Posts By :

Tom O'Connor

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Tuesday, the second part was last Wednesday and the third part was last Friday, here’s the fourth and final part.

Conclusions

So, is all this controversy over ESI format legitimate? Or is it, in the words of Bob Eisenberg,

“ … a cocktail of the dubious, bogus and unfounded.  A stew of junk or half-baked technical science and disingenuous advocacy, seeking to rationalize the unreasonable, while tilting that proverbial playing field as far as possible in support of the defense …”.

You make the call.

Regardless, we’re certainly seeing more cases where form of production is figuring prominently in court rulings.  Here are some cases covered by eDiscovery Daily in just the past couple of years regarding form of production disputes, some which granted requests for native files and metadata, others which did not:

Finally, there is one terrific resource regarding form of production that everyone should read and it’s (once again) from renowned eDiscovery expert Craig Ball.  Craig’s Lawyer’s Guide to Forms of Production discusses all of the format options available to attorneys, the pros and cons of each, how to address considerations such as Bates numbers and redactions, and it even includes a sample Request for Production to help guide attorneys on requesting ESI.  Check it out!

So, what do you think?  Do you prefer image-based productions or native file productions?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was Tuesday and the second part was Wednesday, here’s the third part.

Objections to Native File Production and Counter-Arguments

So, what are the objections most commonly raised by producing parties? I’ll discuss the standard objections below and after that I’ll mention some counter arguments to those objections, including several that have been raised recently by renowned eDiscovery expert Craig Ball.

The objections to native file production we see most often are the following:

  1. The Defense has already created a database containing all documents to be produced (often in related litigation) and retrieval of native files would place an added cost on the producing party.
  2. Redaction is unduly costly and even impossible with some native files
  3. It is unduly burdensome and costly to require an entirely new review of relevant documents necessary to produce native files
  4. Native files cannot be Bates numbered, making them less useful for presentation activities like depositions and trial.
  5. Federal Rule of Civil Procedure 34 does not specifically call for production in native format
  6. Image-based productions have been accepted in many courts
  7. Static images are equally useful for analysis purposes as native files

The response to most of these objections is first that they are not “specific” as required by Rule 34 and second that they are generally untrue. TIFF files are not as useful as native files in that they are not searchable, contain no metadata from the original files and are not at all conducive to the use of TAR or analytics software for searching.

And more specifically, the notes to the FRCP point out that:

[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

FRCP Rule 34, Committee Notes on Rules – 2006 Amendment

The latter objection was covered thoroughly by Craig Ball in a blog post of his entitled Degradation: How TIFF+ Disrupts Search. In brief, Craig notes that TIFF load file inaccuracies can reduce accurate searchability (and I routinely see problems in 2/3 of the load files I am asked to investigate, even from large experienced vendors) and further that the suppression of comments or their merger into other portions of text can also severely inhibit accurate searching.

Even more interesting is an analysis Craig performed on the difference in file sizes between TIFF and some standard native files which result in increased costs to requesting parties who will be hosting the documents in a web-based service. In a blog post entitled Don’t Let Plaintiffs’ Lawyers Read This!!, Craig noted that since TIFF images of native files are much larger than the native files and most most eDiscovery service providers are “In the Cloud” and charge by data volume, then a production format that increases data size 15, 20 or 25 times is a violation of the proportionality principle.

Seem far-fetched? Well as Craig notes in his post “let’s do the math” and the math is clear. So clear that one judge in one recent case agreed with him and ordered native file production despite the defendants raising a number of the objections above and disputing Craig’s testimony about file size.

With regard to the objection above raised by producing parties that native files cannot be Bates numbered, making them less useful for depositions, trial and other events where evidence is presented, there is an easy solution to that issue.  Most parties that produce native files generate a file level number for each document that is used to track productions at the document level (essentially a document-level Bates number).  When it comes time to use some of those documents in evidence, they can be converted to image form and the page numbers can be added as a prefix (e.g., PROD00000123-0001, PROD00000123-0002, etc., where “PROD00000123” references the document-level Bates number that was used to track the documents produced.  Keep in mind that only a fraction of the documents produced (often a very small fraction) are used in evidence presentation.  Native file productions don’t eliminate the ability to refer to specific pages within documents when presenting evidence.

