Electronic Discovery

Court Rules Defendant’s Production Need Not Be Lost in Translation: eDiscovery Case Law

In NY Machinery v. The Korean Cleaners Monthly, No. 2:17-12269-SDW-ESK (D.N.J. Jan. 6, 2020), New Jersey Magistrate Judge Edward S. Kiel, noting that “Rule 34 does not address which party has the obligation to translate documents into English” denied the plaintiffs’ application seeking to compel the defendants to translate documents served as part of their document production.

Case Background

In this case involving allegations unfair competition, false advertising, defamation, false light and trade libel (among other allegations), the plaintiffs wrote to the defendants in April 2019 asserting various deficiencies in the defendants’ discovery responses, including this statement:

“Defendants’ document production contains numerous documents, including emails, that appear to be written in Korean or Japanese. Plaintiffs have incurred the expense of obtaining certified English translations of documents contained in their production. We expect Defendants to promptly produce certified translations of these documents.”

The parties continued to exchange correspondence relating to discovery disputes, which included the plaintiffs’ demand that the defendants provide certified translations of documents and a dispute about a telephone-status conference on September 6, 2019 and whether a judge ordered the defendants to provide certified translations of Defendants’ document production by September 22, 2019.

Judge’s Ruling

Judge Kiel noted: “The question before the Court is: Who bears the cost of translating foreign-language documents produced in response to a request for production of documents? There is no clear answer in the Third Circuit.”

But, Judge Kiel also stated: “The Court, however, finds the analysis and decision in Nature’s Plus Nordic A/S v. Natural Organics, Inc. 274 F.R.D. 437, 439 (E.D.N.Y. 2011) to be persuasive and adopts it herein.” {emphasis added}  Judge Kiel noted that ruling “held that Rule 34 ‘d[oes] not provide the district court with any authority to direct the party producing documents to translate them and that such orders violate the well-accepted principle that each party bear the ordinary burden of financing his own suit… and that each party … is expected to bear any special attendant costs.’…Thus, absent a showing of ‘prejudice to [the requesting party for] undue delay,’ the party responding to document demands has no obligation to provide translations to foreign-language documents.”

Noting that “Plaintiffs do not claim that the documents produced by Defendants in response to Plaintiffs’ discovery demands are irrelevant” and that “to satisfy their obligation under Rule 34, Defendants produced all documents responsive to Plaintiffs’ request, including the foreign-language documents at issue”, Judge Kiel denied the plaintiffs’ request to have the defendants translate the documents or shift any of the costs for translating the documents to the defendants.

So, what do you think?  Should parties be responsible for translating foreign language documents they produce?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

A Different Type of Throwback Post, Along with ACEDS and Legaltech Updates: eDiscovery Best Practices

This isn’t your typical Throwback Thursday post.  For starters, it isn’t Thursday, it’s Friday (yay!).  And, it’s not so much of a throwback on a topic we’ve covered in the past, but rather a shout-out to a new article from an eDiscovery Daily alum!  And, we have an update on an ACEDS Houston event from yesterday and reminders of some CloudNine events coming at Legaltech!

For those who have been reading the blog since the early years, you may remember our colleague Jane Gennarelli, who used to provide a weekly post in the early years of the blog on various aspects of litigation support and eDiscovery, especially from a project management viewpoint.  Even though Jane hasn’t written on our blog for several years, we have continued to partner on projects from time to time with her and Jim Feuerstein and their team over at Labor Street consulting.

Jane has written a new article, available on her Labor Street site, titled You need that when???.  In the article, Jane talks about two different emergency scenarios in actual litigation cases – anybody who has worked in litigation for a while has probably seen similar “fire drills” and discusses how one turned out well, while the other didn’t turn out so well.  The key to success on the one that did work was treating the effort and applying sound project management techniques including up-front planning, providing instructions to the team and confirming understanding of those instructions, and monitoring the work.  Jane always has some great advice on project management best practices, so I encourage you to check it out!

Yesterday, we had our first ACEDS CLE luncheon of 2020 for the Houston chapter (of many, hopefully!) at The Houston Club in downtown Houston.  If you’re Houston-based, you missed a great lunch sponsored by Compliance Discovery Solutions and X1 and a terrific Information Governance CLE presentation by Todd Brown and Lisa Cromwell of Access Sciences!  Here’s a Linkedin post courtesy of Jean Rivers about the event.  More to come as the year progresses!

