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Electronic Discovery

Beep, Beep! Terminating Sanctions against Defendant for Spoliation Affirmed on Appeal: eDiscovery Case Law

As Wile E. Coyote has learned, you don’t want to mess with the Roadrunner.  Especially if you’ve been found to have willfully spoliated data…  :o)

In Roadrunner Transportation Services, Inc. v. Tarwater, Nos. 15-55448 and 14-55529 (9th Cir., Mar. 18, 2016), the Ninth Circuit affirmed the district court’s entry of default judgment and award of attorneys’ fees in favor of the plaintiff, ruling that the district court did not abuse its discretion by entering default judgment as a sanction for the defendant’s deletion of data from his laptop computers .  The Ninth Circuit also affirmed the district court’s award of $325,000 in attorneys’ fees to the plaintiff and also affirmed the lower court ruling to limit the plaintiff’s compensatory damages to the four customers specifically identified in the First Amended Complaint.

In considering the defendant’s appeal of the district court’s entry of default judgment and award of attorneys’ fees in favor of his former employer and the plaintiff’s cross-appeal of the district court’s compensatory damages award, the Ninth Circuit ruled, as follows:

“1. The district court did not abuse its discretion by entering default judgment as a sanction for Tarwater’s deletion of data from his laptop computers…There was ample evidence that Tarwater deleted emails and files on his laptops after receiving multiple preservation demands from Roadrunner, and even after the court explicitly ordered Tarwater to preserve “all data” on his electronic devices. In addition to Tarwater’s own admissions, a third-party computer expert concluded that files on one of Tarwater’s devices had been deleted and overwritten during the litigation, and that the deletions likely “bypasse[d] the [computer’s] Recycle Bin” through a user-initiated process. In light of the evidence of spoliation, and the nature of Roadrunner’s claims, the district court did not clearly err in finding that Tarwater willfully destroyed the data, that Roadrunner had been deprived of its “primary evidence of Tarwater’s alleged misappropriation and related misconduct,” and that a less drastic sanction could not have adequately redressed the prejudice to Roadrunner.”

“2. The district court did not abuse its discretion by awarding Roadrunner $325,000 in attorneys’ fees…The court carefully considered the billing entries and reasonableness of the hourly rates for Roadrunner’s attorneys and reduced the award to reflect an appropriate level of staffing for the case. The district court also properly accounted for the degree of success achieved by Roadrunner, as well as the public’s interest in protecting trade secrets.”

“3. The district court properly limited Roadrunner’s compensatory damages to the four customers specifically identified in the First Amended Complaint.”

“AFFIRMED.”

So, what do you think?  Did the defendant deserve a terminating sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

We’re just one week away from the pre-conference seminars at ACEDS!  For the first time, ACEDS is offering a number of pre-conference events focused on some of the most important issues and trends in eDiscovery. These include a cybersecurity seminar addressing the recent data breaches at major law firms, a networking forum hosted by Women in E-Discovery, and the Law Student Blogger/Social Invitational pre-conference seminar with Ari Kaplan, Rob Robinson, Robin Thompson and me!  If you already have a blog or are interested in starting a blog, join us and learn about the benefits of blogging, how to get started, establishing your blogging workflow, avoiding liability and leveraging social media for professional and personal benefit.  Hope to see you in New York on Monday!

Image © Warner Bros.

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.

“Panama Papers” Hack Wasn’t an Inside Job, Says Founding Partner: eDiscovery Trends

It seems that everybody is talking about the huge data leak of 11.5 million documents (2.6 total TB of data – that’s right, terabytes) at Panama-based law firm Mossak Fonseca that appears to have exposed illicit offshore holdings of global political leaders and celebrities (among others), dubbed the “Panama Papers”.  Now, a founding partner at the firm has indicated that the leak was not an inside job.

“We rule out an inside job. This is not a leak. This is a hack,” founding partner Ramon Fonseca told Reuters at the company’s headquarters in Panama City’s business district.  “We have a theory and we are following it,” he continued, without elaborating.

“We have already made the relevant complaints to the Attorney General’s office, and there is a government institution studying the issue,” he added, flanked by two press advisers.

