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eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

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

eDiscovery Case Law: Apple Wins 1.05 Billion Dollar Verdict Against Samsung
 

Yes, that’s billion, with a “b”.

A jury of nine on Friday found that Samsung infringed all but one of the seven patents at issue in a high-stakes court battle between Apple Inc. and Samsung Electronics Co. The patent that they determined hadn’t infringed was a patent covering the physical design of the iPad. The jurors found all seven of Apple's patents valid—despite Samsung's attempts to have them thrown out. They also determined that Apple didn't violate any of the five patents Samsung asserted in the case.

Apple had been requesting $2.5 billion in damages.  While the award was much less than that, it was still larger than Samsung’s estimates and is among the largest intellectual-property awards on record.  Trial Judge Lucy Koh could also triple the damage award because the jury determined Samsung had acted willfully.

Interviewed after the trial, some of the jurors cited video testimony from Samsung executives and internal emails as key to the verdict.  Jury foreman Velvin Hogan indicated that video testimony from Samsung executives made it "absolutely" clear the infringement was done on purpose.  Another juror, Manuel Ilagan, said , "The e-mails that went back and forth from Samsung execs about the Apple features that they should incorporate into their devices was pretty damning to me."

The verdict was returned Friday afternoon after 22 hours of deliberation, despite the fact that the verdict form contained as many as 700 points the jury (including charges brought against different subsidiaries of the two companies addressing multiple patents and numerous products).

Role of Adverse Inference Sanction

As noted on this blog just a few days ago, Samsung received an adverse inference instruction from California Magistrate Judge Paul S. Grewal just prior to the start of trial as failure to turn “off” the auto-delete function in Samsung’s proprietary “mySingle” email system resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.  As a result, Judge Grewal ordered instructions to the jury to indicate that Samsung had failed to preserve evidence and that evidence could be presumed relevant and favorable to Apple.

However, after Samsung accused Apple to have also destroyed and tampered with evidence that could have benefited Samsung in the trial, Judge Lucy Koh decided to modify the “adverse inference” verdict issued for the jury to include instructions that Apple had also failed to preserve evidence.  Therefore, it appears as though the adverse inference instruction was neutralized and did not have a significant impact in the verdict; evidently, enough damning evidence was discovered that doomed Samsung in this case.

Samsung, of course, is expected to appeal.

So, what do you think?  Will this verdict impact discovery in future intellectual property cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: No Kleen Sweep for Technology Assisted Review
 

For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered.  Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America.  However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Background and Debate Regarding Search Approach

On February 21, the plaintiffs asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as "content-based advanced analytics," or CBAA) in their production of documents for discovery purposes.

In their filing, the plaintiffs claimed that “[t]he large disparity between the effectiveness of [the computer-assisted coding] methodology and Boolean keyword search methodology demonstrates that Defendants cannot establish that their proposed [keyword] search methodology is reasonable and adequate as they are required.”  Citing studies conducted between 1994 and 2011 claimed to demonstrate the superiority of computer-assisted review over keyword approaches, the plaintiffs claimed that computer-assisted coding retrieved for production “70 percent (worst case) of responsive documents rather than no more than 24 percent (best case) for Defendants’ Boolean, keyword search.”

In their response, the defendants contended that the plaintiffs "provided no legitimate reason that this Court should deviate here from reliable, recognized, and established discovery practices" in favor of their "unproven" CBAA methods. The defendants also emphasized that they have "tested, independently validated, and implemented a search term methodology that is wholly consistent with the case law around the nation and that more than satisfies the ESI production guidelines endorsed by the Seventh Circuit and the Sedona Conference." Having (according to their briefing) already produced more than one million pages of documents using their search methods, the defendants conveyed outrage that the plaintiffs would ask the court to "establish a new and radically different ESI standard for cases in this District."

Stipulation and Order

After “a substantial number of written submissions and oral presentations to the Court” regarding the search technology issue, “in order to narrow the issues, the parties have reached an agreement that will obviate the need for additional evidentiary hearings on the issue of the technology to be used to search for documents responsive to the First Requests.”  That agreement was memorialized this week in the Stipulation and Order Relating to ESI Search (link to stipulation courtesy of Law.com).  As part of that agreement, the plaintiffs have withdrawn their demand that the defendants apply CBAA to the first production request (referred to in the stipulation as the “First Request Corpus”). 

As for productions beyond the First Request Corpus, the plaintiffs also agreed not to “argue or contend” that the defendants should be required to CBAA or “predictive coding” with respect to any requests for production served on any defendant prior to October 1, 2013.  As for requests for production served after October 1, 2013, it was agreed that the parties would “meet and confer regarding the appropriate search methodology to be used for such newly collected documents”, with the ability for either party to file a motion if they can’t agree.  So, there will be no TAR-based approach in the Kleen case, at least until next October.

