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Electronic Discovery

Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone: eDiscovery Case Law

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case.

Case Background

In this defamation case, the plaintiff claimed to have lost his cell phone while out walking his dog. One of the defendants found the cell phone on his front lawn near an uprooted sign endorsing his co-defendant for public office. The defendants notified the media and the police that they found the cell phone near the sign and claimed that the plaintiff must have removed the sign, which he denied and, eventually, sued the defendants for defamation.

During deposition of the plaintiff when he was asked for a photo that he had taken the night he lost his phone, he admitted that he had since wiped the phone, stating that “I’ve completely wiped the phone, as I do – did many times working for Google, putting new operating systems on. So whatever photo is – if I have it, I’ll be happy to produce it, but it’s certainly not on the phone anywhere.”  He ultimately indicated that he wiped out the contents of the phone “[s]ometime in early 2012.” He said he did that because the phone was “broken” and he “had to reinstall the operating system”.  When the defendants requested to inspect the phone and arranged to do so, the phone was provided uncharged with the charging connector damaged so that it could not be connected and charged.  In April 2014, the defendants filed a joint motion for terminating sanctions.

Trial Court’s Ruling

The trial court observed that the defendants provided “ample evidence” to show that the plaintiff delayed and obstructed their ability to inspect the phone and, when finally allowed to inspect it, the phone battery was dead and the charging mechanism had been irreparably damaged preventing the phone from being plugged into a charger.  The court added: “What is most disconcerting, however, is the action taken by [Woodell] prior to filing the lawsuit, which included allegedly capturing for his own purpose information from the phone favorable to his position, and then completely wiping clean the operating system such that all potentially relevant information retained on the phone was destroyed.”

The trial court also noted that the plaintiff, in his deposition, stated that he “wiped clean” the phone because he had done that “many times working for Google” but in his declaration he stated that Google instructed him to wipe out the “corrupted system.” In assessing the contradictory evidence, the court found that the plaintiff “was contemplating legal action in 2011, well before he destroyed the contents of the phone in 2012.”  As a result, the trial court granted the defendants’ motion for terminating sanctions, determining that it was “patently unjust” to force the defendants to continue to defend an action when they had been denied potentially exculpatory evidence, and dismissed the plaintiff’s complaint with prejudice.

The plaintiff appealed the ruling, arguing that terminating sanctions were not appropriate because there was no pattern of conduct with regard to discovery and that the trial court committed prejudicial error when it made factual and credibility findings without holding an evidentiary hearing.

Appellate Court’s Ruling

Regarding the plaintiff’s argument that sanctions were not appropriate because there was no pattern of conduct with regard to discovery, the appellate court stated “It is undisputed that the phone Woodell produced no longer contained the critical data, and the production of the phone was of no value to defendants. Woodell’s argument that the law prevented the trial court from imposing terminating sanctions when there was no pattern of discovery abuse or no violation of a prior discovery order is incorrect.”  The appellate court also found that the trial court did not abuse its discretion in finding – without holding an evidentiary hearing – that the defendants met their burden of showing that the plaintiff deliberately removed the data from the phone in anticipation of litigation.  As a result, the appellate court affirmed the lower court’s ruling to dismiss the lawsuit.

So, what do you think?  Did the spoliation warrant termination sanctions?  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.

For a Positive Outlook to Discovering Emails, You Need a Closed Outlook: eDiscovery Best Practices

Does that statement seem confusing?  Let me explain.

Let’s call this a “tip of the day”.  As you may know, at CloudNine (shameless plug warning!), we have an automated processing capability for enabling clients to load and process their own data – they can use this capability to load their data into our review platform or they can even process data for loading into their own preferred review platform if they want.  So, we can still help you even if you already use Relativity or a number of other popular platforms.

Regardless of that fact, most of our users are using the processing capability to process emails, usually from Outlook Personal Storage Table (PST) files.  Let’s face it, despite increased volumes of social media and other types of electronically stored information, emails are still predominant in eDiscovery.  And, for those users, we get one issue more than any other when it comes to processing those Outlook emails:

They still have Outlook open with the PST file opened when they attempt to upload that PST file or when they try to create a ZIP file containing the Outlook PST.

The resulting ZIP file that is created (either by the user or by our client application if the data is not already contained in an archive file) will almost invariably be corrupted or empty.  Either way, this results in a failure during processing of the loaded data – because, that data is simply corrupt.

So, my tip of the day is this: Before attempting to create a ZIP (or RAR or other type of archive) of a PST file (or before you upload it to a platform like CloudNine for processing), make sure that Outlook is closed or at least that the PST file is closed within Outlook.  For a positive outlook to discovering emails, you need a closed Outlook.