Claiming that “[t]he (emails) were taken out of context”, Fonseca said that “The only crime that has been proven is the hack.  No one is talking about that. That is the story.”

As the Reuters article notes, governments across the world have begun investigating possible financial wrongdoing by the rich and powerful after the International Consortium of Investigative Journalists (ICIJ) published a report on Monday based upon a yearlong study of some 2.6 TB of leaked data, mostly emails from the law firm that span four decades.

The papers have revealed financial arrangements of prominent figures, including friends of Russian President Vladimir Putin, relatives of the prime ministers of Britain and Pakistan and Chinese President Xi Jinping, and the president of Ukraine.  On Tuesday, Iceland’s prime minister, Sigmundur David Gunnlaugsson, resigned, becoming the first casualty of the leak.

The idea that the data was hacked externally as opposed to someone inside the firm stealing or copying a hard drive or tape seems difficult to believe.  It takes a long time to transmit 2.6 terabytes of data – we’re talking weeks, not days, of continuous transmission.  Either the firm was utterly clueless as their sensitive data was being pulled right out from under their noses for a long period of time or there is more to the story.

One story that was somewhat humorous this week was that George Mason University was forced to tweak the renaming of its law school to honor the late Supreme Court Justice Antonin Scalia because of an unfortunate acronym.  The school had to change the proposed name from the Antonin Scalia School Of Law (see the problem here?) to the Antonin Scalia Law School.

The acronym for Mossak Fonseca is an unfortunate acronym too.  I’ll bet when the members of that firm realized that their data had escaped out into the public, they uttered a few unfortunate acronyms of their own (possibly in both Spanish and English).

So, what do you think?  Do you believe that the data was hacked from the outside?  Or do you think something else happened?   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.

Court Denies Plaintiff’s Request for Native ESI Format, Approves Request for Index: eDiscovery Case Law

In Stormo v. City of Sioux Falls, et. al., No. 12-04057 (D. S.D., Feb. 19, 2016), South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Case Background

In this pro se lawsuit where the plaintiff sued the defendants for violations of his civil rights with respect to his status as a landowner and landlord, the court granted the defendants’ motion for summary judgment in part. The plaintiff then filed a second amended complaint with additional claims.  As Judge Schreier noted, “Discovery is ongoing and fraught with complications. Stormo has filed numerous motions, often raising unrelated, irrelevant, or indecipherable arguments. Defendants have neither responded to all of Stormo’s discovery requests adequately nor complied with all of the court’s orders sufficiently.”

In the plaintiff’s latest motion, the plaintiff moved the court to, among other things, compel defendants to provide electronically stored information in its native format, provide metadata for these documents, and provide an index explaining information about the documents.

With regard to the metadata, the plaintiff argued that metadata would allow him to discover whether the data is “forensically sound,” specifically: when it was created, accessed, or modified.  Countering, the defendant argued that providing the metadata would be overly burdensome and stated that they have no system that tracks the metadata sought by the plaintiff and they would have to go through each document and retrieve the metadata from the program with which the document was created.  As for the request for the index, the plaintiff claimed that the defendants produced a jumbled group of documents which is not labeled or indexed in any manner, but the defendants argued that they produced documents in an organized fashion and in the form kept in the ordinary course of business.

Judge’s Ruling

Judge Schreier began her analysis by citing Federal Rule of Civil Procedure 34(b)(2)(E), which states:

“(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form…”

With regard to the plaintiff’s request to compel the defendants to reproduce documents in their native format, Judge Schreier stated that “He claims that he made a general request for all electronically stored information in its native format at the time of his initial document request…He does not, however, explain what is wrong with the format in which defendants have produced the documents. Therefore, the motion to compel is denied as it concerns his request to reproduce documents in their native format.”