Finally, let the countdown begin!  Legaltech® is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  And, CloudNine will be once again exhibiting at the conference, at booth 3000 in America’s Hall 2.  And, we’re once again excited to be co-sponsoring the annual #DrinkswithDougandMary cocktail reception with Mary Mack, Kaylee Walstad and the rest of the EDRM team!  This is our fourth year and we’re grateful to Marc Zamsky and Compliance Discovery for co-sponsoring as well.  It will once again be at Ruth’s Chris Steak house and will happen Wednesday, February 5 from 4-6pm.  You can register to attend here.  And, as I told you on Wednesday, we will be conducting another NineForum education series of TED-talk discussions from our booth, so please check that out as well!

So, what do you think?  Are you attending Legaltech this year?  If so, please check out our NineForum session series!  And, as always, please let me know your thoughts or if you have a topic that you’d like to suggest.

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.

Plaintiffs’ Failure to “Hurry” Leads to Denial of Motion to Compel: eDiscovery Case Law

Sorry, I couldn’t resist… ;o)

In Hurry Family Revocable Trust, et al. v. Frankel, No. 8:18-cv-2869-T-33CPT (M.D. Fla. Jan. 14, 2020), the Florida District Court judge denied the Plaintiffs’ Motion to Compel Production of Documents and Request for Sanctions, ruling the motion to be untimely, given that the extended discovery deadline had passed, and also rejected the plaintiffs’ argument that the defendant had willfully avoided producing certain emails.

Case Background

In this dispute involving a former employee of the plaintiffs and claims that he used their confidential information and trade secrets, the Court entered a Case Management and Scheduling Order (CMSO) in January 2019 establishing various deadlines, including a discovery deadline of July 26, 2019, and a trial date of February 3, 2020.  The CMSO warned the parties that “[t]he Court may deny as untimely all motions to compel filed after the discovery deadline.”  In May 2019, the plaintiffs filed a motion to modify the CMSO and the Court extended the discovery deadline to August 9, 2019, but also cautioned the parties, however, that it would “be disinclined to extend…the [discovery] deadline[ ] further.”  Nonetheless, the plaintiffs sought to modify the CMSO two more times – the second time after the discovery deadline on August 12, 2019 – but the court denied both motions, stating after the second one:

“The Court has already extended the discovery deadline in this case to August 9, 2019, at the Plaintiffs’ request. The Court has also repeatedly warned Plaintiffs that it would be disinclined to extend deadlines further. Yet Plaintiffs filed this third motion to modify the Case Management and Scheduling Order on August 12, 2019, after the extended discovery deadline had passed…..As for the documents that Plaintiffs claim Defendant has failed to produce, Plaintiffs were aware of those missing documents since August 6 and/or 7, 2019, and failed to file a motion to compel prior to the discovery deadline. As the Court advised in its Case Management and Scheduling Order, ‘[f]ailure to complete discovery within the time established by this Order shall not constitute cause for a continuance.’”

Roughly four months after the Court’s August 20 Order, the plaintiffs filed an instant motion to compel after the plaintiffs received five emails from third parties that were not produced by the plaintiff.  The plaintiff requested an order directing that: (1) the defendant’s “email accounts, cloud storage, and digital devices” be subjected to a “third party search” for responsive documents at his expense; (2) “[Frankel] be precluded from testifying or offering evidence on issues related to categories of discovery withheld by [Frankel];” and (3) “adverse inferences be made against [Frankel] related to categories of discovery withheld by [Frankel].”

Judge’s Ruling

Noting that “Hurry waited to submit the instant motion until four months after the discovery deadline and only two months before trial”, the court stated: “Hurry’s proffered excuse for this extended delay is unpersuasive. When pressed on the matter at the hearing, Hurry conceded that it knew about the Koonce and FINRA emails by no later than early August 2019. It also admitted that it elected to place the instant motion on the ‘backburner’ while it dealt with its motion for summary judgment. Hurry’s evident lack of diligence in pursuing its motion to compel alone is fatal to that request.”

Continuing, the court stated: “Even were that not the case, Hurry has not shown that it is entitled to the relief it seeks. The central premise of its motion is that Frankel willfully avoided producing the Koonce and FINRA emails. In both his response and at the hearing, however, Frankel persuasively argued that his failure to produce these emails was not purposeful, but stemmed from the fact that the emails were not detected during the search Frankel conducted in connection with Hurry’s production requests. Frankel also noted he informed Hurry of the parameters of that search in advance, and Hurry did not object to those parameters.”