So, what do you think?  Does this signal a difficulty in obtaining approval for TAR-based approaches?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Pension Committee Precedent Takes One on the Chin
 

In Chin v. Port Authority of New York and New Jersey, No. 10-1904-cv(L), 2012 U.S. App. (2d Cir. July 10, 2012), the Second Circuit Court of Appeals ruled it was within a district court’s discretion not to impose sanctions against a party for its failure to institute a litigation hold.

In its ruling, the appellate court rejected “the notion that a failure to institute a ‘litigation hold’ [at the onset of litigation] constitutes gross negligence per se” and therefore automatically subjects a violating party to sanctions.

The defendant destroyed files in this employment discrimination case relating to its promotion process after a duty to preserve them had attached, but the Second Circuit declined to follow a bright line rule set forth by U.S. District Court Judge Shira Scheindlin of the Southern District of New York in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which considered it to be grossly negligent for a party not to institute a litigation hold at the onset of discovery. The appeals court stated, “Rather, we agree that ‘the better approach is to consider [the failure to adopt good preservation practices] as one factor’ in the determination of whether discovery sanctions should issue.”

With regard to the factors a party must establish for an adverse inference instruction, the court noted:

“[A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

Standing by its own precedent in Residential Funding Corp. v. DeGeorge Financial Corp., the court held that the district court had not abused its discretion:

“[A] finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction…Even if we assume arguendo both that the Port Authority was grossly negligent and that the documents here were ‘relevant,’ we have repeatedly held that a “case-by-case approach to the failure to produce relevant evidence,” at the discretion of the district court, is appropriate. In this case, the district court concluded that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process and the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.”

So, what do you think?  Should either court have followed the precedent of Pension Committee or was the decision appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

eDiscovery Best Practices: For Successful Predictive Coding, Start Randomly
 

Predictive coding is the hot eDiscovery topic of 2012, with three significant cases (Da Silva Moore v. Publicis Groupe, Global Aerospace v. Landow Aviation and Kleen Products v. Packaging Corp. of America) either approving or considering the use of predictive coding for eDiscovery.  So, how should your organization begin when preparing a collection for predictive coding discovery?  For best results, start randomly.

If that statement seems odd, let me explain. 

Predictive coding is the use of machine learning technologies to categorize an entire collection of documents as responsive or non-responsive, based on human review of only a subset of the document collection.  That subset of the collection is often referred to as the “seed” set of documents.  How the seed set of documents is derived is important to the success of the predictive coding effort.

Random Sampling, It’s Not Just for Searching

When we ran our series of posts (available here, here and here) that discussed the best practices for random sampling to test search results, it’s important to note that searching is not the only eDiscovery activity where sampling a set of documents is a good practice.  It’s also a vitally important step for deriving that seed set of documents upon which the predictive coding software learning decisions will be made.  As is the case with any random sampling methodology, you have to begin by determining the appropriate sample size to represent the collection, based on your desired confidence level and an acceptable margin of error (as noted here).  To ensure that the sample is a proper representative sample of the collection, you must ensure that the sample is performed from the entire collection to be predictively coded.

Given the debate in the above cases regarding the acceptability of the proposed predictive coding approaches (especially Da Silva Moore), it’s important to be prepared to defend your predictive coding approach and conducting a random sample to generate the seed documents is a key step to defensibility of that approach.

Then, once the sample is generated, the next key to success is the use of a subject matter expert (SME) to make responsiveness determinations.  And, it’s important to conduct a sample (there’s that word again!) of the result set after the predictive coding process to determine whether the process achieved a sufficient quality in automatically coding the remainder of the collection.

So, what do you think?  Do you start your predictive coding efforts “randomly”?  You should.  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: More Sanctions for Fry’s Electronics
 

In E.E.O.C. v Fry’s Electronics, Inc., No. C10-1562RSL, 2012 U.S. Dist. (W.D. Wash. July 3, 2012), Washington District Judge Robert S. Lasnik ordered several sanctions against the defendant in this sexual harassment case (including ordering the defendant to pay $100,000 in monetary sanctions and ordering that certain evidence be considered presumptively admissible at trial), but stopped short of entering a default judgment against the defendant.  This ruling came after having previously ordered sanctions against the defendant less than two months earlier.