With regard to the request for metadata, Judge Schreier stated:

“Defendants’ response may fail to articulate how this discovery is extraordinary or unusual, but Stormo has failed to show the metadata’s relevancy to his claims. His motion to compel argues that he wants the metadata to be sure that the documents were not created for or altered in anticipation of litigation…Stormo has not explained why he thinks defendants might have done this. There is no indication that they have altered the documents. Stormo fails to convince the court that the metadata is relevant to his claims, the request falls outside of the parameters of discovery, and therefore, his motion to compel is denied as it concerns his request for metadata.”

As for the request for an index, Judge Schreier ruled on this point in favor of the plaintiff, noting that “Stormo requests only “a) the bates number or other identifier of the document; b) the name of the person who is custodian of the document; c) the original source and author of the document; and d) the document request number and request number of any requests that the document is responsive to” for each document…Supplying this information is not overly burdensome on defendants. Therefore, Stormo’s motion to compel is granted as it concerns preparation of an index that supplies the information described above.”

So, what do you think?  Was the plaintiff’s request for native format documents and metadata unreasonable?  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.

Spring has Sprung! Don’t Plant – Build – a (Decision) Tree: eDiscovery Best Practices

Having recently needed to walk a client through a decision process to determine how to proceed to index and search a huge volume of data, it seems timely to revisit this topic.

When a new case is filed, there are several important decisions that the lead attorney has to make.  Those decisions that are made early in the life cycle of a case can significantly affect how discovery is managed and how costly the discovery process can be for that case.  Decision trees enable attorneys to work through the decision process up front to help them make sound, logical decisions which can lead to more efficient management of the discovery process.

What is a Decision Tree?

A decision tree is a decision support tool that uses a tree-like graph or model of decisions and their possible consequences.  It is essentially a flowchart in which each internal node represents a test on an attribute, each branch represents outcome of that test and each leaf node represents the decision taken after computing all attributes.

If you have ever prepared an analysis at the outset of a case to estimate the probability of winning the case and determining whether to litigate or attempt to settle, you may have already prepared some sort of decision tree to make those decisions.  You probably looked at the probability of winning, probabilities of different award amounts, extrapolated the costs for litigating against the potential award amounts and used that to decide how to proceed.  The graphic above provides an example of what a decision tree, drawn as a flowchart, might look like to represent that process.

Uses of Decision Trees in Discovery

Decision trees identify the available alternatives to tackle a particular business problem and can help identify the conditions conducive to each alternative.  Issues in discovery for which a decision tree might be warranted could include:

  • Decide whether to outsource litigation support and discovery activities or keep them in-house;
  • Select an appropriate discovery solution to meet your organization’s needs within its budget;
  • Decide when to implement a litigation hold and determine how to comply with your organization’s ongoing duty to preserve data;
  • Determine how to manage collection procedures in discovery that identify the appropriate custodians for each type of case;
  • Decide whether to perform responsiveness and privilege review of native files or convert to an image format such as TIFF or PDF to support those review processes;
  • Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel.

While they promote efficiency during the discovery process by promoting up front planning and walking through the logic of the decision making process, decision trees also reduce mistakes in the process by making the process more predictable and repeatable, promoting consistency in handling cases.  Once you have the decision process documented via a decision tree (and underlying assumptions don’t change), the plan of action will remain consistent.  If assumptions do change over time, your decision tree can evolve just like a real tree – adding or removing “branches” as needed to reflect the current decision making process.

So, what do you think?  Does your organization use decision trees in your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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 Request for Cost Reimbursement for Hosted eDiscovery Database: eDiscovery Case Law

In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., No. 14-1602 (D. Minn., Feb. 24, 2016), Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Case Background

The defendant asserted that the plaintiffs produced approximately 19 gigabytes of data from a prior related lawsuit and it retained eDiscovery vendors to create and maintain an electronic platform for these documents (at a cost of $90 per gigabyte per month), so they could be processed and hosted in a viewable format.  The defendant eventually added its additional 192 gigabytes of data in preparation for production to the plaintiffs, which was hosted at the same $90 per gigabyte per month rate.