We’ll publish Part 4 – Conclusions – next Monday.

So, what do you think?  Do you prefer image-based productions or native file productions? As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was yesterday, here’s the second part.

Rule 34(b) and Form of Production

As I’ve said before, “read the rule book shankapotomous.”  So, let’s look at exactly what the rules say about this issue.  Federal Rules of Civil Procedure (FRCP) Rule 34, section (b) reads as follows:

(b) Procedure.

…..(1) Contents of the Request. The request:

……….(A) must describe with reasonable particularity each item or category of items to be inspected;

……….(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

……….(C) may specify the form or forms in which electronically stored information is to be produced.

…..(2) Responses and Objections.

……….(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

……….(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

……….(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

……….(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

……….(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

……………(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

……………(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

……………(iii) A party need not produce the same electronically stored information in more than one form.

The Rule above seems to make clear three salient points:

  1. The requesting party gets to specify the form of the production
  2. The responding party gets to object and offer a different format IF they can offer a specific set of objections with the reasons why they need to use an alternate format
  3. If neither side specifies a format, the default format is native files.

We’ll publish Part 3 – Objections to Native File Production and Counter-Arguments – on Friday.

So, what do you think?  Do you prefer image-based productions or native file productions?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Legal disputes in the civil arena typically succeed or fail these days as a result of the practice of eDiscovery.  FRCP Rule 26(f), which provides for a conference of the parties and planning for discovery. This conference was designed to speed up the discovery process but more and more it has become bogged down with disputes over one particular section in that rule, (3)(C), which states that the plan shall contain “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;”.

One plaintiffs side commentator, Atty Robert Eisenberg, has been particularly strident in his criticism of the arguments on the forms of production.  Bob is well known in the eDiscovery community as a consultant and educator having been instrumental in forming the both the Georgetown Advanced Ediscovery Institute and the  Ediscovery Training Academy as well as currently being the Program Director at the Cleveland-Marshall College of Law’s (CMLaw) eDiscovery Professional Certificate Program.

Bob stated in an article from last year on my TechnoGumbo blog that defense firms

“ … in virtually every litigation (no matter how varied the types of ESI; no matter how limiting to plaintiffs) [strive] to assure that records produced in discovery are delivered by defendants to plaintiffs in an imaged-based format (Tiff or PDF) with load files for searchable text and metadata; and, practically never provided (except for a tiny proportion that are considered worthless as evidence in image format) as files produced in the manner in which they have been created and stored; that is, in their ultimately most utilizable incarnation; in native form.”

Why do so many producing parties offer load files with static images and text instead of native files?  Often it has to do with perceived, or at least argued, shortcomings of native files.  And defense firms commonly argue that image-based productions are actually cheaper than native file productions because they save plaintiffs the cost of processing and are comparable in utility to native files.

In this paper, we will take a look at the battle over how ESI is produced, including:

  1. Rule 34(b) and Form of Production
  2. Objections to Native File Production and Counter-Arguments
  3. Conclusions

We’ll publish Part 2 – Rule 34(b) and Form of Production – tomorrow.

So, what do you think?  Do you prefer image-based productions or native file productions?  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.

Mobile Collection: It’s Not Just for iPhones Anymore, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday, the second part was Monday and the third part was Wednesday, here’s the fourth and final part.

Conclusions

So, when you think of smart phone collection be sure to ask what OS you going to encounter.  Android phones are market leaders both here in the US and worldwide and offer corporate archiving solutions that are second to none. Your litigation opponent might actually have the droid you are looking for.

And, why is that important?  Because we’re seeing more cases where mobile device data is relevant than ever.  As I mentioned in my Millennials series last summer, Americans send about 8.5 billion texts every day!  Texts and other mobile data are routinely relevant in just about every type of litigation case.

And, we’re certainly seeing more cases where mobile device data is figuring prominently in court rulings.  Here are some cases covered by eDiscovery Daily in just the past year regarding mobile devices and (in some cases) consideration of sanctions for failing to preserve mobile device data:

The good news is that you’ve now learned about some terrific resources to preserve that mobile device data and hopefully avoid sanctions in your own cases, regardless of whether the device is Apple or Android.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Mobile Collection: It’s Not Just for iPhones Anymore, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy!  And, BTW, Happy Birthday to my beautiful wife Paige! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday and the second part was Monday, here’s the third part.

