Collection

Befuddled by BYOD? The Sedona Conference Has a New Set of Principles to Guide You: eDiscovery Best Practices

Many organizations are permitting (or even encouraging) their employees to use their own personal devices to access, create, and manage company related information – a practice commonly referred to as Bring Your Own Device (BYOD).  But, how can those organizations effectively manage those BYOD devices to meet their discovery obligations?  To help with that issue, The Sedona Conference® (TSC) has published an initial Public Comment Version of a Commentary to help.

In late January, TSC and its Working Group 1 on Electronic Document Retention and Production (WG1) rolled out the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations.  The Commentary is designed to help organizations develop and implement workable – and legally defensible – BYOD policies and practices. This Commentary also addresses how creating and storing an organization’s information on devices owned by employees impacts the organization’s discovery obligations.  It focuses specifically to mobile devices that employees “bring” to the workplace (not on other “BYO” type programs) and does not specifically address programs where the employer provides the mobile device.

The Commentary begins with five principles related to the use of BYOD programs and continues with commentary for each.  Here are the five principles:

  • Principle 1: Organizations should consider their business needs and objectives, their legal rights and obligations, and the rights and expectations of their employees when deciding whether to allow, or even require, BYOD.
  • Principle 2: An organization’s BYOD program should help achieve its business objectives while also protecting both business and personal information from unauthorized access, disclosure, and use.
  • Principle 3: Employee-owned devices that contain unique, relevant ESI should be considered sources for discovery.
  • Principle 4: An organization’s BYOD policy and practices should minimize the storage of––and facilitate the preservation and collection of––unique, relevant ESI from BYOD devices.
  • Principle 5: Employee-owned devices that do not contain unique, relevant ESI need not be considered sources for discovery.

The Commentary weighs in at a tidy 40 page PDF file, which includes a couple of appendices.  So, it’s a fairly light read, at least by TSC standards.  :o)

TSC is encouraging public comment on the Commentary on BYOD, which can be downloaded free from their website here (whether you’re a TSC member or not). They encourage Working Group Series members and others to spread the word and share the link (you’re welcome!) so they can get comments in before the public comment period closes on March 26. Questions and comments may be sent to comments@sedonaconference.org.  So, you have a chance to be heard!

Speaking of mobile devices, I’m excited to be speaking this year for the first time at the University of Florida Law E-Discovery Conference on March 29.  I’m on a panel discussion in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, and with The Honorable Amanda Arnold Sansone, Magistrate Judge in Florida, moderating.  As always, the conference will be conducted in Gainesville, FL (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET, with an all-star collection of speakers.  I’ll have more to say about the conference as we get closer to it.  Click here to register!

So, what do you think?  Does your organization have a BYOD policy?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Here’s a Chance to Learn What You Need to Do When a Case is First Filed: eDiscovery Best Practices

The first days after a complaint is filed are critical to managing the eDiscovery requirements of the case efficiently and cost-effectively. With a scheduling order required within 120 days of the complaint and a Rule 26(f) “meet and confer” conference required at least 21 days before that, there’s a lot to do and a short time to do it. Where do you begin?

On Wednesday, September 27 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Holy ****, The Case is Filed! What Do I Do Now? (yes, that’s the actual title). In this one-hour webcast, we’ll take a look at the various issues to consider and decisions to be made to help you “get your ducks in a row” and successfully prepare for the Rule 26(f) “meet and confer” conference within the first 100 days after the case is filed. Topics include:

  • What You Should Consider Doing before a Case is Even Filed
  • Scoping the Discovery Effort
  • Identifying Employees Likely to Have Potentially Responsive ESI
  • Mapping Data within the Organization
  • Timing and Execution of the Litigation Hold
  • Handling of Inaccessible Data
  • Guidelines for Interviewing Custodians
  • Managing ESI Collection and Chain of Custody
  • Search Considerations and Preparation
  • Handling and Clawback of Privileged and Confidential Materials
  • Determining Required Format(s) for Production
  • Timing of Discovery Deliverables and Phased Discovery
  • Identifying eDiscovery Liaison and 30(b)(6) Witnesses
  • Available Resources and Checklists

I’ll be presenting the webcast, along with Tom O’Connor, who is now a Special Consultant to CloudNine!  If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast!  To register for it, click here.