Prior Sanctions

On May 10, Judge Lasnik granted in part plaintiffs' motion for sanctions in this case, finding that the defendant had spoliated evidence, including data and computer hard drives. In that ruling, Judge Lasnik believed that the prejudicial effect of the spoliation could be counteracted by “(a) instructing the jury that one of the justifications for firing [one of the plaintiffs] was pretextual and (b) allowing plaintiff considerable leeway in arguing what information might have been gleaned from the computer hard drives had they not been destroyed by defendant”. At the time, Judge Lasnik also indicated “some concern regarding the efficacy and thoroughness of defendant's searches” which led to more information being discovered after he ordered a second search.

Additional Spoliation and Misconduct

During a Rule 30(b)(6) deposition held on May 30, the plaintiffs learned for the first time that the accused individual had previously been accused of sexual harassment in 2001 and that an investigation had been conducted. According to Judge Lasnik, the defendant “intentionally withheld this information and the related documents from discovery by raising unfounded objections and ‘negotiating’ a narrowing of the discovery requests” and found the defendant's conduct to be “unfair, unwarranted, unprincipled, and unacceptable”.

Misconduct by the defendants noted by Judge Lasnik also included the redaction of responsive information, “[e]ven after defendant's objections to certain discovery requests were overruled”, as well as production of hundreds of pages of information with the “fallacious argument” that they were relevant to the claims.

Consideration of Default Judgment Sanction

Judge Lasnik noted that it is “once again left to determine whether to strike defendant's answer and enter default judgment against it”, but noted that dismissal is a “harsh sanction” and the following factors must be considered when determining “whether a dispositive sanction is appropriate under either its inherent powers or Rule 37(b): (1) the public's interest in the expeditious resolution of litigation; (2) the Court's need to manage its docket efficiently and effectively; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy in favor of considering cases on the merits; and (5) the availability of less drastic sanctions.”  While finding that the first three factors supported a dispositive sanction, Judge Lasnik ruled against a dispositive sanction in factor 4, indicating that “[t]he public has an interest in a determination of those issues based on the facts, rather than by judicial fiat”.

Lesser Sanctions Ordered

Instead, Judge Lasnik ordered lesser sanctions, indicating that “Defendant's affirmative defenses related to (i) its efforts to prevent and correct harassment in the workplace, (ii) plaintiffs' failure to utilize protective and corrective opportunities provided by defendant, (iii) its good faith and/or privilege to act as it did in this case are STRICKEN.” He also stated that certain documents and testimony related to “other complaints or reports of sexual harassment” at the company were “presumptively admissible at trial”. He also ordered sanctions of $100,000 “to offset the excess costs caused by defendant’s discovery violations, to punish unacceptable behavior, and as a deterrent to future bad conduct” to be split evenly between the two individual plaintiffs, the EEOC and the Court Clerk.

So, what do you think?  Are you surprised that the defendant didn’t receive a default judgment sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Major Bank and Law Firm Sanctioned for “Pattern of Discovery Abuses”
 

As noted in ABA Journal, Greenberg Traurig and its client, TD Bank, have received sanctions in Coquina Investments v. Rothstein, 10-cv-60786, U.S. District Court, Southern District of Florida for a “pattern of discovery abuses before, during, and after trial”.  As U.S. District Judge Marcia Cooke noted, “it often times appears that this litigation was conducted in an Inspector Clouseau-like fashion.  However, unlike a Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly.”

While Judge Cooke sanctioned Greenberg Traurig, she determined that sanctions were not warranted against the individual attorneys, despite the fact that their “handling of this case left much to be desired.”  However, she noted that while “they certainly acted with negligence”, “[t]he evidence does not support a finding that any of them acted willfully or in bad faith.”

Texas-based Coquina Investors won a $67 million verdict in January for aiding and abetting fraud by then-attorney Scott Rothstein in a civil damages suit brought by investors.  It’s the first civil jury verdict in this country against a bank for aiding and abetting fraud.  Judge Cooke did find that TD Bank "willfully concealed relevant evidence from its trial counsel” and “that TD Bank "had actual knowledge of Rothstein’s fraud”.  Both parties were required to pay plaintiff’s legal fees and pursuing the sanctions.  Rothstein has been disbarred and is serving a 50-year prison sentence in a secret location under the federal witness protection program.

According to the Miami Herald, two documents were primarily at issue in the sanctions motion:

  • “Customer Due Diligence” form: This document was redacted by the bank to conceal that the bank had put a "high risk" label on Rothstein's law firm concerning its potential for money laundering. That information was not blacked out when the same document was subsequently produced in a related case against the bank, however, alerting the plaintiffs' legal team to the alteration.  The bank contended at trial it had not considered Rothstein's firm high-risk, and hence was not required to monitor his accounts closely.
  • “Standard Investigative Protocol”: This document detailed the bank's policy on knowing its customers and preventing money laundering.  TD Bank claimed prior to trial that the document didn’t exist.  It was produced months later and the delay was apparently was due to a mistake on the part of a Greenberg lawyer who is no longer with the firm.