Google Vault and the Emphasis of Android Devices

During the same time period as when Google TakeOut hit the market, Google also created Google Vault in 2012, their web tool for preservation of data in the Google Suite. It’s easy and inexpensive but only covers some email archiving, searching, and exporting capabilities for Gmail. Unlike iOS however it has 3rd party add-ons that can securely archive Gmail messages, Gmail Notes, Appointments and some Calendar Items.

A Gartner review of many of these products notes how they quickly and easily integrate with Google Apps to make up for the deficiencies in Vault and allows archived data to be stored into one unified message archive. Some of them even can search, publish, and perform eDiscovery from the archive, which is in one central location.

So perhaps not the quick and easy solution offered by iTunes or iOS backup and, like O365, based on a web archive. But still a relatively easy and to create archives and now given the arrival of Google One, a variety of methods exist for handling Android smartphone data.

Why is all this emphasis on Android phones important? As I noted in the Introduction, it’s because Android market share is now bigger than Apple everywhere in the world. Again, while Apple iOS holds a large share of the smartphone operating systems’ market within the United States, Google Android remains the market leader with a 51.8% share as of September 2019.  Worldwide, Android has a 76% market share with iOS far behind at 22%. (Source, IDC Nov 2019)  Clearly, you’re not only as likely to need to preserve Android devices as you are iPhones, you’re more likely, possibly much more likely, to need to do so.

Apple, of course, registers strongly in actual smartphone sales because they sell the phone AND the operating system unlike Android systems which are fragmented among multiple phone manufacturers. But even here, Apple is not the market leader. Although their share of smartphone users in the US has risen roughly 20% since early 2012 and stood at 42% in Q3 2019, the combination of all Android phones at that time was 47%, led by Samsung with 25%. And that Apple growth surge in the United States goes against a global trend that has seen their market share of smartphone shipments drop to around 10 percent.

Samsung, known for consumer products worldwide including mobile devices and home entertainment systems, is the global leading smartphone vendor. Since 2012, the South Korean company has held a share of 20 to 30 percent in the smartphone market. In 2018, they shipped more than 292 million smartphones worldwide and by the third quarter of 2019, Samsung’s global market share was 21.8%.

Apple is not one to take these statistics lightly and is responding with a new cheap phone. Channel manufacturers, reported to be Hon Hai Precision Industry, Pegatron Corp. and Wistron Corp, are currently preparing their production lines and planning to start mass production next month with an official release expected in March.

A cheaper offering may help Apple compete better in price-competitive phone markets such as India and China. India, in particular, presents a substantial challenge for Apple which has a high number of Android rivals coming in at prices less than $200.  Still, Apple has set a goal of shipping more than 200 million units in 2020 and recovering some of that lost market share.

We’ll publish Part 4 – Conclusions – on Friday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Mobile Collection: It’s Not Just for iPhones Anymore, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday, here’s the second part.

Mobile Collection and Preservation, Courtesy of Craig Ball

As I mentioned in the Introduction, Craig Ball has provided a lot of terrific information regarding preservation and collection of data from mobile devices.  These are terrific resources that everyone who deals with discovery of mobile devices should be aware of.  His original discussion about preservation of cell phone data was a 2017 article called Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional and, as the title denotes, dealt with iPhones. It proposed a wonderfully simple way to preserve iPhone data using iTunes. Although it did not preserve email, content from iTunes or iBooks, some data stored in iCloud and data from Apple Pay, Activity, Health or Keychain. Additionally, it offered several advantages in Craig’s mind to an iCloud backup, primarily that it took less time and you could choose not to encrypt the backup.

I disagreed with the last point but it’s a minor quibble and not worth discussing here because, well, all good things must come to an end and Apple last year decided to end iTunes. So Craig wrote another article entitled How Will We Back Up iPhones Without iTunes? in which he noted the good thing that ended had morphed into a better thing. As he explained, “In fact, preserving iPhones may be easier for Mac users as Apple is shifting the backup tool into the Finder app.  You’ll do exactly the same thing I wrote about but Mac users with Catalina won’t even need to use iTunes to preserve mobile evidence.  It’ll be built in.”

