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Electronic Discovery

The Judge in the Most Famous eDiscovery Case is Retiring: eDiscovery Trends

If you follow eDiscovery, you probably have heard of the Zubulake case, which is probably the most famous case in eDiscovery.  The judge from that case — Shira A. Scheindlin of the U.S. District Court for the Southern District of New York – is retiring effective April 29.

In a letter announcing her retirement last Wednesday, Scheindlin, 69, said she will join a “large” New York City law firm, but plans to spend most of her time working on alternative dispute resolution (ADR) matters. In the letter Judge Scheindlin stated the following:

“After 21.5 years of service on the district court, I have decided to leave the bench as of April 29, 2016. These have been the best years of my life in which I have had the pleasure of working with wonderful colleagues and the opportunity to work on many important and interesting cases. While I will no doubt miss both the work and my colleagues, I am looking forward to taking on new challenges in the private sector. I plan to spend the bulk of my time on ADR matters including work as an arbitrator and mediator and in other neutral capacities – with the hope of doing a fair amount of public interest work as well as working on commercial matters.  I will also become of counsel to a large New York City law firm where I anticipate assisting in client and pro bono matters, teaching and mentoring associates, and engaging in public speaking and writing.  I thank you all for your friendship and support over the past years and hope to work together again in other capacities.”

In the Zubulake v. UBS Warburg case, Scheindlin issued key rulings that included classification of accessible vs. inacessible data and a new seven factor balance test for cost-shifting of discovery costs, among other precedents.  Another groundbreaking case from an eDiscovery standpoint was Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, where, in her ruling where she issued sanctions against the plaintiffs, Scheindlin defined negligence, gross negligence, and willfulness from an eDiscovery standpoint.

Along with Daniel Capra, Scheindlin also published a book in 2009, The Sedona Conference’s Electronic Discovery and Digital Evidence in a Nutshell, which addresses several issues related to the use of electronic information in litigation.

In addition to her noteworthy eDiscovery rulings and teachings, Scheindlin also made impact in other areas, including ordering the NYPD to reform its stop-and-frisk policing policy in 2013 and, earlier this year, ordering the SEC to return $21.5 million from an insider trading settlement paid by Level Global Investors Ltd. and another $9 million to a hedge fund in the same case.  She also approved a class-action antitrust settlement between sports fans and Major League Baseball over pay-TV game broadcasts.

As noted above, Scheindlin told colleagues in her letter that she will join the firm to assist in client and pro bono matters, and to mentor and teach associates.  Lucky associates!

So, what do you think?  Will her legacy influence the decisions of other judges going forward?  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.

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: eDiscovery Case Law

In Moore v. Lowe’s Home Ctrs., LLC, No. 14-1459 RJB (W.D.Wash. Feb. 19, 2016), Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Case Background

In this discrimination case, the plaintiff filed a Motion to Compel Production of Improperly Withheld Documents and Responses to Discovery Regarding Destruction of Plaintiff’s and Other Witnesses’ Email.  In her Motion to Compel, the plaintiff requested (among other things) for the Court to order the production of documents withheld on the basis of privilege and work product and compel additional searches for, and production of, emails responsive to the plaintiff’s discovery requests.

With regard to the documents withheld on the basis of privilege and work product, the defendant claimed that it properly withheld communications between non-attorneys because privilege extends to corporate employees for confidential communications with corporate attorneys and for confidential communications relating to legal advice from those attorneys.

As for the additional searches requested by the plaintiff (due in part to the emails in the plaintiff’s possession that were not uncovered in the defendant’s search), the plaintiff asserted that the defendant should demonstrate that it performed a diligent search, that the defendant should conduct additional searches using terms requested by the plaintiff and that these new searches be conducted without including Plaintiff’s first or last name, on the email accounts of each witness.

In response, the defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074, that the relevant emails from 2012 were likely deleted and that a search using the 88 newly requested search terms (including annoy*, bull, click*, dad, date*, hand, rack, rod, box) in conjunction with removing Plaintiff’s name from the search would result in hundreds of thousands of irrelevant emails.

Judge’s Ruling

With regard to the documents withheld on the basis of privilege and work product, Judge Bryan ruled that “Defendant states that it anticipated litigation as of April 25, 2013…Therefore, documents created prior to that date are not work product. Similarly, investigative communications made before April 25, 2013, in relation to Plaintiff’s complaints and termination fall outside the realm of legal advice and are thus not privileged. Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.”  As a result, the defendant was ordered to “produce documents and communications dated before April 25, 2013, relating to investigations into Plaintiff’s complaints and termination.”

With regard to the additional searches requested by the plaintiff, Judge Bryan stated:

“Plaintiff’s request for email searches is overly broad and not proportional to the case…While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.”

