on Friday.

According to Forbes (New Orleans Declares State Of Emergency Following Cyber Attack, written by Davey Winder), the City of New Orleans suffered a cybersecurity attack last Friday serious enough for Mayor LaToya Cantrell to declare a state of emergency.

The attack started at 5 a.m. CST on Friday, according to the City of New Orleans’ emergency preparedness campaign, NOLA Ready, managed by the Office of Homeland Security and Emergency Preparedness. NOLA Ready tweeted that “suspicious activity was detected on the City’s network,” and as investigations progressed, “activity indicating a cybersecurity incident was detected around 11 a.m.” As a precautionary measure, the NOLA tweet confirmed, the city’s IT department gave the order for all employees to power down computers and disconnect from Wi-Fi. All city servers were also powered down, and employees told to unplug any of their devices.

During a press conference, Mayor Cantrell confirmed that this was a ransomware attack. A declaration of a state of emergency was filed with the Civil District Court in connection with the incident.

NOLA Ready said that emergency communications had not been affected. Although the “Real-Time Crime Center” had been powered down, public safety cameras were still recording, and incident footage would be available if needed. The police and fire departments continued to operate as usual, and the ability to respond to 911 calls was not impacted.

The ransomware attack that has hit New Orleans follows another that targeted the state of Louisiana in November. Louisiana school district computers were also taken offline, and a state of emergency declared, in response to a ransomware attack in July. It isn’t yet known if the two were connected. However, in August, 23 government agencies were taken offline by a cyber-attack on the State of Texas. Which suggests that U.S. municipalities are firmly in the crosshairs of ransomware threat actors.

Gee, you think?  Apparently, any business is in the crosshairs these days, if they have enough money.  After all, why do hackers hack, if not for the money.

So, what do you think?  Does your organization have a plan if it’s hit by a ransomware attack?  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.

Just in Time for the Holidays! Norton Rose Fulbright’s 2019 Litigation Trends Survey: eDiscovery Trends

No, that’s not Tom O’Connor, it just looks like him… ;o)

Hard to believe it’s the fifteenth edition, but here it is: Norton Rose Fulbright’s 2019 Litigation Trends Annual Survey.  We’ve covered it a few times over the years, but I don’t remember it ever being released this close to the holidays.  Nonetheless, the survey, as always, had some interesting findings.  Let’s take a look.

287 corporate counsel participated in the survey, all respondents were US-based or represent US-based organizations.  The breakdown was as follows: General Counsel 39 percent, Head of Litigation 19 percent, Associate/Deputy/Assistant GC 27 percent, Other 16 percent.

Some notable statistics include:

  • $1.5 million spent on disputes per $1 billion of revenue (median average);
  • 17 percent of respondents expect to increase their team sizes, with only 2 percent predicting a decrease;
  • 66 percent of respondents are using Alternate Fee Agreements (AFAs), but generally for only a minority of spend;
  • 62 percent of respondents now have to balance cross-border discovery with jurisdictional data protection regulations;
  • Greater than 50 percent feel more exposed to cybersecurity and data protection issues, while 11 percent feel less exposed (the second number is the one that surprises me);
  • 35 percent expect volume of disputes to rise moving forward, while only 9 percent expect the volume to decrease (a 26 percent net, which is a rise of 9 percent over 2018 and the third year in a row that the net went up);
  • The most common types of litigation pending against respondent companies over the past 12 months were Labor/Employment 49 percent (up 7 percent from 2018), Contracts 42 percent (up 1 percent), Personal Injury 18 percent (down 1 percent) and IP/Patents 18 percent (up 3 percent);
  • 44 percent of respondents identified Cybersecurity/data privacy as the most likely new source of dispute for their business on the horizon (more than four times the next likely sources: Regulatory and Climate/environment at 10 percent each).

That’s just a sampling of numbers, you can go to the Norton Rose Fulbright site here to download your own copy of the free report.

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

Away CEO Resigns After “Slack Bullying” Revealed in Report from The Verge: eDiscovery Trends

“Yes”, you say, “this is an interesting story, but what does it have to do with eDiscovery?”  And, why is there a picture of Yogi Berra on this story?  Read on and you’ll find out.

After an article (Emotional Baggage, written by Zoe Schiffer) by The Verge last week exposed a story where ex-employees claimed Away, a luggage startup hid a “toxic work culture”, the travel brand announced it hired the Lululemon executive Stuart Haselden as the company’s new CEO to replace current CEO Steph Korey, who is stepping down just four days after the article.

Like many fast-growing startups, Away’s workplace is organized around digital communication. It’s how employees talk, plan projects, and get feedback from co-workers and higher-ups. Away used the popular chat app Slack, which has the motto ‘where work happens.”  Away embraced Slack in more ways than one — its co-founder, Jen Rubio, is engaged to its CEO Stewart Butterfield — but it took things further than most startups. Employees were not allowed to email each other, and direct messages were supposed to be used rarely (never about work, and only for small requests, like asking if someone wanted to eat lunch). Private channels were also to be created sparingly and mainly for work-specific reasons, so making channels to, say, commiserate about a tough workday was not encouraged.