In between those two articles, Craig also wrote a piece called Mobile to the Mainstream which discussed all the various data types on a smart phone and provided a Mobile Evidence Scorecard, which rated the data types by ease of collection, ease of review, potential relevance and whether they should be part of a routine backup collection process. Everyone should have this card.  Here is a representation of it, split into a front and back section.

And, last but not least, Craig compiled all of his accumulated wisdom about mobile evidence (well, iPhone mobile evidence) into a white paper called Mobile to the Mainstream: Preservation and Extraction of iOS Content for E-Discovery. I should note that the title violated one of Craigs most often discussed issues with searching ESI.  But search is also a topic for another day.

Craig finally turned to Androids last fall. Although that was actually not his first mention of the “other” OS, that came in a 2015 paper Opportunities and Obstacles: E-Discovery from Mobile DevicesBut a column in this venue pointed out the most recent advances in Android collection.

Called Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices, Doug Austin noted how Craig discussed Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In that discussion, Craig stated: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.”

Now as a character in the movie Independence Day once said …. “that’s not ENTIRELY correct.” Craig was referring to Google One, the recent addition intended to improve archiving capabilities.  But as Google notes on their own website. “We’ve taken the standard Android backup (my emphasis added) that includes texts, contacts, and apps and we’re giving you even more.”

The new automatic phone backup also addresses photos, videos, and multimedia messages (MMS) and it can all be done from a Google One app.

But backups did exist before this. Craig himself mentions Google TakeOut, which has long allowed users of Google products, such as YouTube and Gmail, to export their data to a downloadable archive file. Started with some basic services in 2011, TakeOut expanded to include Gmail and Google Calendar in 2013. By 2016, Google had grown the service to include search history and Wallet details and since then, they have also added Google Hangouts to the Takeout service. In all cases, TakeOut does not delete user data automatically after exporting.

We’ll publish Part 3 – Google Vault and the Emphasis of Android Devices – on Wednesday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

Mobile Collection: It’s Not Just for iPhones Anymore

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Most of the talk about retrieving data from mobile devices has centered on iPhones and other Apple devices.  And no small reason for that is that most of the discussion on the topic has come from Craig Ball, who is, like many attorneys, an Apple guy.

But, iPhones are not the only mobile devices for which data collection is necessary.  In fact, they’re not even the most popular devices – by far.  Android market share is now bigger than Apple everywhere in the world. Although Apple iOS holds a large share of the smartphone operating systems’ market within the United States, Google Android remains the market leader with a 51.8% share as of September 2019.  Worldwide, Android has a 76% market share with iOS far behind at 22% (Source, IDC Nov 2019)

So, you’re just as likely – even more likely – to need to collect data from Android devices than from Apple devices, especially outside the US.

With that in mind, in this paper, we will take a look at mobile device collection topics, including:

  1. Mobile Collection and Preservation, Courtesy of Craig Ball
  2. Google Vault and the Emphasis of Android Devices
  3. Conclusions

We’ll publish Part 2 – Mobile Collection and Preservation, Courtesy of Craig Ball – next Monday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Six

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday, the third part was last Friday, the fourth part was Monday and the fifth part was Wednesday, here’s the sixth and final part.

Conclusions

The rule requires that the designated witness must be able to testify to the knowledge of the entire company on every area designated in your deposition notice. Further, the corporation must produce as many deponents as is necessary to respond to the areas of inquiry set out in the deposition notice. So, the notice should be carefully crafted and specific as to areas of inquiry.

On the other side, the corporation may designate more than one deponent, but it must clearly identify them and describe the areas on which each one will testify.  The deponents need not have firsthand knowledge of the events in question, but if they do not the corporation must provide them with the information necessary to provide “complete, knowledgeable, and binding answers on behalf of the corporation.”

Perhaps the most comprehensive decision on depositions of corporate defendants under Rule 30(b)(6) is QBE Insurance Corporation v. Jordan Enterprises, 277 F.R.D. 676, 687 (2012). In his opinion, Magistrate Judge Johnathon Goodman went beyond the ruling in the case and his decision set forth 39 rules for corporate depositions. They are included below for your reference and consideration.