So, what do you think?  Should the parties have been ordered to meet and confer regarding the search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.

FBI May Be Able to Unlock Terrorist’s iPhone without Apple’s Help: eDiscovery Trends

In court on Monday, 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.

According to The New York Times (U.S. Says It May Not Need Apple’s Help to Unlock iPhone, written by Katie Benner and Matt Apuzzo), in its court filing, the government said an outside party had demonstrated a way for the FBI to possibly unlock the phone used by the gunman, Syed Rizwan Farook. The hearing in the contentious case — Apple has loudly opposed opening the iPhone, citing privacy concerns and igniting a heated debate — was originally set for Tuesday.

In its filing, the Justice Department, while noting that the method must be tested, stated that if it works “it should eliminate the need for the assistance from Apple”. The Justice Department added that it would file a status report by April 5 on its progress.  Judge Sheri N. Pym, the federal magistrate judge in the United States District Court for the Central District of California who was set to hold the hearing, agreed to grant the Justice Department’s motion to postpone the hearing.

As the article notes, “The emergence of a potential third-party method to open the iPhone was a surprise, as the government said more than a dozen times in court filings that it could open the phone only with Apple’s help. The FBI director, James B. Comey Jr., also reiterated that point several times during a hearing before Congress on March 1.”

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.

In the meantime, everyone from Google Chief Executive Sundar Pichai to Donald Trump has weighed in on whether Apple should help unlock the iPhone for the investigation.  In addition, Apple claimed that had the passcode to Syed Farook’s iPhone not been reset hours after the shooting (at the consent of the FBI), the company would have been able to initiate a backup of the phone’s data to its associated iCloud account in order to retrieve its contents.  And, PCWorld reported that if San Bernardino County had been using a Mobile Device Management (MDM) service on its employees’ devices, they “would have been able to clear the device’s passcode in a matter of seconds” and the whole issue would have been moot (at least this time).

So, what do you think?  Who is this outside party and will they be able to eliminate the dispute between Apple and the FBI or only delay it?  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.

Defendants Claim of Lightning Strike and Power Surge Doesn’t Save Them from Sanctions: eDiscovery Case Law

In a recent post in Craig Ball’s excellent blog, Ball in your Court, Craig stated that “you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI”.  So, if you claim that your devices are hit by lightning, causing your relevant ESI to be lost, does that make it more or less likely that you will be sanctioned?  :o)

In InternMatch, Inc. v. Nxtbigthing, LLC, et. al., No. 14-05438 (N.D. Cali., Feb. 8, 2016), California District Judge Jon S. Tigar, finding that the defendants “consciously disregarded their obligations to preserve relevant evidence” when they discarded various electronic devices after experiencing an alleged power surge without checking to see if they could recover any files from them, granting an adverse inference instruction sanction and plaintiff’s attorneys’ fees.

Case Background

In this trademark infringement case, the plaintiff requested copies of any documents, including electronic documents, relating to the defendants’ defense that it had continually and extensively used the disputed trademark. The defendants responded (and the owner of the defendant company (Chad Batterman) stated in his deposition) that a lightning strike in 2011 and a power surge in April 2015 had destroyed responsive documents, including corporate records central to the parties’ dispute and marketing materials that allegedly established prior use of the trademark.

in November 2015, the plaintiff filed a motion for terminating sanctions, accusing Defendants of intentionally destroying the electronic versions of the documents.

Judge’s Ruling

Using the newly amended FRCP Rule 37(e) as a guideline, Judge Tigar also considered the five factors identified by the Ninth Circuit in determining whether the terminating sanction is justified:

(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.

With regard to the defendant’s duty to preserve and whether that duty was upheld, Judge Tigar found “that at least by January 2015, Defendants knew about the present action and were under a duty to preserve relevant evidence.  The evidence shows that Defendants violated this duty…Prior to discarding the desktop, Batterman did not make any effort to determine whether the hard drive on the desktop was salvageable or any data could be recovered from it…As a result, the parties can only access the few existing paper copies of the relevant documents, rather than the electronic files, which would include valuable information such as the creation and modification history of the files.”

Continuing, Judge Tigar stated: “The Court finds that at the very least, Defendants consciously disregarded their obligations to preserve relevant evidence. There is no evidence that Defendants took any steps to preserve relevant information after the litigation began…After the alleged power surge, Defendants failed to identify whether data from the electronic devices might be recoverable, and instead simply discarded the devices.

The Court also finds Defendants’ evidence that the surge occurred in the first place to be unbelievable. Not only is the alleged chronology of events highly improbable, but Defendants’ story is filled with inconsistencies. The Court does not know what actually happened to the missing evidence, if it ever existed, but concludes that Defendants have failed to show that it was lost in a power surge.”