Does that make sense now?  :o)

So, what do you think?  Is email still the predominant source of discoverable ESI in your organization?  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.

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: eDiscovery Case Law

In Matthew Enterprise, Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF (N.D. Cal. Dec. 10, 2015), California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Case Background

In this price discrimination dispute between an auto manufacturer and its dealer, the defendant moved to compel the plaintiff to produce emails from the personal accounts of the plaintiff employees (because the plaintiff did not furnish all its employees with email accounts, many of them used their personal accounts for business purposes) and from the plaintiff’s customer communications database.  The plaintiff argued that the employee email accounts were outside its “possession, custody, or control,” so they were beyond the scope of party discovery. Similarly, because an outside vendor maintained and operated the plaintiff’s customer communications database, the plaintiff contended that those communications were also not discoverable. The defendant responded that the plaintiff still has control over its company information, whether it is stored in personal email accounts or in a vendor’s database.

Judge’s Ruling

With regard to the employees’ emails, Judge Grewal ruled:

“Chrysler has not carried this burden for the emails in personal accounts. Chrysler points to a Stevens Creek employee handbook that instructs employees to keep ‘internal information’ in the ‘sole possession’ of Stevens Creek, but this is not a contract and so does not create a legal right for Stevens Creek to take back any such information now stored in personal accounts.   And as Stevens Creek pointed out at the hearing on this motion, even if the court were to order that Stevens Creek collect emails from its employees’ personal accounts, Chrysler has not identified any authority under which Stevens Creek could force employees to turn them over. The Ninth Circuit has recognized that ‘[o]rdering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents.’  That is the case here.  The motion to compel production from employees’ personal email accounts is DENIED.”

As for the customer communications database, Judge Grewal had a different ruling:

“The AVV database is different.  Although the contract that governs Stevens Creek’s relationship with AVV is not before the court, Stevens Creek clearly has access to information from the AVV database that Stevens Creek pays AVV to maintain.  In fact, Stevens Creek already did ‘go to AVV and ask them to do a special production generation’ of certain data, but the data produced was not from the relevant time period. Furthermore, days before the hearing on this motion – and weeks after the motion was filed – Stevens Creek asked AVV to produce the information that Chrysler seeks here. Stevens Creek argues that Chrysler should have to subpoena information from AVV directly, but the burden of a non-party subpoena is unnecessary when the information sought lies within Stevens Creek’s legal control. Chrysler’s motion with respect to the documents in the AVV database is GRANTED.”

So, what do you think?  Should an organization have legal control of the emails related to their business that are maintained in an employee’s personal email account?  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.

LegalTech Preview: Is Predictive Coding Not “Cool” Anymore?: eDiscovery Trends

Believe it or not, but LegalTech® New York 2016 (LTNY) is just one week away!  eDiscovery Daily will be covering the show for the sixth year in a row.  And, also for the sixth year in a row, we will be conducting our annual thought leader series at the show.  More on that later.

Anyway, we thought we would take an advanced look at the show and make a couple of initial observations.  If you’re attending the show next week, let us know if you have any additional thoughts or particular areas of interest that you will be checking out next week.

Where Have all the Predictive Coding Sessions Gone?: In the past few years, sessions about predictive coding or technology assisted review (TAR) were plentiful, with two to three sessions per day at last year’s show.  This year, there appears to be only two sessions related to PC and TAR overall, with a third session discussing analytics in general.  Conversely, there are about 2-3 sessions per day discussing cybersecurity.  Is predictive coding not “cool” anymore?  I’m curious as to whether the lack of sessions is because it’s no longer “trendy” to talk about predictive coding, or that it’s assumed that most attendees already use some form of predictive coding or that it’s assumed that most do not use predictive coding?  I will be interested to get some thoughts from attendees at the show about this trend.

Number of Exhibitors Continues to Drop: Every year, I go to the exhibitor’s page of the LTNY site and count the number of exhibitors listed for the show.  Here are the counts for the past five years: 2012 – 225, 2013 – 225, 2014 – 218, 2015 – 199, this year – 174.  See the trend?  That’s a 22.7% drop in number of exhibitors since 2013.  Is that because more providers are choosing not to exhibit at LTNY?  Or there are less providers in the legal technology industry due to consolidation?  Or are more exhibitors simply opting for larger double booths, so there is less total booths available for exhibitors?  Perhaps it’s possibly a combination of all of the above factors.