After the court entered judgment in favor of the defendant in June 2015, the defendant submitted its bill of costs to the Clerk of Court in July 2015 and the plaintiffs filed their objection to the bill of costs in August 2015.  The Clerk of Court entered a Cost Judgment on October 15, 2015 denying the taxation of costs by the defendant on the basis that fees for electronic discovery are not taxable by the Clerk. The defendant subsequently filed a motion for review of cost judgment, seeking to recover $126,970.80 in costs incurred by creating and maintaining an electronic database to hold documents produced by the plaintiffs and collecting and securing its own documents.  Following an objection from the plaintiffs, the defendant reduced the requested amount to $123,260.80.

Judge’s Ruling

Noting that “a number of courts that have addressed whether costs associated with e-discovery are recoverable under § 1092 have found that such costs are recoverable only to the extent they qualify as exemplification fees or the costs of making copies”, Judge Davis cited Race Tires America, Inc. v. Hoosier Racing Tire Corp., indicating that “the district court awarded the prevailing party the costs for e-discovery on the basis that it ‘appeared to be the electronic equivalent of exemplification and copying.’”  However, Judge Davis indicated that, on appeal, “the Third Circuit held that where e-discovery did not produce illustrative evidence or the authentication of public records, the costs for such discovery did not qualify as exemplification fees under § 1920(4) and is not recoverable” (we covered both rulings here and here).  Judge Davis specifically noted that “[a]s to costs associated with the collection and preservation of electronically stored information (“ESI”), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents, the court held that such costs are not recoverable under §1920(4).”

Indicating that other courts had found the Race Tires decision persuasive, Judge Davis stated that he “also finds the Race Tire decision persuasive and holds that the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)” and denied the defendant’s motion for recovery of those costs.

So, what do you think?  Is § 1920(4) still timely for consideration of cost reimbursement to prevailing parties?  Or should it be revisited and updated to reflect the current technological environment?  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.

No Fooling! The ACEDS Conference is Later this Month!: eDiscovery Trends

This is not an April Fool’s Joke!  Just when New York City thought it was safe from eDiscovery professionals – we’re all coming back for the ACEDS conference!  And, eDiscovery Daily and CloudNine will be a part of the show!

The conference is being held this year on Tuesday and Wednesday April 19 and 20, with pre-conference seminars being held the previous day on Monday, the 18th.  The conference will be held at the Grand Hyatt New York (located at 109 East 42nd Street at Grand Central Terminal).

This year’s panel topics include eDiscovery career challenges, the new rule changes, EDRM, information governance, predictive coding, data breach mitigation, and more.  From the opening keynote presentation on Tuesday by David Shonka, Acting General Counsel for the Federal Trade Commission (FTC), who will discuss the FTC’s Future Forward Stewardship of Privacy and Security, the conference promises to cover numerous relevant and timely topics for the eDiscovery professional.  And, with a collection of over 30 eDiscovery expert speakers that includes Craig Ball, George Socha, Tom O’Connor, Rob Robinson and some guy named Doug Austin (don’t be dissuaded from attending!) along with noted judges like Hon. James C. Francis IV (New York), Hon. Matthew Sciarrino, Jr. (New York) and Hon. Xavier Rodriguez (Texas), attendees will learn a lot.

Speaking of Craig, he will receive an ACEDS lifetime achievement award at the ACEDS Conference Awards Luncheon on Wednesday, April 20 along with Allison Brecher of Marsh and McLennan, Sheila Grela of Kennedy and Souza and Kim Taylor of Ipro.  Congratulations to all of the well-deserving award winners!

I will be covering the conference for eDiscovery Daily and will provide info about the sessions before each day, so that attendees will know what’s available.  And, CloudNine will be one of the exhibitors at the show.  If you’re there, come by our booth and say hi!

Also, on Monday, there are several pre-conference seminars that you can attend (regardless of whether you’re attending the overall show or not), including one for CEDS exam preparation and one about cyber security for legal professionals.

The third seminar on Monday is the Law Student Blogger/Social Invitational seminar, which is designed to bring together global blogging and social participants from the eDiscovery and Legal Technology community with law students forward thinking enough to create and share their knowledge (or consider doing so) via online media while still in school.  You’ll get to learn from experienced bloggers like Ari Kaplan, Rob Robinson, Robin Thompson and me and we get to learn from you as well!  We’d love to talk about blogging with you!