So, what do you think?  When a case is filed, do you have your eDiscovery “ducks in a row”?  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. 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.

Lawyer’s Pants Literally Catch on Fire and Alexa to “Testify”: eDiscovery Trends

OK, this first story isn’t exactly an eDiscovery story, but it’s too good to pass up…

Here’s a question for you: Would you believe what a lawyer was telling you during closing arguments if his pants were, literally, on fire?

According to this story from the Miami Herald, this actually happened on Wednesday as Miami defense lawyer Stephen Gutierrez began his closing arguments in front of a jury — in an arson case.

Gutierrez, who was arguing that his client’s car spontaneously combusted and was not intentionally set on fire (hmmm…), had been fiddling in his pocket as he was about to address jurors when smoke began billowing out his right pocket, witnesses told the Miami Herald.

Gutierrez rushed out of the Miami courtroom, leaving spectators stunned. After jurors were ushered out, Gutierrez returned unharmed, with a singed pocket, and insisted it wasn’t a staged defense demonstration gone wrong, instead blaming a faulty battery in an e-cigarette, observers said.

Miami-Dade police and prosecutors are now investigating the episode. Officers seized several frayed e-cigarette batteries as evidence.  Miami-Dade Circuit Judge Michael Hanzman, in the coming days, could decide to hold Gutierrez in contempt of court.

Despite his own demonstration of spontaneous combustion, Gutierrez’s client, Claudy Charles, was convicted of second-degree arson.

Now, on to the eDiscovery story…

Those who remember last year’s battle between Apple and the Justice Department over the Judge’s order for Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters may also remember that the Justice Department asked the court to vacate its order requiring Apple to assist when an unnamed third party was able to access the iPhone.  Here’s another battle that was shaping up over access to data on a device that has ended shortly after it began.

According to Legaltech News (Amazon, Avoiding First Amendment Clash, Drops Objections to Echo Warrant, written by Ben Hancock), Amazon Inc. has agreed to hand over recordings from an “Echo” device that was in the home of a murder suspect in Arkansas, after initially resisting doing so on First Amendment grounds.

In a stipulation filed Monday in the Circuit Court of Benton County, Arkansas, Amazon’s attorneys at Davis Wright Tremaine wrote that defendant James Bates had consented to the production of the recordings from his Echo, and that its motion to quash a warrant seeking the data was now moot.

A hearing on the motion had been set for Wednesday. Bates’s attorney, Kathleen Zellner (most notable for her work in wrongful conviction advocacy and current representation of Steven Avery), said in a tweet Tuesday morning: “We agreed to release recordings-my client James Bates is innocent.”

Amazon’s fight against the warrant seeking data from Bates’ Echo had been closely watched by legal experts as a test of the limits of privacy protections for data gathered by connected devices in consumers’ homes. I guess we’ll have to save that first battle over privacy rights by Echo owners for another case.

Having an Echo in our home and hearing Alexa often say “I didn’t get that” when we’re in normal conversation and not making an Echo request, I can only imagine how much data there is, or how long it’s retained.  Cases like these will continue to illustrate the amount of ESI that IoT devices may hold.

So, what do you think?  Should individuals have privacy rights to the data on their IoT devices, like the Amazon Echo?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Orders Forensic Examination of Key Custodian Computers: eDiscovery Case Law

In Davis v. Crescent Electric Company et. al., No. 12-5008 (D. S.D., Oct. 12, 2016), South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

Case Background

In this employment discrimination case, the plaintiff filed a Motion to Compel the defendant (her former employer) in August 2015 to produce Outlook PST files from the defendant’s server, from the plaintiff’s work computer and from the defendant’s Outlook archives to learn “how Julie Skinner/Stienstra had access to Lisa A. Davis’ email in order to print them.”  The court granted the motion in April 2016, and in August 2016, the plaintiff requested that the defendant provide access to the key custodians’ computers for a forensic examination.  The defendant refused, citing concerns that “unfettered investigation” on the computers “may provide access to confidential information and privileged communications, and it is beyond the scope of the Court’s Order and the relief requested.”  That same day, counsel for the plaintiff suggested having the forensic examiner execute a non-disclosure agreement and further requested that the defendant’s internet technician contact the forensic examiner as soon as possible “so this matter can be resolved without further court intervention.”