The rules had been implemented in the name of transparency, but employees say they created a culture of intimidation and constant surveillance. Once, when a suitcase was sent out with a customer’s incomplete initials stenciled onto the luggage tag, Korey said the person in charge must have been “brain dead” and threatened to take over the project.  Korey often framed her critiques in terms of Away’s core company values: thoughtful, customer-obsessed, iterative, empowered, accessible, in it together. Empowered employees didn’t schedule time off when things were busy, regardless of how much they’d been working. Customer-obsessed employees did whatever it took to make consumers happy, even if it came at the cost of their own well-being.

An example of that was the Slack message that Korey sent the day before Valentine’s Day in 2018, when she decided she was going to stop the team from taking any more time off. In a series of Slack messages that began at 3AM, she said, “I know this group is hungry for career development opportunities, and in an effort to support you in developing your skills, I am going to help you learn the career skill of accountability. To hold you accountable…no more [paid time off] or [work from home] requests will be considered from the 6 of you…I hope everyone in this group appreciates the thoughtfulness I’ve put into creating this career development opportunity and that you’re all excited to operate consistently with our core values.”  Four days later, when she noticed two managers still had time off on the calendar, she was livid. “If you all choose to utilize your empowerment to leave our customers hanging…you will have convinced me that this group does not embody Away’s core values,” she said.  In both cases, the emphasis was Korey’s.

Throughout, the article talks about how overworked the small customer team was in keeping up with customer emails and how responses from Away management (especially Korey) continued to drive and berate them.

Away indicated that the plan to change its CEO had been in the works for months.  For her part, Korey posted a message on Twitter last Friday (before the CEO announcement) admitting to her “mistakes” and promising that the company “will continue to work to improve.” As for those mistakes, she notes: “At times, I expressed myself in ways that hurt the team. … I was appalled and embarrassed reading [the messages]. … I’m sincerely sorry for what I said and how I said it. It was wrong, plain and simple.”

The follow-up article from The Verge that discussed Korey’s resignation also discussed the use of Slack as part of the story, noting that “executives may begin rethinking the use of Slack. The kind of type-first, think-later style of communication that it inspires is categorically different than email, the technology that preceded it in companies like Away.”

So, what does this article have to do with eDiscovery?  It illustrates how communications in organizations are changing these days.  While the communication policies at Away are an extreme example, they certainly illustrate how communication is about much more than email these days – communications with colleagues via text and other messaging apps like Skype and Slack are routine in organizations these days as those messages are often the quickest way to get a response versus wading through a sea of emails.  When it comes to emails and urgent communications, as Yogi Berra once said about a popular restaurant in New York, “nobody goes there anymore, it’s too crowded.”  And, all of that data is discoverable.

So, what do you think?  Does your organization use Slack or another messaging app for internal communications?  Please share any comments you might have or if you’d like to know more about a particular topic.  It’s never over ’til it’s over.  ;o)

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.

Today’s Webcast Will Help You Learn about Important eDiscovery Developments for 2019: eDiscovery Webcasts

2019 was another busy year from an eDiscovery, cybersecurity and data privacy standpoint.  So busy, we couldn’t fit it all into a single webcast!  Nonetheless, what do you need to know about those important 2019 events?  Today’s webcast will discuss what you need to know about important 2019 events and how they impact your eDiscovery, data privacy and cybersecurity efforts.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast 2019 eDiscovery Year in Review.  In this one-hour webcast that’s CLE-approved in selected states, we will discuss key events and trends in 2019, what those events and trends mean to your discovery practices and provide our predictions for 2020. Key topics include:

  • How Much Data is Being Transmitted Every Minute on the Internet in 2019
  • What a Lawyer’s Notification Duty When a Data Breach Occurs
  • General Data Protection Regulation (GDPR) and Data Privacy Fines
  • Biometric Security and Data Privacy Litigation
  • Cell Phone Passwords and the Fifth Amendment
  • How Organizations Are Doing on Compliance with the California Consumer Privacy Act (CCPA)
  • Social Media and Judges Accepting “Friend” Requests from Litigants
  • How #metoo and Investigations are Impacting eDiscovery within Organizations
  • Whether Emojis Are the Next eDiscovery Challenge
  • The Challenge to Obtain Significant Spoliation Sanctions under the New Rule 37(e)
  • Whether Lawyers Are “Failing” at Cybersecurity?
  • Outside Hackers vs. Internal Employees As Cybersecurity Threat
  • Sanctions Resulting from Inadvertent Disclosure of Privileged Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! 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 key events and trends in 2019 can affect your eDiscovery practice in 2020, this webcast is for you!

So, what do you think?  Do you have FOMO (fear of missing out) on important info for 2019?  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.