So, what do you think?  Should identification of new emails from third parties justify re-opening discovery?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

NineForum is Back for Another Year at Legaltech!: eDiscovery Best Practices

It was such a success last year, we decided to do it again this year!  At Legaltech, CloudNine will once again be conducting NineForum – our series of TED-style talk sessions right from our booth!  And, we have another terrific group of eDiscovery thought leaders to present on great topics!

On Tuesday, February 4 and Wednesday, February 5, prominent and highly respected eDiscovery and litigation support experts will once again deliver 9 TED-style talks, 20 minutes each, covering important topics impacting legal professionals at CloudNine’s Legaltech booth in America’s Hall II (#3000) at the New York Hilton.

Here is a list of the speakers and sessions we have put together for this year’s NineForum series:

Tuesday, February 4th

Session 1: 10:30-10:50am

Speaker: Tom O’Connor, founder and Director of Gulf Coast Legal Technology Center

Topic: Do’s and Don’ts of a 30(b)(6) Witness Deposition

Session 2: 11:00-11:20am

Speaker: Philip Weldon, Manager, eDiscovery & Practice Technology at Fried Frank

Topic: 5 Secrets to “Crushing” eDiscovery Processing in 2020

Session 3: 1:00-1:20pm

Speaker: Mike Quartararo, President of ACEDS

Topic: Skills that eDiscovery Professionals Need to Succeed in 2020

Session 4: 1:30-1:50pm

Speaker: Mary Mack, Chief Legal Technologist at EDRM

Topic: Bold eDiscovery Predictions for 2020:  What to Expect and How to Prepare

Session 5: 3:30-3:50pm

Speaker: Rick Weber, President of Elijah Ltd.

Topic: The Threat Within:  Protecting Against Employee Data Theft

Wednesday, February 5th

Session 6: 10:00-10:20am

Speaker: Robert Conley, VP Forensics and Strategic Operations at Rational Enterprise

Topic: A Day in the Life of Practical Information Governance

Session 7: 10:30-10:50am

Speaker: Kelly Twigger, Founder of eDiscovery Assistant and Principal of ESI Attorneys

Topic: Five Most Significant eDiscovery Cases of 2019:  Their Impact on 2020 and Beyond

Session 8: 12:00-12:20pm

Speaker: Joy Murao, Founder and CEO of Practice Aligned Resources

Topic: Foresight is 2020:  Why Legal Professionals Should Be More Proactive in Maximizing Technology Benefits

Session 9: 12:30-12:50pm

Speakers: Bradette Groves, Director of Project Management and Neil McLean, Discovery Consultant of Complete Legal

Topic: Transforming Your Plaintiffs Practice:  Leveraging eDiscovery to Maximize the Value of Your Case

CloudNine’s CEO Tony Caputo and I will be co-presenting at some of the sessions.  For more details on the sessions, click here.  All of these sessions will be free-of-charge to all show attendees.  So, if you have at least an Exhibits Plus Pass (only $30), you can check them all out.  How cool is that?!?

Anyway, I want to thank all of the speakers for agreeing to participate and I’m very excited to once again include NineForum in the educational efforts from CloudNine that include this blog and our monthly webcasts (including our upcoming webcast next Wednesday)!

So, what do you think?  Are you attending Legaltech this year?  If so, please check out our NineForum session series!  And, as always, please let me know your thoughts or if you have a topic that you’d like to suggest.

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 Another Updated Commentary from The Sedona Conference: eDiscovery Best Practices

Last Friday, we covered one updated commentary from The Sedona Conference® (TSC) and promised to cover another one this week.  Consider our promise kept!  :o)

On January 10, TSC and its Working Group 11 on Data Security and Privacy Liability (WG11) announced the publication of the January 2020 final version of The Sedona Conference Incident Response Guide.

The mission of WG11 is to identify and comment on trends in data security and privacy law in an effort to help organizations prepare for and respond to data breaches, and to assist attorneys and judicial officers in resolving questions of legal liability and damages.  WG11 developed the Incident Response Guide to provide a comprehensive but practical guide to help practitioners and organizations deal with the multitude of legal, technical, and policy issues that arise whenever a data breach occurs.