The defendant’s technician provided only of the email data requested, indicating that was the only data he was told to provide and that any other email data would have to be requested from counsel. The plaintiff’s counsel did just that, but the defendant’s counsel refused, reiterating the position that the information was beyond the scope of the order and the data may contain confidential and privileged information. As a result, the plaintiff filed a supplemental Motion to Compel.

Judge’s Ruling

Referencing Rule 37(a)(3)(B)(iv), Judge Piersol noted that, ultimately “[c]ourts consider the prior efforts of the parties to resolve the dispute, the relevance of the information sought, and the limits imposed by Rule 26(b)(2)(C) when deciding whether to grant a motion to compel.”  With regard to the plaintiff’s counsel effort to resolve the issue by offering to have the forensic examiner sign a non-disclosure agreement and the defense counsel’s refusal of that offer, Judge Piersol stated:

“First, CESCO does not explain how or why a non-disclosure agreement would not quell its fears of disclosure of confidential and/or privileged information. CESCO simply makes general claims concerning the disclosure of such information. Second, the computer that Davis seeks to examine is a business computer that is unlikely to contain any personal information. Therefore, without more of an explanation by CESCO as to what it seeks to protect and why it seeks to protect it, the Court finds that a non-disclosure agreement executed by Mr. Sevel will sufficiently protect any and all confidential and/or privileged information that may be uncovered during the forensic examination of Julie Stienstra/Julie Skinner’s computer and associated export logs.”

With regard to the relevance of the information sought, Judge Piersol noted that the plaintiff sought a forensic examination to determine the authenticity of a claimed fake email and that the plaintiff’s forensic examiner stated that “printed versions of emails, or email threads, cannot be considered to be forensically sound unless the original digital version can be examined for authenticity. In this situation, a review of the PST file containing the original emails and emails threads, with their associated metadata, is needed”.  Finding also that the defendant’s claim that the plaintiff’s request was overly broad to be “without merit”, Judge Piersol granted the plaintiff’s Supplemental Motion for an Order to Compel with the plaintiff’s forensic examiner to execute a non-disclosure agreement prior to his examination.

So, what do you think?  Should the forensic examination have been ordered?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: eDiscovery Case Law

 In United States v. Lambis, No. 15cr734 (S.D.N.Y. July 12, 2016), New York District Judge William H. Pauley, III granted the defendant’s motion to suppress evidence obtained by law enforcement agents in connection with a search of his apartment because the apartment was located via the use of a “Stingray” cell-site simulator to identify the location of the defendant’s phone without a warrant.

Case Background

In 2015, the US Drug Enforcement Administration (“DEA”) was conducting an investigation into an international drug-trafficking organization and sought a warrant for pen register information (record from the service provider of the telephone numbers dialed from a specific phone) and cell site location information (“CSLI”) for a target cell phone as part of that investigation. CSLI allows the target phone’s location to be approximated by providing a record of “pings” sent to cell sites by a target cell phone to approximate where the phone has been used.  Using CSLI, DEA agents were able to determine that the target cell phone was located in the general vicinity of “the Washington Heights area by 177th and Broadway.”

However, this CSLI was not precise enough to identify the specific apartment building, much less the specific unit in the building.  To isolate the location more precisely, the DEA deployed a technician with a cell site simulator (a device known as a “Stingray” that locates cell phones by mimicking the service provider’s cell tower and forcing cell phones to transmit “pings” to the simulator) to the intersection of 177th Street and Broadway.  Using the “Stingray”, the DEA technician was able to locate the building and then the unit where the defendant was located.  That same evening, DEA agents knocked on the defendant’s door and obtained consent from his father to enter the apartment, then obtained consent from the defendant to enter his bedroom where they recovered narcotics, three digital scales, empty zip lock bags, and other drug paraphernalia.  The defendant filed a motion to suppress the evidence.

Judge’s Ruling

Noting that a “Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable”, Judge Pauley referenced Kyllo v. United States, where Government agents used a thermal-imaging device to detect infrared radiation emanating from a home.  In that case, the Court held that “[w]here . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Judge Pauley then stated “Here, as in Kyllo, the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the ‘pings’ from Lambis’s cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.”  He also stated this:

“Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device. Perhaps recognizing this, the Department of Justice changed its internal policies, and now requires government agents to obtain a warrant before utilizing a cellsite simulator.”