A spokeswoman for the law firm said it will comply with the judge's decision. “We regret the deficiencies that gave rise to this order,” she wrote in an email.  However, TD Bank plans to appeal both the sanctions ruling and the underlying $67 million jury award, a spokeswoman wrote in an email.

So, what do you think?  Are you surprised that the individual attorneys weren’t sanctioned, as well?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: No Sanctions When You Can’t Prove Evidence Was Destroyed
 

In Omogbehin v. Cino, No. 11-2223, 2012 U.S. App. (3d Cir. June 20, 2012), the plaintiff claimed that the District Court erred in denying his motion for spoliation sanctions and appealed to the US Third Circuit Court of Appeals, but lost as the appellate court upheld the rulings by the district judge and magistrate judge.

In this employment discrimination case, the plaintiff (Stephen Omogbehin) filed a motion for adverse inference jury instructions with the belief that the defendants destroyed or suppressed certain eMails during discovery. Unfortunately for the plaintiff, he not only failed to demonstrate evidence of spoliation, he also could not even prove that the alleged eMails existed. Two of the defendants claimed no such eMails existed, with support from their IT experts, who explained that all eMails from the relevant time frame had been produced.

Four-Prong Test

The appellate court upheld the rulings by the district judge and magistrate judge, who had used the four-prong test to determine whether spoliation occurred, requiring the plaintiff to demonstrate that “[1] the evidence was in the party’s control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the party.” Only after establishing that spoliation occurred, would a separate analysis be conducted to determine whether sanctions are appropriate. To obtain an adverse inference instruction, a party must show “there has been an actual suppression or withholding of the evidence.”

The Magistrate Judge denied Omogbehin's motion because he had failed to show that the emails were actually sent or received, let alone that that any spoliation occurred, much less that it was done intentionally.  The District Court affirmed the Magistrate Judge, concluding that Omogbehin had not satisfied his burden of establishing facts from which the court could "at least infer that the evidence existed in the first place."

The appellate court noted that the defendants “produced the information and documents that Omogbehin requested; that they did not contain what he had hoped or expected is not sufficient to satisfy his burden. He must provide some proof that what he seeks actually existed, but failed to do so.”

Compare to Zubulake

This is an interesting contrast to the Zubulake case, which was also an employment discrimination case.  In that case, Laura Zubulake preserved and produced her own copies of emails that the defendants failed to produce (at least initially) which led to the court’s decision to order discovery from backup tapes that led to additional productions of relevant emails.  Due to the fact that tapes from some key individuals were missing and that the other tapes had led to discovery of additional relevant emails, the court ultimately concluded that the destruction of those tapes resulted in spoliation of relevant evidence.  Zubulake was able to prove a pattern of spoliation that Omogbehin was unable to prove.

So, what do you think?  Have you ever pursued, or been forced to defendant against, spoliation sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery, Part 2
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here is the second and final part!

What advice would have for plaintiffs who face a similar situation to the one you faced?

I don’t give advice, and I’ll tell you why.  It’s because every case is different.  And, it’s not just the facts of the case but it’s also the personal lives of the plaintiffs.  So, it’s very difficult for me to do that.  Unless you’re in someone else’s shoes, you really can’t appreciate what they’re going through, so I don’t give advice.

What do you think about the state of eDiscovery today and where do you think that more attention could be paid to the discovery process?

While I don’t work in the industry day-to-day, I read a lot and keep up with the trends and it’s pretty incredible to me how it has changed over the past eight to nine years.  The first opinions in my case were in 2003 and 2004.  Back then, we had so little available with regard to technology and legal guidance.  When I attend a conference like LegalTech, I’m always amazed at the number of vendors and all the technology that’s now offered.  From that standpoint, how it has matured as an industry is a good thing.  However, I do believe that there are still important issues with regard to eDiscovery to be addressed.  When you read surveys and you see how many corporations still have yet to adopt certain aspects of the eDiscovery process, the fact that’s the case raises concern.  Some firms have not implemented litigation holds or document retention policies or an information governance structure to manage their information and you would think by now that a majority of corporations would have adopted something along those lines. 

I guess organizations still think discovery issues and sanctions won’t happen to them.  And, while I recognize the difficulty in a large organization with lots of employees to control everything and everybody, I’m surprised at the number of cases where sanctions occur.  I do read some of the case law and I do “scratch my head” from time to time.  So, I think there are still issues.