39 Rules for 30(b)(6) Depositions:

  1. The rule’s purpose is to streamline the discovery process. In particular, the rule serves a unique function in allowing a specialized form of deposition. Great Am. Ins. Co. v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 539 (D.Nev.2008).
  2. The rule gives the corporation being deposed more control by allowing it to designate and prepare a witness to testify on the corporation’s behalf. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.1996).
  3. It is a discovery device designed to avoid the bandying by corporations where individual officers or employees disclaim knowledge of facts clearly known to the corporation. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 361.
  4. Therefore, one purpose is to curb any temptation by the corporation to shunt a discovering party from “pillar to post” by presenting deponents who each disclaim knowledge of facts known to someone in the corporation. Great Am., 251 F.R.D. at 539. Cf. Ierardi v. Lorillard, Inc., No. 90–7049, 1991 WL 66799, *2 (E.D.Pa. Apr. 15, 1991), at *2 (without the rule, a corporation could “hide behind the alleged ‘failed’ memories of its employees”).
  5. Rule 30(b)(6) imposes burdens on both the discovering party and the designating party. The party seeking discovery must describe the matters with reasonable particularity and the responding corporation or entity must produce one or more witnesses who can testify about the corporation’s knowledge of the noticed topics. Great Am., 251 F.R.D. at 539.
  6. The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents. A Rule 30(b)(6) designee presents the corporation’s position on the listed topics. The corporation appears vicariously through its designees. Taylor, 166 F.R.D. at 361.
  7. A corporation has an affirmative duty to provide a witness who is able to provide binding answers on behalf of the corporation. Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1147 (10th Cir.2007).
  8. Thus, a Rule 30(b)(6) witness need not have personal knowledge of the designated subject matter. Ecclesiastes, 497 F.3d at 1147; see generally Federal Civil Rules Handbook, 2012 Ed., at p. 838 (“the individual will often testify to matters outside the individual’s personal knowledge”).
  9. The designating party has a duty to designate more than one deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or subpoena. Ecclesiastes, 497 F.3d at 1147; Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C.1989) (duty to substitute another witness as a designee once the initial designee’s deficiencies become apparent during the deposition); Alexander v. F.B.I., 186 F.R.D. 137, 142 (D.D.C.1998).
  10. The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition. Nevertheless, many lawyers issue notices and subpoenas which purport to require the producing party to provide “the most knowledgeable” witness. Not only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule. As noted, the witness/designee need not have any personal knowledge, so the “most knowledgeable” designation is illogical. PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894–95 (7th Cir.2004) (rejecting argument that trial court should not have credited the testimony of a witness who lacked personal knowledge because the witness was a 30(b)(6) witness and “was free to testify to matters outside his personal knowledge as long as they were within the corporate rubric”). Moreover, a corporation may have good grounds not to produce the “most knowledgeable” witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process or the corporation might want to save the witness for trial. From a practical perspective, it might be difficult to determine which witness is the “most” knowledgeable on any given topic. And permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge. For example, if the rule authorized a demand for the most knowledgeable witness, then the requesting party could presumably obtain sanctions if the witness produced had the second most amount of knowledge. This result is impractical, inefficient and problematic, but it would be required by a procedure authorizing a demand for the “most” knowledgeable witness. But the rule says no such thing.
  11. Although the rule is not designed to be a memory contest, the corporation has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects. Great Am., 251 F.R.D. at 540.
  12. The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally known to the designee or to matters in which the designated witness was personally involved. Wilson v. Lakner, 228 F.R.D. 524 (D.Md.2005).
  13. The duty extends to matters reasonably known to the responding party. Fowler v. State Farm Mut. Auto. Ins. Co., No. 07–00071 SPK–KSC, 2008 WL 4907865, at *4 (D.Haw.2008).
  14. The mere fact that an organization no longer employs a person with knowledge on the specified topics does not relieve the organization of the duty to prepare and produce an appropriate designee. Id.; Great Am., 251 F.R.D. at 540; Taylor, 166 F.R.D. at 362; cf. Ecclesiastes, 497 F.3d at 1148 (in “one common scenario,” the corporation designates individuals who lack personal knowledge “but who have been educated about it”) (emphasis added).
  15. Faced with such a scenario, a corporation with no current knowledgeable employees must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge. Great Am., 251 F.R.D. at 540; Federal Civil Rules Handbook, p. 838; see generally Wilson, 228 F.R.D. at 529 (preparation required from myriad sources, including “documents, present or past employees, or other sources”).
  16. In other words, a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary. Wilson, 228 F.R.D. at 529.
  17. As a corollary to the corporation’s duty to designate and prepare a witness, it must perform a reasonable inquiry for information that is reasonably available to it. Fowler, 2008 WL 4907865 at *5; Marker, 125 F.R.D. at 127.
  18. A corporate designee must provide responsive answers even if the information was transmitted through the corporation’s lawyers. Great Am., 251 F.R.D. at 542.
  19. In responding to a Rule 30(b)(6) notice or subpoena, a corporation may not take the position that its documents state the company’s position and that a corporate deposition is there-fore unnecessary. Great Am., 251 F.R.D. at 540.
  20. Similarly, a corporation cannot point to interrogatory answers in lieu of producing a live, in-person corporate representative designee. Marker, 125 F.R.D. at 127.
  21. Preparing a Rule 30(b)(6) designee may be an onerous and burdensome task, but this consequence is merely an obligation that flows from the privilege of using the corporate form to do business. Great Am., 251 F.R.D. at 541; see also Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D.Mass.2001) (review required even if “documents are voluminous and the review of those documents would be burdensome”).