As a result, Judge Pauley granted the defendant’s motion to suppress the evidence that was obtained by the search, even though the defendant’s father and the defendant had given consent to the search and access.

So, what do you think?  Should a warrant be required for “Stingray” devices?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to Sharon Nelson at Ride the Lightning for the tip!

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.

Rule Change Could Facilitate the Government’s Ability to Access ESI in Criminal Investigations: eDiscovery Trends

A rule modification adopted by the United States Supreme Court that significantly changes the way in which the government can obtain search warrants to access computer systems and electronically stored information (ESI) of suspected hackers could go into effect on December 1.

On April 28, the Supreme Court submitted the amendments to the Federal Rules of Criminal Procedure that were adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code.  One of those proposed rule changes, to Federal Rule of Criminal Procedure 41, would enable “a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:”

  • “the district where the media or information is located has been concealed through technological means; or”
  • “in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.”

Currently, the government can only obtain a warrant to access ESI from a magistrate in the district where the computer with the stored information is physically located.

As reported in JD Supra Business Advisor (Come Back With a Warrant: Proposed Rule Change Expands the Government’s Ability to Access Electronically Stored Information in Criminal Investigations, written by Thomas Kurland and Peter Nelson), proponents of the rule change say it is necessary to allow the government to respond quickly to cyber-attacks of unknown origin – particularly malicious “botnets” – which are becoming increasingly common as hackers become ever more sophisticated.

However, others say the rule change will significantly expand the government’s power to search computers without their owners’ consent – regardless of whether those computers belong to criminals or even to the victims of a crime.  One US senator, Ron Wyden of Oregon, has called for Congress to reject the rules changes, indicating that they “will massively expand the government’s hacking and surveillance powers” and “will have significant consequences for Americans’ privacy”.  He has indicated a “plan to introduce legislation to reverse these amendments shortly, and to request details on the opaque process for the authorization and use of hacking techniques by the government”.

So, what do you think?  Will Congress reverse these amendments?  Should they?  Please share any comments you might have or if you’d like to know more about a particular topic.

Just a reminder that I will be moderating a panel at The Masters Conference Windy City Cybersecurity, Social Media and eDiscovery event tomorrow (we covered it here) as part of a full day of educational sessions covering a wide range of topics.  CloudNine will be sponsoring that session, titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery at 4:15.  Click here to register for the conference.  If you’re a non-vendor, the cost is only $100 to attend for the full day!

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.

At Litigation Time, the Cost of Data Storage May Not Be As Low As You Think: eDiscovery Best Practices

One of my favorite all-time graphics that we’ve posted on the blog (from one of our very first posts) is this ad from the early 1980s for a 10 MB disk drive – for $3,398!  That’s MB (megabytes), not GB (gigabytes) or TB (terabytes).  These days, the cost per GB for data storage is pennies on the dollar, which is a big reason why the total amount of data being captured and stored by industry doubles every 1.2 years.  But, at litigation time, all that data can cost you – big.

When I checked on prices for external hard drives back in 2010 (not network drives, which are still more expensive), prices for a 2 TB external drive at Best Buy were as low as $140 (roughly 7 cents per GB).  Now, they’re as low as $81.99 (roughly 4.1 cents per GB).  And, these days, you can go bigger – a 5 TB drive for as low as $129.99 (roughly 2.6 cents per GB).  I promise that I don’t have a side job at Best Buy and am not trying to sell you hard drives (even from the back of a van).

No wonder organizations are storing more and more data and managing Big Data in organizations has become such a challenge!

Because organizations are storing so much data (and in more diverse places than ever before), information governance within those organizations has become vitally important in keeping that data as manageable as possible.  And, when litigation or regulatory requests hit, the ability to quickly search and cull potentially responsive data is more important than ever.

Back in 2010, I illustrated how each additional GB that has to be reviewed can cost as much as $16,650 (even with fairly inexpensive contract reviewers).  And, that doesn’t even take into consideration the costs to identify, preserve, collect, and produce each additional GB.  Of course, that was before Da Silva Moore and several other cases that ushered in the era of technology assisted review (even though more cases are still not using it than are using it).  Regardless, that statistic illustrates how the cost of data storage may not be as low as you think at litigation time – each GB could cost hundreds or even thousands to manage (even in the era of eDiscovery automation and falling prices for eDiscovery software and services).