Obviously, the hot topic now is predictive coding.  My concern is that people perceive that as the “end all” and the ultimate answer to questions.  I think that processes like predictive coding will certainly help, but I think there’s still something to be said for the “human touch” when it comes to reviewing documents. I think that we’re making progress, but I think there is still more yet to go.

I read in an article that you were considering opening up an eDiscovery consulting practice.  Is that the case and, if so, what will be unique about your practice?

It’s something that I’m considering.  I’ve been working on the book, but I’d like to get back into more of a routine and perhaps focus on education for employees.  When people address eDiscovery issues, they look to implement technology and look to establish retention policies and procedures to implement holds, and that’s all good.  But, at the same time, I think there should be more efforts to educate the employees because they’re the ones who create the electronic documents.  Educate them as to the risks involved and procedures to follow to minimize those risks, such as litigation holds.  I think if you have an educated workforce and they understand that “less is more” when writing electronic documents, that they don’t always have to copy someone or forward something, that they can be more selective in their writing to reduce costs.

I think because of my background and my personal experiences and because I’m not an attorney, I can relate more to the typical worker.  I was on the trading desk and I know the day-to-day stresses of trying to manage email, trying to do the right thing, but also trying to be productive.  I think I can also relate to senior management and advise them that, although they may not recognize the risk, the risk is there.  And, that’s because I’ve been a worker, I’ve been on the trading desk, I’ve been through litigation, I’ve actually reviewed documents and I’ve gone to trial.  So, if you think that not implementing information governance or other eDiscovery policies is a good idea, that’s not the case.  Corporations should see this as an opportunity to manage information and use those management structures for the benefit of their company.

Thanks, Laura, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  So, today is part 1.  Part 2 will be published in the blog tomorrow!

Why did you decide to write the book at this time, seven years after the case was decided?

Actually, I’ve been working on the book for several years and I think it got to the point where I decided either I publish or I don’t publish.  It’s been a work-in-progress for some time and took me longer than I would have expected or liked, but it finally came together.  I probably started it a couple of years after everything was finalized, so it has taken from that point until now to complete it and get it to the point where it is now that I was happy with the results.

What do you expect that those who are familiar with the Zubulake opinions to get out of the book?

Number one, I think it’s really important to note that it’s from the plaintiff’s perspective.  What I find is that most of what you read about in the industry and hear at eDiscovery and legal conferences discuss topics from a defense standpoint.  Most are either a consultant to a defendant or an attorney representing a defendant and I find that the plaintiff’s voice is rarely heard.  And, I felt that I saw things differently from not only the defendant but also my attorneys from time to time because it was my case, I was taking the risks and I had a lot at stake.  So, I think hearing from the plaintiff not just about going through the motions filed and oral arguments and all that but also about life at home and what it’s like dealing with the day-to-day stresses as a plaintiff in a case that lasts three years.  I wanted people to appreciate the difficulty of it. I’m sure most people would assume it’s difficult, but I’m not sure how much people understand about the isolation and how going through litigation can be a lonely place. I write about that in the book.

Number two, a lot has been written about the Zubulake opinions.  Most of it is accurate, but not all of it.  I thought some of the things that were not accurate should be clarified because they were important.  Like, for instance, the role that the adverse inference instruction apparently played to the jury.  I only learned about its role in the verdict during post trial discussions.  Whenever I mention that observation to people, they find that interesting.  I think there are events throughout the litigation that people might learn that what they read in the press is not necessarily 100% accurate.

Also, I think that eDiscovery is still an issue for a lot of medium sized corporations (and probably large corporations, as well).  I think hearing from someone who went through the process would be valuable to them, especially when you consider that I did so without the aid of legal guidelines because there were very few guidelines at the time as I mentioned and also very little technology available.  I had to do it from a very basic standpoint.  So, when you learn anything, it’s really good to learn it from the foundation, from the basics.  From that, you can apply technology and strategies that have been developed over the years.  So, I’m hoping that everybody who reads it will learn something from my experience.

What do you expect that those who are unfamiliar with, or don’t understand the significance of, the Zubulake opinions to get out of the book?

Well, it’s difficult to write a book. When I wrote my first book several years ago about convertible securities, that was what I did for a living and I knew them very well.  I lived this case, so, clearly, I knew it very well.  The problem you have as a writer is not assuming that the reader knows what you know.  So, I tried to write it as clearly as possible and some who are experts in eDiscovery may not find the book to be technical enough, but that was intentional as my goal was to try to appeal to as broad an audience as possible.  That’s always difficult, but that was my goal.  I hope readers learn about the significance of the opinions, learn about the changes in law, and appreciate the plaintiff's viewpoint.

To the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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