  22. Not only must the designee testify about facts within the corporation’s collective knowledge, including the results of an investigation initiated for the purpose of complying with the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and opinions. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 362 (designee presents corporation’s “position,” its “subjective beliefs and opinions” and its “interpretation of documents and events”).
  23. The rule implicitly requires the corporation to review all matters known or reasonable available to it in preparation for a Rule 30(b)(6) deposition. Wilson, 228 F.R.D. at 529 (“good faith effort” to “find out the relevant facts” and to “collect information, review documents and interview employees with personal knowledge”).
  24. If a corporation genuinely cannot provide an appropriate designee because it does not have the information, cannot reasonably obtain it from other sources and still lacks sufficient knowledge after reviewing all available information, then its obligations under the Rule cease. Calzaturficio, 201 F.R.D. at 39; see also Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 76 (D.Neb.1995).
  25. If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely designate additional, supplemental witnesses as substitute deponents. Alexander, 186 F.R.D. at 142; Marker, 125 F.R.D. at 127.
  26. The rule provides for a variety of sanctions for a party’s failure to comply with its Rule 30(b)(6) obligations, ranging from the imposition of costs to preclusion of testimony and even entry of default. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 269 (2d Cir.1999) (affirming order precluding witness five witnesses from testifying at trial); see also Taylor, 166 F.R.D. at 363 (“panoply of sanctions”); Great Am., 251 F.R.D. at 543 (“variety of sanctions”).
  27. The failure to properly designate a Rule 30(b)(6) witness can be deemed a nonappearance justifying the imposition of sanctions. (Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 198 (5th Cir.1993)). See also Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 305 (3d Cir.2000) (a 30(b)(6) witness who is unable to give useful information is “no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it”).
  28. When a corporation’s designee legitimately lacks the ability to answer relevant questions on listed topics and the corporation cannot better prepare that witness or obtain an adequate substitute, then the “we-don’t know” response can be binding on the corporation and prohibit it from offering evidence at trial on those points. Phrased differently, the lack of knowledge answer is itself an answer which will bind the corporation at trial. Fraser Yachts Fla., Inc. v. Milne, No. 05–21168–CIV–JORDAN, 2007 WL 1113251, at *3 (S.D.Fla. Apr. 13, 2007); Chick–fil–A v. ExxonMobil Corp., No. 08–61422–CIV, 2009 WL 3763032, at *13 (S.D.Fla. Nov. 10, 2009); see also Ierardi, 1991 WL 66799 at *3 (if party’s 30(b)(6) witness, because of lack of knowledge or failing memory, provides a “don’t know” answer, then “that is itself an answer” and the corporation “will be bound by that answer”).
  29. Similarly, a corporation which provides a 30(b)(6) designee who testifies that the corporation does not know the answers to the questions “will not be allowed effectively to change its answer by introducing evidence at tri-al.” Ierardi v. Lorillard, No. 90–7049, 1991 WL 158911 (Aug. 13, 1991) (E.D.Pa. 1991, at *4).
  30. The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).
  31. If the corporation pleads lack of memory after diligently conducting a good faith effort to obtain information reasonably available to it, then it still must present an opinion as to why the corporation believes the facts should be construed a certain way if it wishes to assert a position on that topic at trial. Taylor, 166 F.R.D. at 362.
  32. There is nothing in the rule which prohibits a corporation from adopting the testimony or position of another witness in the case, though that would still require a corporate designee to formally provide testimony that the corporation’s position is that of another witness. Fraser Yachts, 2007 WL 1113251, at *3.
  33. The rule does not expressly require the designee to personally review all information available to the corporation. So long as the designee is prepared to provide binding answers under oath, then the corporation may prepare the designee in whatever way it deems appropriate—as long as someone acting for the corporation reviews the available documents and information. Reichhold, Inc. v. U.S. Metals Ref. Co., No. 03–453(DRD), 2007 WL 1428559, at *9 (D.N.J. May 10, 2007) (the rule “does not require that the corporate designee personally conduct inter-views,” but, instead, requires him to testify to matters known or reasonably available to the corporation).
  34. Rule 30(b)(6) means what it says. Corporations must act responsibly. They are not permitted to simply declare themselves to be mere document-gatherers. They must produce live witnesses who have been prepared to provide testimony to bind the entity and to explain the corporation’s position. Wilson, 228 F.R.D. at 531; Great Am., 251 F.R.D. at 542 (entitled to “corporation’s position”).
  35. Despite the potentially difficult burdens which sometimes are generated by Rule 30(b)(6) depositions, the corporation is not without some protection, as it may timely seek a protective order or other relief. F.T.C. v. Noble Metals Int’l, Inc., 67 F.3d 766, 772 (9th Cir.1995).
  36. Absolute perfection is not required of a 30(b)(6) witness. The mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation. Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J.2008); Chick–fil–A, 2009 WL 3763032, at *13 (explaining that the corporation need not produce witnesses who know every single factonly those relevant and material to the incidents underlying the lawsuit).
  37. A corporation cannot be faulted for not interviewing individuals who refuse to speak with it. Costa, 254 F.R.D. at 191.
  38. There are certain cases, such as subrogation cases or those involving dated facts, where a corporation will not be able to locate an appropriate 30(b)(6) witness. In those types of scenarios, the parties “should anticipate the unavailability of certain information” and “should expect that the inescapable and unstoppable forces of time have erased items from … memory which neither party can retrieve.” Barron v. Caterpillar, Inc., 168 F.R.D. 175, 178 (E.D.Pa.1996) (concluding that corporation did not act in bad faith when its designee did not remember events from almost thirty years earlier).
  39. A corporation which expects its designee to be unprepared to testify on any relevant, listed topic at the corporate representative deposition should advise the requesting party of the designee’s limitations before the deposition begins. Calzaturficio, 201 F.R.D. at 39.