The Incident Response Guide is intended to help organizations prepare and implement an incident response plan and, more generally, to understand the information that drives the development of such a plan. It has been created by thought leaders in the industry and reflects both the practical lessons learned and legal experience gained by the drafters from direct experience responding to incidents, from representation of affected clients, and from the promulgation of rules and guidelines on national and international levels, and is intended to provide general guidance on the topic.

A couple of interesting and curious things about this guide, compared to other TSC guides we’ve covered in the past:

  • The Public Comment version of the Guide was developed way back in March 2018, almost two years ago
  • The guide starts on page 124 and goes to page 262?!? At least in the version I just downloaded this weekend.  Hmmm…

Regardless, there are essentially seven parts in the 139-page(!) (PDF) Commentary (after the Introduction, Part I), plus six appendices.  The Guide covers various topics like pre-incident planning, the incident response plan and executing it, key collateral issues and basic notification requirements.  The appendices include a Model Incident Response Plan and Model Notification Letter and Model Attorney General Breach Notification examples.

You can download a copy of the Commentary here (login required, which is free).  BTW, do you know how many states have security breach notification laws?  You might be surprised!

So, what do you think?  Does your organization have a incident response plan for data security?  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.

Here’s Why Whether Apple Provides a Backdoor to iPhones May Not Matter: Data Privacy Trends

Last week, we covered the government’s latest attempt (and Apple’s resistance) to get Apple to assist in unlocking the iPhones of a mass shooter – this time, with regard to password-protected iPhones used by Mohammed Saeed Alshamrani, who is suspected of killing three people last month in a shooting at a Navy base in Pensacola, Florida.  Ultimately, however, it may not matter whether Apple helps the government or not.

According to Business Insider (The Justice Department is demanding that Apple make it easier to unlock suspects’ iPhones, but experts say it can do that without Apple’s cooperation. Here’s how., written by Aaron Holmes), according to cybersecurity experts, new technologies have made it even easier for investigators to crack locked iPhones, even without help from Apple.

Last week, Attorney General William Barr said during a press conference on Monday that Apple had not helped the FBI crack into the password-protected iPhones used by Alshamrani.

“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance,” Barr said, next to a poster with a picture of the iPhones. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause.”

For their part, Apple disputed Barr’s assessment that it has failed to provide law enforcement with “substantive assistance” in unlocking the password-protected iPhones used by the shooting suspect at a Navy base in Pensacola, Florida, last month, but still refused his main request to provide a backdoor.  Apple stated it “produced a wide variety of information associated with the investigation” after the FBI’s initial request on Dec. 6. The company said it provided “gigabytes of information” including “iCloud backups, account information and transactional data for multiple accounts” in response to further requests that month.

“We have always maintained there is no such thing as a backdoor just for the good guys,” Apple said in a statement. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”

In an interview with Business Insider, Chris Howell, CTO of Wickr said he understood why Apple wouldn’t intentionally build a backdoor into the iPhone as the FBI has requested.

“As a technologist I can tell you that there is no security mechanism that can discriminate between a hacker trying to crack it and a law enforcement officer trying to do the same thing. Either we secure it or we don’t, it’s that simple.”

However, according to The Wall Street Journal, the cybersecurity company Grayshift sells an iPhone hacking device for $15,000, and Israel’s Cellebrite sells a similar device.  Tech companies are constantly trying to develop more secure devices and platforms to win costumers’ trust, and are therefore reticent to build backdoors that would easily crack encrypted services. Similarly, companies like Grayshift and Cellebrite are constantly honing methods of cracking devices, which are kept secret.

The iPhone was long seen as uncrackable, but recent advances have changed that — one county in Georgia that purchased a Grayshift device was able to crack 300 phones in one year, The Wall Street Journal reported.

One commenter to our post last week stated “if I was a terrorist I’d throw away my iPhoneX and get an iPhone 11”.  Staying ahead of crackers and hackers seems to be a continual battle that device managers and website providers face daily.  And, if we think this issue only applies to discovery of devices in cases involving mass shooters, it could easily apply to discovery in any type of case today where a custodian of a device has something to hide.  Like this Fifth Amendment case that we covered last year and will discuss in our webcast on January 29.

So, what do you think?  Should companies like Apple and Facebook provide backdoor access to their encrypted technology to investigators?  Or are there bigger privacy concerns at play here?  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 Sedona Conference Has an Updated Commentary on Rule 45 Subpoenas to Non-Parties: eDiscovery Best Practices

So many stories, so little time.  Been meaning to cover this for a few days now.  Last week, The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention & Production (WG1) announced the publication of the Public Comment Version of The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition.