While finding that sanctions were warranted, Judge Tigar concluded “that sanctions short of entry of default are appropriate” and granted the plaintiff’s request for an adverse inference instruction sanction, as well as attorneys’ fees associated with bringing the Motion for Terminating Sanctions.

So, what do you think?  Should the termination sanction have been awarded?  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.

eDiscovery Daily Is Sixty Six! (Months Old, That Is)

Let’s get our kicks on Route 66!  Sixty six months ago yesterday, eDiscovery Daily was launched.  It’s hard to believe that it has been 5 1/2 years since our first three posts debuted on our first day, September 20, 2010.  Now, we’re up to 1,375 lifetime posts, and so much has happened in the industry that we’ve covered.  And, yes, we’re still crazy after all these years for committing to a daily post each business day, but maybe we’re crazy like a fox!

Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

Thanks for your support!  Our subscriber base and daily views are bigger than ever!  And, we owe it all to you!  Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.

Court Rules Plaintiff’s Duty to Preserve Did Not Extend to Employee’s Internet History: eDiscovery Case Law

In Marten Transport, Ltd. V. Plattform Advertising, Inc., No. 14-02464 (D. Kansas, Feb. 8, 2016), Kansas Magistrate Judge Teresa J. James denied the defendant’s Motion for Spoliation Sanctions, ruling that, although the plaintiff had a duty to preserve relevant ESI as of Fall 2013, that duty to preserve did not extend to the internet history of one of its employees until June 2015, and by then the internet history was lost.

Case Background

In this action under the Lanham Act for trademark infringement and unfair competition, the plaintiff accused the defendant of making unauthorized job postings to the defendant’s sites using the plaintiff’s trademarks and information after the plaintiff terminated its agreement with the defendant.  Plaintiff’s counsel sent a cease and desist letter in September 2013 and ultimately filed suit in September 2014.

In January 2015, the plaintiff served its Rule 26 disclosures identifying one of its employees (Jolene Vinck), as an individual “believed to have discoverable information relating to the matter.”  In June 2015, Defendant’s counsel sent a letter to the plaintiff alleging that after the defendant removed all of the plaintiff’s job postings from its website on September 17, 2013, the plaintiff logged back in and created six job postings on five separate dates.

In September 2015, as part of its first supplemental production, the plaintiff produced a December 2013 email to Vinck from a third party informing her that the relationship with the defendant had been terminated, which included Vinck’s response that she didn’t know and “had been posting on there all along”.  After the defendant requested Vinck’s internet history in its second request for production, the plaintiff advised the defendant that Vinck’s internet history was no longer available as she received a new work station in February 2015 in the ordinary course of business, and the plaintiff did not have access to any web browsing history relating to any computer assigned to her prior to February 2015.  After attempting to confer, the defendant filed a motion seeking spoliation sanctions due to the plaintiff’s failure to preserve Vinck’s internet history on the previous computer.

Judge’s Ruling

As directed by the Court during the hearing on the subject motion, the plaintiff subsequently filed Declarations regarding its unsuccessful efforts to search for and locate the previous computer and regarding whether it otherwise had the capability to retrieve Vinck’s internet history.  As a result of those efforts, Judge James indicated that “the Court is satisfied that Plaintiff has made thorough and reasonable good faith efforts to locate Computer 1, but it cannot be located”, concluding that “the internet history on Computer 1 is lost and cannot be restored or retrieved by other means”.

While finding that “Plaintiff had a duty to preserve relevant information, and that duty commenced in Fall 2013”, Judge James assessed the scope of that duty and determined that there was “nothing in this record to support a conclusion that Plaintiff knew or should have known that Vinck’s Fall 2013 internet history would be relevant in this case until Plaintiff received the June 16, 2015 letter from Defendant’s counsel.”  In denying the defendant’s motion for spoliation sanctions, Judge James stated:

“The stated reasons behind the 2015 amendments to Rule 37(e) further support the Court’s conclusions in this case. The general intent of amended Rule 37(e) was to address the excessive effort and money being spent on ESI preservation as a result of the continued exponential growth in the volume of ESI, along with the uncertainty caused by significantly differing standards among the federal circuits for imposing sanctions or curative measures on parties who failed to preserve ESI.  In revising Rule 37(e), the Advisory Committee expressly instructed that ‘reasonable steps’ to preserve ESI suffice; the Rule ‘does not call for perfection.’”

So, what do you think?  Should the plaintiff’s duty to preserve have extended to employees’ internet histories?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy St. Patrick’s 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.

Ex-Employee Sues Volkswagen Claiming He Was Fired for Refusing to Spoliate Documents: eDiscovery Trends

The troubles for Volkswagen continue into the electronic discovery arena.  According to the Courthouse News Service, an ex-employee of the company has filed suit, claiming that he was fired for refusing to take part in an alleged three-day purge of documents related to the automaker’s emissions-cheating scandal known as “Dieselgate”.