Not to be forgotten, EDRM is having its Spring Workshop on that Monday at the same venue in conjunction with the ACEDS conference as well, so if you’re an EDRM member, you can get a 25% discount for attending both.

To register for the conference, click here.  Prices vary, depending on a variety of factors, such as whether you’re an ACEDS member, employee of a government or non-profit organization, or student and whether you’re attending the entire conference or one of the pre-conference seminars.

So, what do you think?  Are you attending the ACEDS conference later this month?  If not, why not?  Please share any comments you might have with us or let us know 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.

If Google and Oracle are Going to Mine for Jurors’ Social Media Info, They Have to Inform the Court: eDiscovery Trends

When the big guys sue each other, the cases last forever.  We’ve been covering developments in the Apple v. Samsung case since July 2012, and that case is still going on.  Another case that we’ve covered a long time ago (way back in November 2011) is Oracle Corp. v. Google Inc. and that case is still going on too.  In that case, with a trial approaching, the judge has told lawyers to disclose Internet and social media research about jurors to the court or agree not to conduct it.

According to The Wall Street Journal (Google and Oracle Must Disclose Mining of Jurors’ Social Media, written by Jacob Gershman), U.S. District Judge William Alsup’s order urges both sides to respect the privacy of jurors.  He opened the order in this manner:

“Trial judges have such respect for juries – reverential respect would not be too strong to say – that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

As the order notes, apparently, both sides requested that the Court require the jury pool to complete a two-page jury questionnaire.  Then, one side asked for “a full extra day to digest the answers, and the other side wanted two full extra days, all before beginning voir dire.”  Judge Alsup eventually realized that they wanted that time to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data” and when asked about it, “counsel admitted this.”

Using the example of a juror’s favorite book being To Kill a Mockingbird and counsel constructing a copyright jury argument based on an analogy to that work and to play upon the recent death of Harper Lee, Judge Alsup noted that one of the dangers of mining juror social media use is that lawyers will use the information to make “improper personal appeals.”  Opting against a total research ban, he offered this compromise:

“[T]he Court calls upon them to voluntarily consent to a ban against Internet research on the [jury pool] or our jury until the trial is over… In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too.”

Apparently, however, both parties would not agree to ban the research.  As Judge Alsup noted in his order, “Google is willing to accept an outright ban on Internet research about the venire and our jury, provided the ban applies equally to both sides. Oracle, however, will not.”  Judge Alsup also noted that “[o]n numerous occasions, Oracle has supplied confusing answers to the Court’s inquiries about its plan”.

Judge Alsup instructed both parties to “inform the Court By MARCH 31 AT NOON, whether they will consent to a ban against Internet research on the venire or the empaneled jury until the trial is over.”  That’s today, so we’ll see what happens.

So, what do you think?  Should litigants be allowed to mine social media data of prospective jurors?  Please share any comments you might have with us or let us know 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.

Here are Some Questions to Ask When Selecting an eDiscovery Vendor: eDiscovery Best Practices

Let’s face it, there are a lot of eDiscovery vendors out there – like CloudNine (shameless plug warning!).  But, how do you find out which vendor is right for you?  Ask a lot of questions, of course!  Here is an article that provides several good ones to ask.

This article in the Florida Bar Practice Resource Institute (PRI) Blog ( Questions You Should Ask When Selecting An E-Discovery Vendor , written by David R. Hazouri, Esq.) covers questions that 1) are aimed at getting a sense for the vendor’s market position, business philosophy and long term stability, 2) attempt to drill down on the technical components of the vendor’s operations, and 3) seek to probe how the vendor proposes to handle your matter as you have generically described it.  Let’s take a look at each section of questions more closely.