In 2008, TSC published its first edition of this Commentary, then titled Commentary on Non-Party Production & Rule 45 Subpoenas.  That was 12 years ago!  Even our blog didn’t exist back then.  As you can imagine, much has changed since then, including:

  • Federal Rule of Civil Procedure 45 was substantially revised in 2013;
  • the 2015 amendments to the Federal Rules of Civil Procedure, while not further revising Rule 45 directly, significantly affect non-party practice;
  • Federal Rule of Evidence 502 was enacted in 2008 (subsequent to the publication of the first edition of this Commentary);
  • The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production was published in 2017 (we covered it here); and
  • the rise in cloud computing has placed large amounts of party data in the hands of non-parties, leading to increased use of Rule 45 subpoenas. That in turn has led to a significant growth in the case law under Rule 45 since the first edition. Here are a few examples we’ve covered in the past couple of years: Williams v. Angie’s List, Ronnie Van Zant, Inc. v. Pyle, Apex Colors, Inc. v. Chemworld Int’l Ltd., Inc., Shenwick v. Twitter, Inc., Fair v. Commc’ns Unlimited Inc., Shamrock-Shamrock, Inc. v. Remark.

There are essentially five parts in the 49-page (PDF) Commentary (after the Introduction, Part I).  Part II covers Rule Changes and Their Impact on Non-Party Discovery.  Part III covers The Possession, Custody, and Control Framework and Its Impact on Rule 45 Obligations (which has factored in several of the cases listed above).  Part IV discusses Preservation obligations, prior to and after receipt of a subpoena and remedies for spoliation.  Part V discusses Rule 45(d) Costs, Sanctions, and Motion Practice.  And, Part VI discusses Rule 45 Practice Pointers.   There are no Appendices.

You can download a copy of the Commentary here (login required, which is free).  The Commentary is open for public comment through March 6, 2020. Questions and comments on the Commentary are welcome and may be sent to comments@sedonaconference.org.  In particular, please share your comments on Section III’s discussion of viewing non-party subpoenas through the lens of “possession, custody or control” principles as well as Section VI’s sixteen Practice Pointers. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.

TSC has been busy!  We’ll cover another publication that was just released a few days ago early next week.

So, what do you think?  How does your organization address subpoenas of non-parties in litigation today?  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.

Apple Battling with the Government Again Over Breaking iPhone Encryption of Mass Shooters: Data Privacy Trends

Remember back in 2016 when Apple with in a court battle with the Department of Justice over giving investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters?  That was back in 2016 and we covered it here, here and here – that situation was resolved when the DOJ indicated that the FBI was able to retrieve the data with help from an “unnamed third party”.  Now, Apple is in a new dispute with the government again over the same issue.

According to CNBC (Attorney General William Barr says Apple is not helping unlock iPhones used by alleged Pensacola shooter, written by Kif Leswing), Attorney General William Barr said during a press conference on Monday that Apple had not helped the FBI crack into password-protected iPhones used by Mohammed Saeed Alshamrani, who is suspected of killing three people last month in a shooting at a Navy base in Pensacola, Florida.

“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance,” Barr said, next to a poster with a picture of the iPhones. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause.”

“We call on Apple and other technology companies to help us find a solution so that we can better protect the lives of Americans and prevent future attacks,” he said. Barr has also clashed with Facebook over encrypted messages, which he called “data-in-motion” on Monday.

The comments highlight law enforcement’s frustration with encryption technologies that protect data so that neither Apple nor law enforcement can easily read it.  They also preview future clashes between technology companies and governments over whether to build “back doors” that would allow law enforcement elevated access to private data to solve crimes like terrorism.

On Tuesday (as covered by CNBC here), Apple disputed Barr’s assessment that it has failed to provide law enforcement with “substantive assistance” in unlocking the password-protected iPhones used by the shooting suspect at a Navy base in Pensacola, Florida, last month, but still refused his main request to provide a backdoor.

Apple said it “produced a wide variety of information associated with the investigation” after the FBI’s initial request on Dec. 6. The company said it provided “gigabytes of information” including “iCloud backups, account information and transactional data for multiple accounts” in response to further requests that month.