Equating the early 1980’s ad above to GB, that equates to about $330,000 per GB!  But, if you go all the way back to 1950, the cost of a 5 MB drive from IBM was $50,000, which equates to about $10 million per GB!  Check out this interactive chart of hard drive prices from 1950-2010, courtesy of That Data Dude (yes, that really is the name of the site) where you can click on different years and see how the price per GB has dropped over the years.  It’s way cool!

So, what do you think?  Do you track GB metrics for your 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. 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.

Even a “Luddite” Can Learn the Ins and Outs of Data Backups with this Guide: eDiscovery Best Practices

You have to love an instructional guide that begins with a picture of Milton Waddams (the sad sack employee obsessing over his red stapler in the movie Office Space) and ends with a nice consolidated list of ten practice tips for backups in discovery.

Leave it to Craig Ball to provide that and more in the Luddite Lawyer’s Guide to Backup Systems, which Craig introduces in his Ball in Your Court blog here.  As Craig notes in his blog, this guide is an update from a primer that he wrote back in 2009 for the Georgetown E-Discovery Institute.  He has updated it to reflect the state-of-art in backup techniques and media and also added some “nifty” new stuff and graphics to illustrate concepts such as the difference between a differential and an incremental backup.  Craig even puts a “Jargon Watch” on the first page to list the terms he will define during the course of the guide.

Within this 20 page guide, Craig covers topics such as the Good and Bad of Backups, the differences between Duplication, Replication and Backup, the Major Elements of Backup Systems and the types of Backup Media and characteristics of each.  Craig illustrates how restoration to tape (despite popular opinion to the contrary) could actually be the most cost-effective way of recovering ESI in a case.  And, Craig discusses the emergence of the use of the Cloud for backups (which should come as no surprise to many of you).  He concludes with his Ten Practice Tips for Backups in Civil Discovery, which is a concise, one-page reference guide to keep handy when considering backups as part of your information governance and discovery processes.

Whether you’re a Luddite lawyer or one who is more apt to embrace technology, this guide is sure to provide an essential understanding of how backups are created and used and how they can be used during the discovery process.  Backups may be the Milton Waddams of the eDiscovery world, but they’re still important – remember that, at the end of the movie, Milton was the one relaxing on the beach with all of the money.  :o)

So, what do you think?  How do backups affect your eDiscovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Image © Twentieth Century Fox

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.

Craig Ball’s “Alexa-lent” Example of How the Internet of Things is Affecting Our Lives: eDiscovery Trends

I probably shouldn’t be writing about this as it will give my wife Paige another reason to say that we should get one of these.  Nonetheless, Craig Ball’s latest blog post illustrates how much data can be, and is being, captured these days in our everyday life.  Now, if we could just get to that data when we need it for legal purposes.

In Craig’s blog, Ball in your Court, his latest post (“Alexa. Preserve ESI.”) discusses how many cool things the Amazon Echo (with its “Alexa” voice command service) can do.  Sounding like he has gotten a little too up close and personal with the device, Craig notes that:

“Alexa streams music, and news updates.  Checks the weather and traffic.  Orders pizzas and Ubers.  Keeps up with the grocery and to do lists.  Tells jokes.  Turns on the lights.  Adjusts the temperature.  Answers questions.  Does math. Wakes me up.  Reminds me of appointments.  She also orders stuff from Amazon (big surprise there).”

Sounds pretty good.  Hopefully, my wife has stopped reading by this point.

Have you ever seen the movie Minority Report where Tom Cruise walks into his apartment and issues voice commands to turn on the lights and music?  Those days are here.

Anyway, Craig notes that, using the Alexa app on his phone or computer, he can view a list of every interaction since Alexa first came into his life, and listen to each recording of the instruction, including background sounds (even when his friends add heroin and bunny slippers to his shopping list).  Craig notes that “Never in the course of human history have we had so much precise, probative and objective evidence about human thinking and behavior.”

However, as he also notes, “what they don’t do is make it easy to preserve and collect their digital archives when a legal duty arises.  Too many apps and social networking sites fail to offer a reasonable means by which to lock down or retrieve the extensive, detailed records they hold.”  Most of them only provide an item-by-item (or screenshot by screenshot) mechanism for sifting through the data.