Market Position, Business Philosophy and Long Term Stability

Several good questions here, ranging from some obvious ones (How long has the company been working in e-discovery?) to not-so-obvious (What is the vendor’s philosophy/business practices with respect to technology: have they developed solutions in-house or are they tech-agnostic?).  Here are a couple in particular worth noting:

  • How does the vendor distinguish itself from its competitors and who does the vendor think it compete with? Obvious questions, but I’m amazed how many prospective clients don’t ask us those questions.  If the eDiscovery vendor can’t concisely identify three to five points of differentiation from its competitors, how are you really going to know that they’re the right vendor for you?
  • What is the vendor’s philosophy with respect to management and personnel? The author goes on to ask several questions, such as “are the founders still present” and “are there any experienced attorneys in key positions”.  In addition to his questions, I would want to know average tenure at the company for employees in general and number of years of experience in litigation support and eDiscovery – you want a vendor that isn’t experiencing a lot of turnover with key personnel that have seen a little bit of everything in the industry.

Technical Components of the Vendor’s Operations

Here are a couple of notable questions in this section:

  • What does the vendor do to maintain the security and integrity of client data? In addition to what the author covers, I would want to know about the vendor’s policies regarding chain of custody and, if they are a hosting provider, more information about where your data is stored, including the list of security mechanisms the vendor provides and whether the data is stored in some sort of protected data center or in the public cloud.  With one, you know where your data is located, in the other, you may not.
  • With respect to review platform technology in particular, are there any compatibility issues between the vendor’s processes and either your firm’s platform or any popular platform that the opposing party may be using? The more software that has to be installed, the more potential issues may occur, so browser and platform independence is a plus when you want a smooth implementation.

Handling of Your Matter

This section gets into the breadth and scalability of services provided by the vendor and has the most questions.  The author covers services ranging from custodian interviews to forensic data collection to Early Case Assessment to logical document determination for scanned files without document breaks, as well as hosting pricing and production capabilities.  Very often, you may have a need for services that you didn’t anticipate up front, so it’s important to get a thorough understanding of how the vendor provides those additional services in case you need them.  And, it’s important that their pricing structure is straightforward so that you can predict your eDiscovery costs with reasonable accuracy up front.

I love question list articles like this because each one usually has a little bit different take and identifies at least a couple of unique questions to help select the right provider.  As I see other articles and blog posts out there with good questions for eDiscovery providers, I’ll try to share them as well.

So, what do you think?  Do you have any other questions that you ask to select an eDiscovery provider?  Please share any comments you might have with us or let us know 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.

Breaking News: The BIG Battle between Apple and the FBI is Over – For Now: eDiscovery Trends

Last week, we reported that the FBI said that it might no longer need Apple’s assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.  Looks like that was the case.

According to CNN Money (FBI says it has cracked terrorist’s iPhone without Apple’s help, written by Jackie Wattles and Laurie Segall), the Department of Justice says the FBI has accessed the iPhone used by one of the gunmen in the San Bernardino terrorist shooting, with the help of an unnamed third party.  Saying that it has successfully retrieved the data from the phone, the Justice Department is asking the court to vacate its order from last month for Apple’s assistance.

“The FBI has now successfully retrieved the data stored on the San Bernardino terrorist’s iPhone and therefore no longer requires the assistance from Apple required by this Court Order,” DOJ spokeswoman Melanie Newman said in a statement.

Government officials did not go into detail about what was found on the phone.

The two sides were due in court last week, but the judge granted a last minute request from the DOJ to postpone the hearing, saying an unidentified “outside party” came to the FBI with an alternative method for hacking into the phone.  On Monday, the DOJ said the method only works on this particular phone, which is an iPhone 5C running a version of iOS 9 software.

A law enforcement official, speaking to reporters on condition of anonymity, would not reveal how it pulled off this hack. He would not name the “third party” that helped the FBI. And he refused to say whether the FBI will disclose this hacking method to Apple so the company can protect future phones from being hacked this way.  “We can’t comment on the possibility of future disclosures at this point,” the law enforcement official said.

Last month, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides have battled over the issue in court over the past month.

So, who is this “outside party”?  Was Steve Jobs resurrected over the weekend?  It was Easter, after all.  :o)  Regardless, it appears that the dispute is over – at least until the next time that the DOJ and the FBI need to hack into an Apple device.

So, what do you think?  Do you think we will see more disputes like this in the future?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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