According to the article, Daniel Donovan (who worked in the Volkswagen Group of America’s Office of General Counsel as its Electronic Discovery Manager) says he had seven years under his belt at VW in Sept. 18, 2015, when the Environmental Protection Agency forced a recall of cars it found had been outfitted with “defeat-device” software that had been hoodwinking emissions inspectors for years.

Though the EPA’s case necessitated a legal hold on Volkswagen’s data, Donovan claimed in his March 8 lawsuit that VW’s “information technology department did not stop all deletion jobs until Sept. 21” (which was three days after they should have stopped).  Donovan also alleged that the company’s IT department was adamant about limiting access to Volkswagen data for the accounting firm conducting the independent investigation and knew it was violating the Justice Department hold by not preserving back-up disks.

Worried about “significant legal sanctions” Volkswagen could see for evidence spoliation and obstruction of justice, Donovan refused to take part in such actions and reported his concerns to a supervisor, according to the complaint.  “Donovan also asserts that he was fired because VWGoA [short for Volkswagen Group of America] believed that Donovan was about to report the spoliation of evidence and obstruction of justice to the EPA and/or the United States Department of Justice, the Federal Bureau of Investigation, or some other public body,” the complaint states.

Volkswagen told the Associated Press that Donovan’s claim of wrongful termination is without merit, claiming that his departure from the company was unrelated to the emissions scandal.

Facing penalties of up to $37,500 per day for Clean Air Act violations, Volkswagen is expected to face billions of dollars in fines.  The scandal, now widely known as “Dieselgate”, also led to the resignation of CEO Martin Winterkorn, hundreds of federal class actions consolidated in San Francisco, plus multiple investigations and congressional hearings.

So, what do you think?  Could Volkswagen have fired its Electronic Discovery Manager because he was “far from purgin”? (sorry, I couldn’t resist)  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.

I Tell Ya, Review Attorneys Get No Respect, No Respect at All: eDiscovery Trends

If Rodney Dangerfield had been an attorney, he probably would have been a review attorney…

As the volume of data in the world doubles as frequently as every 1.2 years, the challenges to manage that data in discovery compound significantly as well.  With review being the biggest component of the discovery process – as much as 80% of the cost of eDiscovery – review attorneys have become a significant participant in that review process (even in some cases where technology assisted review may be used).  That doesn’t mean that review attorneys get the respect that they may deserve.

A recent article in the Washington Post (The lawyers who are fighting for the same rights as janitors, written by Lydia DePillis) discusses the challenges facing review attorneys who are trying to pay law school debt as large as $300,000 with an hourly rate as low as $25 per hour and how a group of attorneys is organizing to do something about it.

We’ve already seen two cases filed (one was settled, one was dismissed) where attorneys have sued for overtime pay based on their claim that the review work they were performing did not actually require legal skills.  As the article notes, a contract attorney in NYC (Valeria Georghiu) has banded attorneys together with help from a union and the National Lawyers Guild to launch a website for a new group called The United Contract Attorneys, which has taken small collective actions, like asking for higher rates on jobs that require specialized language skills, for which the labor pool is smaller.  They have also advocated paying contract attorneys time and a half for overtime, arguing that most of the work doesn’t require professional judgment.

“The assumption that lawyers earn a ‘professional’ salary – and are therefore categorically exempt from overtime compensation – is simply no longer true,” Gheorghiu wrote. “As a result, Contract Attorneys are a stark example of the disappearing middle class sorely in need of higher wages.”

To get a sense of how contract attorneys are treated, I asked the Director of Review Services at CloudNine, Karen DeSouza, if she had any examples of lack of respect for review attorneys in past review projects in which she worked.  She had plenty.  For example:

  • One project where she worked when the air conditioning went out in the middle of summer in Houston. The firm’s attempt to alleviate the issue was to put grocery sack paper over the floor to ceiling windows letting in the sunlight.
  • On that same project with 140+ reviewers, the bathrooms were out of commission at times.
  • On another project, the head paralegal and attorney in charge of the project took 10-15 reviewers into the office to tell them they were going too fast without even asking what documents were being reviewed.
  • She also worked on a project where a partner in the firm didn’t want the review attorneys walking past her office, so they were asked to walk a different way to their review stations.
  • Karen has also heard about projects where the reviewers were timed for restroom breaks and had their cell phones locked up in lockers while they worked.

Needless to say, review attorneys sometimes feel like they get no respect, no respect at all.  It will be interesting to see if they can at least get more pay through lawsuits for overtime pay and by organizing together in groups like the United Contract Attorneys.

So, what do you think?  Will organizing enable review attorneys to get the respect they deserve?  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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