To paraphrase a Seinfeld analogy, they know how to take the reservation, they just don’t know how to hold the reservation (OK, it’s not completely relevant, but it’s funny).

In a call to action, Craig says that both “the user communities and the legal community need to speak out on this.  Users need an effective, self-directed means to preserve and collect their own data when legal and regulatory duties require it.”  I agree.  Some, like Google and Twitter, provide excellent mechanisms for getting to the data, but most don’t.

As Wooderson says in the movie Dazed and Confused, “it’d be a lot cooler if you did”.

So, what do you think?  Will the “Internet of Things” age eventually include a self-export feature?  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. 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.

Plaintiff’s Failure to Demonstrate Allegations Leads to Summary Judgment for Defendant: eDiscovery Case Law

In Malibu Media, LLC v. Doe, Case No. 13-6312 (N.D. Ill., Feb. 8, 2016), in a case of dueling summary judgment motions, Illinois Magistrate Judge Geraldine Soat Brown denied the plaintiff’s motion for summary judgment, but granted the defendant’s summary motion in its entirety, concluding that the plaintiff had not presented sufficient evidence to prove its allegations of illegally downloading movies.

Case Background

The plaintiff alleged that the defendant, identified through his Internet Protocol (“IP”) address, downloaded its copyrighted work, specifically, twenty-four adult movies from the plaintiff’s site, using BitTorrent.  In this matter, the defendant was allowed to proceed anonymously as “John Doe.”  With regard to the identification of the defendant via the IP address, the defendant claimed that, during the time in question, he had many guests at his house, and any number of people could have downloaded from his IP.

In a forensic examination of the defendant’s hard drives from his computer, the plaintiff’s expert did not find any evidence that the plaintiff’s copyrighted works, or the BitTorrent software, had been on the defendant’s computer.  However, he did find evidence that one external storage device and one internal hard drive that were capable of storing files downloaded via BitTorrent had been connected to the defendant’s computer, but they had not been produced by the defendant.  He also found several virtual machines on one of the defendant’s hard drives, but not the program “VMWare” he believed was used to create them.

The defendant retained his own expert to conduct a forensic examination of his hard drive.  The defendant expert also concluded that there was no evidence that the plaintiff’s copyrighted works, or the BitTorrent software, had been on the defendant’s computer.  With regard to the two devices identified by the plaintiff’s expert, the defendant’s expert determined that they were last used in 2012 (which was before the infringement period and before the date the plaintiff says the works at issue were created) and the virtual machines were last used no more recently than September 2010, which was the expiration timeframe for the one-year student license for VMWare that the defendant would have received as a graduate student.  The defendant also moved to strike declarations from plaintiff’s experts regarding the forensic and IP evidence, as the plaintiff never served any Rule 26(a)(2) disclosure – in response, the plaintiff characterized them as “lay witnesses — not experts”.

The plaintiff and defendant filed cross-motions for summary judgment in the case.

Judge’s Ruling

Stating that “[u]nlike other cases, Malibu has no evidence that any of its works were ever on Doe’s computer or storage device”, Judge Brown denied the plaintiff’s summary judgment motion, as follows:

“Considering all of Malibu’s evidence, including the Fieser, Patzer, and Paige declarations Doe has moved to strike, in the light most favorable to Doe, Malibu’s summary judgment motion must be denied. Even if those contested declarations are considered, Malibu has not eliminated all material questions of fact about whether there was actionable infringement and, if so, whether Doe was the infringer.”

With regard to the defendant’s motion to strike declarations from plaintiff’s experts, Judge Brown granted the motion pursuant to Fed. R. Civ. P. 26(a)(2) and 37(c)(1).  As a result, Judge Brown ruled “[w]ithout the evidence of Fieser’s and Patzer’s declarations, there is no evidence linking Doe or even his IP address to Malibu’s works. Paige’s evidence, which depends entirely on the finding of IPP using Excipio’s system, does not contain any evidence based on his personal knowledge that Doe copied or distributed any of Malibu’s works. Doe’s motion for summary judgment is, accordingly, granted.”

So, what do you think?  Should the defendant’s summary judgment motion have been granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Here are links to two previous cases we have covered regarding this plaintiff.

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