“We have always maintained there is no such thing as a backdoor just for the good guys,” Apple said in its latest statement. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”

Apple made a similar point at a congressional hearing in December as senators threatened regulation if tech companies could not figure out a way to work with law enforcement to legally access encrypted devices and messages. A Facebook representative also attended the hearing, defending the company’s plans to make its entire private messaging system end-to-end encryption, which law enforcement fear will make it harder for them to track down instances of child exploitation, as they do now.

I expected we would see another dispute between Apple (or other provider) and the government, along the lines of the San Bernardino shooter case – surprised it took this long.  Maybe it’s time for the AG’s office to solicit the assistance of an “unnamed third party”… ;o)

So, what do you think?  Should companies like Apple and Facebook provide backdoor access to their encrypted technology to investigators?  Or are there bigger privacy concerns at play here?  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.

Is This the Winter of Our eDiscovery Business Confidence Discontent?: eDiscovery Trends

It’s that time again!  I’m here to cover the results of the Winter 2020 eDiscovery Business Confidence Survey, published (as always) on Rob Robinson’s terrific Complex Discovery site.  So, how confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for a couple of years now, I will provide some analysis and I’m continuing to take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all seventeen surveys to date, from January 2016 to present.  I’m also continuing to look at some of the numbers compared to their averages over all seventeen surveys as additional historical comparison.  And, I’ve changed up the bar charts to hopefully be easier to gauge historical numbers.

The winter 2020 survey response period was initiated on December 28, 2019 and continued until the registration of 146 responses this past Saturday.  Another high number of participants, thanks in part to support and promotion from both EDRM and ACEDS.

Software and/or Services Provider and Law Firms Still One-Two: As usual, Software and/or Services Provider respondents was the top group with 39.0% of all respondents, the highest percentage since Summer 2018 and about two percent higher than average for the seventeen surveys (36.9% average over that time).  Law Firm respondents were once again second at 30.8% of all respondents (slightly above the lifetime average of 30.4%).  Consultancy rose one spot to third at 13.0% (well below than the 17.8% lifetime average).  And Corporation respondents were fourth at 8.9%, higher than the lifetime average of 7.4%, but more a five percent drop from last survey. If you count law firms as providers (they’re technically both providers and consumers), providers account for 82.8% of total respondents, the least diverse survey since Fall 2018.  Here’s a graphical representation of the trend over the seventeen surveys to date:

So, how confident is another large group of respondents in eDiscovery business confidence?  See below.

Exactly Half of Respondents Consider Business to Be Good: This quarter, we saw a 1.3 point rise to 50% of respondents that considered business to be good, the lowest Winter number since 2017.  It’s also below the average of all surveys (54.1%) by 4.1%.  41.1% of respondents consider business to be normal, which is above the lifetime average of 38.5%.  And 8.9% of respondents rated business conditions as bad, which is the highest percentage since last Winter and 1.5 points above the lifetime average of 7.4%.  Just about every Winter shows a jump in “bad” votes, for some reason.  So, why is Winter a more pessimistic time of year?  Hmmm…  Here is the trend over the seventeen surveys to date:

So, how good do respondents expect business to be in six months?  See below.

A Majority of Respondents Once Again Expect Business to be the Same Six Months From Now: While most respondents (87.3%) expect business conditions will be in their segment to be the same or better six months from now, the percentage of those expecting business to be better was only 43.8%, while those expecting business to be the same was 53.4%. Those expecting worse business conditions dropped to 2.7%.   However, less than half of respondents also expected the same on revenues (only 44.5% for Same, with 51.4% for Higher), yet more than half of respondents expected the same on profits – 54.1% respectively.  So, it appears that respondents expect to make more, but not necessarily net more.  Capisce?  The percentage of respondents expecting higher profits did rise from the last survey another 2.3 points to 35.6%, but that’s still the second lowest Winter number ever and is 4.7% lower than the lifetime average.  Here is the profits trend over the seventeen surveys to date:

Will profits continue to be a damper on revenue projections in the future?  We’ll see.