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

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday, the third part was last Friday and the fourth part was Monday, here’s the fifth part.

Specific Strategies to Consider

Some specific strategies to consider include:

Timing of the Deposition

As mentioned previously, strategic timing of the deposition can help streamline the issues and avoid future claims that discovery sought against the organization is a fishing expedition. To this point, it may be helpful to prepare an issue outline before preparing the deposition notice and using it to decide when to conduct the 30(b)(6) depo.

Do not agree to a question-by-question or objection-by-objection format

Some courts have ruled that a defendant should produce a Rule 30(b)(6) witness to testify on objectionable topics and counsel for the witness could then interpose objections on a question-by-question basis. Other courts have rejected this suggestion, calling it:

  1. A veiled attempt to depose the other party’s attorney. & Exch. Comm’n v. Merkin, 283 F.R.D. 689 (S.D. Fla. 2012), objections overruled, 283 F.R.D. 699 (S.D. Fla. 2012)
  2. An impermissible intrusion into work product & Exch. Comm’n v. SBM Inv. Certificates, Inc., Civil Action No. DKC 06-0866 (D. Md. Mar. 2, 2012)
  3. A violation of privileges and other protections. SEC v Rosenfeld, 97 CIV. 1467 (RPP), 1997 WL 576021, at *2-4 (S.D. Fla. April 18, 2002).