Type This!  Increasing Types of Data Considered to Be Most Impactful to eDiscovery Business: Increasing Types of Data was the top factor for the third time ever at 25.3%, which was considerably higher than the lifetime survey average of 17.0%. Budgetary Constraints dropped one spot at 23.3% (half a percent lower than the 23.8% lifetime average).  Increasing Volumes of Data fell back to third at 18.5%, nearly 5 percent lower than the lifetime average of 23.3%.  Lack of Personnel was fourth at 13.0% (which is its lifetime average), Data Security was fifth at 12.3% (lifetime average 14.2%) and Inadequate Technology (once again) brought up the rear at 7.5% (even lower than its puny average of 8.7%).  Most everybody seems to be happy with their technology, or at least it’s not their biggest challenge.  The graph below illustrates the distribution over the seventeen surveys to date:

Budgetary Constraints, Increasing Volumes of Data, and Increasing Types of Data continue to consistently be the top three factors quarter after quarter with Increasing Types definitely trending up over the past several surveys.

Distribution of Respondents is Once Again Reasonably Even: Broken record time!  Operational Management respondents were once again the top group at 34.2% (2.2 points over the lifetime average of 32%) and Tactical Execution respondents were second at 33.6% (still 5.4 points over the lifetime average of 28.2%) and Executive Leadership respondents were last again at 32.1%, another 2.1 percent higher than last quarter (but 7.7 points lower than the lifetime average).  Here’s the breakdown over the seventeen surveys to date:

Clearly, we’ve shown that larger overall respondent groups (around 140 or more) leads to a much more even distribution than the earlier surveys where Executive Leadership respondents were consistently the largest group.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Orders Defendants to Produce All ESI in Native Format: eDiscovery Case Law

In Kamuda et al. v. Sterigenics U.S., LLC et al., No. 18 L 10475 (Ill. Cir. Jan. 6, 2020), Circuit Court Judge Christopher E. Lawler ruled that “[u]nder Illinois Supreme Court Rules 201(b)(4) and 214(b), the parties should produce all ESI in the respective native formats”, agreeing that Rule 214 entitles Plaintiffs to their requested ESI format and rejecting the defendants’ offered compromise to produce some of the ESI in native format, but not all.

Case Background

In this case, the parties disputed whether the parties should produce electronic discovery materials in the “native” formats requested by the plaintiffs or the “TIFF+” formats proposed by the defendants.  The plaintiffs argue the TIFF+ format would impose unreasonable costs and create unnecessary challenges to potential witnesses and deponents. In their reply brief, the plaintiffs also contended that as the party requesting discovery, Illinois Rule 214 entitled them to their preferred ESI format.  Rule 214(b) reads as follows:

“With regard to electronically stored information as defined in Rule 201(b)(4), 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.”

The defendants requested to produce ESI in the TIFF+ format, arguing that TIFF+ is not unreasonably expensive, represents the standard practice in electronic discovery matters, and best serves cybersecurity interests.  However, the defendants offered a compromise, proposing the parties would produce Microsoft Excel spreadsheets, PowerPoint presentations, and Word documents with tracked changes and comments in the respective native formats. All other materials, including emails, would be in the TIFF+ format.

In December 2019, the parties submitted written briefs in preparation for a case management conference. And, on December 18, the Court heard oral arguments. In support of Plaintiffs’ position, a retained consultant testified and provided a PowerPoint presentation. The defendants submitted a written response to the consultant’s presentation on December 27 and the plaintiffs submitted a written reply on January 3.

Judge’s Ruling

Judge Lawler stated: “Since December 18, the Court has considered the parties’ arguments and submitted materials. After careful review, the Court appreciates Defendants’ offer to compromise and resolve the ESI issue this early in the proceedings. Yet the parties disagree. And ‘[a]bsent agreement, ESI must be produced as ordinarily maintained or in a form reasonably usable to the requesting party.’ The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. pp. 171-72, Comment 12.b.”

Going further, Judge Lawler stated: “In addition, the Court agrees that Rule 214 entitles Plaintiffs to their requested ESI format…Plaintiffs specifically request the native format, which the Court has no reason to doubt is reasonably usable. The parties must therefore produce all ESI, including emails, in the respective native format.”

While ruling for the plaintiffs, Judge Lawler did also state: “That said, the Court recognizes the parties’ concerns about cybersecurity, minimizing costs, and eliminating unnecessary delays. The Court is therefore willing to revisit this decision if reasonable needs arise. Parties may show such reasonable needs by affidavits from their vendors or consultants.”

Here’s a new post by Craig Ball regarding plaintiffs and production formats that he just posted yesterday – hat tip to him for making me aware of this case.  After all, he was the retained consultant!  ;o)

So, what do you think?  Should courts always grant native productions if the requesting parties timely request that format?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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