Seeking information about allegations in the complaint

Many courts have ruled that Rule 30(b)(6) depositions are not the proper vehicle for discovering facts about the allegations in a civil enforcement complaint, commenting that contention interrogatories are a more appropriate vehicle for fact discovery. CF, Equal Employment Opportunity Commission v. Texas Roadhouse, Inc., No. 11-11732-DJC, 2014 WL 4471521, (D. Mass. Sept. 9, 2014) and Equal Employment Opportunity Commission v. American International Group, No. 93 CIV 6390 (PKL) RLE, 1994 WL 376052 (S.D.N.Y. July 18, 1994).

Seeking discovery of third-party information

Defendants in an enforcement investigation usually recognize the State has gathered facts from third parties as part of their investigation. Rather than invest effort into written discovery or third-party depositions, some defendants attempt to elicit the State’s work product through 30(b)(6) depositions.

Topics that seek information regarding the knowledge of third parties, such as complaint information, persons and documents identified in initial disclosures, or information dealing with the substance of a third party’s knowledge, are improper for Rule 30(b)(6) purposes. If a defendant requires such information, it should conduct written discovery, subpoena the complaint agency, interview or even depose such third parties.

Protection of privileges

As noted previously, many cases discuss protection of the work product privilege. But other privileges may be at risk as well, including:

  1. Common Interest Privilege
  2. Deliberative Process Privilege
  3. The Law Enforcement Privilege
  4. State Secrets Privilege

Depositions of agencies

Depositions of government agencies are explicitly permitted under Rule 30(b)(6), but if the agency happens to be serving as trial counsel in an enforcement action and also conducted or supervised the underlying investigation, many courts refuse to permit the deposition.

The risk is that work product and other privileges overlapping as case facts become mixed with trial counsel’s mental processes and legal strategies. Although the general rule is that defendants have an absolute right to depose the government under Rule 30(b)(6), some courts have carved out exceptions and it is best to research the law in your jurisdiction.

Depositions of opposing counsel

The leading case on the standards for deposing opposing counsel is the Eighth Circuit case of Shelton v. American Motors Corporation. 805 F.2d 1323 (8th Cir. 1986) in which the court reaffirmed the general disapproval of attempts to depose opposing counsel. The Shelton court established a three-part test for situations in which a deposition of opposing counsel is sought, stating that the moving party must establish that:

  • no other means exist to obtain the sought information;
  • the information is relevant and non-privileged; and
  • the information is crucial in the case.

Deposing the plaintiff

Several leading cases have granted protective orders to the government or denied defense motions to compel in cases where defendants have attempted to depose enforcement plaintiffs under Rule 30(b)(6).

These include:

Securities and Exchange Commission v. Rosenfeld, op cit

Securities and Exchange Commission v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003).

Securities and Exchange Commission v. SBM Investment Certificates, Inc., D. Maryland, Civil Action No. DKC 2006-0866 (D. Md. Feb. 23, 2007)

Equal Employment Opportunity Commission v. Evans Fruit Company, Inc., 2:2011cv03093, (E.D. Wash. 2013)

Other cases have allowed Rule 30(b)(6) depositions of enforcement authorities to proceed as noticed, including.

Securities Exchange Commission v. Kramer, CASE NO.: 8:09-cv-455-T-23TBM (M.D. Fla. Apr. 1, 2011)

Securities and Exchange Commission v. Merkin, Case No. 11-23585-CIV, United States District Court, S.D. Florida, Miami Division. 3012 

Securities and Exchange Commission v. McCabe, No. 2:2013cv00161 – Document 57 (D. Utah 2015)

Federal Trade Commission v. DIRECTV , Inc., Case No. 15-cv-01129-HSG. United States District Court, N.D. California. (2018)

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, 918 F.Supp.2d 1171 (2013)

We’ll publish Part 6 – Conclusions – on Wednesday.

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