There are tracks each day related to information governance and eDiscovery, so there should be plenty of interesting sessions to attend.  On Tuesday, there are three tracks related to IG and ED: Track 1 (Information Governance and Big Data), Track 2 (Disruptive eDiscovery and Data Security Trends) and Track 6 (Change is Coming: Exploring the Now and the Near of Ediscovery and Legal Services).  On Wednesday, there is one track related to ED: Track 5 (Ediscovery in Action) and on Thursday,  there are two tracks related to IG and ED: Track 3 (2016: Information Governance Challenges) and Track 4 (eDiscovery Breakthroughs: Analytics and the Changing Face of Discovery).

Here are three sessions of particular interest that I recommend checking out if you can:

  • How is Technology Being Used in Today’s Court Rooms and Cases?: The opening keynote presentation on Tuesday at 9:00am. Five US judges describe what they are currently seeing in their courts regarding big data, analytics, eDiscovery and other technologies.
  • 25 Ediscovery Warnings in 75 Minutes: Common Blunders that Befall Litigation Teams: Wednesday at 3:45pm. Expanded version of the session that was presented at ILTACON last year.  Great opportunity to hear from your colleagues (including yours truly) about real-world problems experienced in eDiscovery and how to address them.
  • Private Network Servers, Deleted Emails & Texts and Other Controversies in the News: Thursday keynote at 9:00am. Great opportunity to hear from experts Jason R. Baron, Judge Shira Scheindlin and Edward B. MacMahon, Jr. (hiyo!) on newsworthy eDiscovery challenges, such as the State Department emails and “deflategate”.

So, what do you think?  Are you attending LegalTech next week?  If so and if you see me, say “hi”!  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.

Would eDiscovery Have Identified the Correct Murderer in “Making a Murderer”?: eDiscovery Best Practices

The recently released Netflix documentary Making a Murderer has made a huge splash with hundreds of thousands of viewers (including me) having watched the 10 part documentary that was released last month. Debate has raged over whether Steven Avery and his nephew, Brendan Dassey, were wrongly convicted of murdering photographer Teresa Halbach.  Interestingly enough, some possibly deleted electronic evidence might have helped answer that question.

In an article on ACEDS (Making a Murderer: The Missing Computer Forensics Evidence), the author (Jason Krause) discusses the fact that there voicemail messages on Halbach’s phone that allegedly disappeared.  Krause discusses the information presented in the documentary regarding the voicemail messages, as follows:

“Halbach’s family reported her missing in early November 2005 after finding that they called her cellphone and received a recorded message saying the voicemail box was full. According to her family, it was not like Halbach to not check her messages and decided to alert the police that she may be missing.

However, Teresa’s ex-boyfriend Ryan Hillegas testified that he listened to her voicemails after breaking into her inbox in an attempt to learn more about where she had last been. “I had a feeling that I might know her voicemail password,” he said in the episode, in order to explain how he retrieved the voice mails. However, he claimed that he did not delete any messages.  [It was actually her brother, Mike Halbach, who stated that he had listened to her messages, though Hillegas indicated that he had accessed her phone records after also guessing Teresa’s password.]

However, the only expert called to testify in this matter was Tony Zimmerman, a network engineer with Cingular Wireless, Halbach’s phone provider. He testified that calls and messages that the phone had received, should not have filled up the full capacity of the mailbox. Avery’s lawyers speculated that someone had erased potentially incriminating messages before Halbach was reported missing.

Unfortunately, Zimmerman was not a trained computer forensic examiner and his testimony did not reflect that any investigation more rigorous than looking at Halbach’s call log.”

Krause’s article quotes David Greetham, Vice President of eDiscovery Operations with Ricoh Americas Corporation, who recalled that “as long ago as 2001 we were recovering deleted text messages from a defendant accused of drug dealing”, but also noted that “law enforcement often has budget restrictions on training and resources”, which could limit the ability to investigate such leads (back in 2005 especially).  Of course, if you’re like many viewers who believe that the Manitowoc sheriff’s department had a vested interest in seeing Avery arrested for the crime (particularly since he had filed a $36 million lawsuit against the department for his wrongful conviction in a 1985 rape case), you may think that they were less than highly motivated to pursue this lead.

Regardless of whether or not you believe that Avery and Dassey were wrongfully convicted (and, apparently, several instances of incriminating evidence regarding their potential involvement were not covered in the documentary), the question remains: Were there voicemail messages that were deleted and could they have affected the outcome of the case?  If there had been a trained computer forensic examiner on the case back then, perhaps there would have been some additional information uncovered that either pointed to a different suspect or added to the evidence that implicated Avery.  Over ten years have passed since the murder took place, so we will probably never know.

So, what do you think?  Do you find the lack of investigation of the voice mail messages disconcerting?  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.

Withheld Evidence Leads to New Trial, Resignation of Senior City Attorney: eDiscovery Case Law

This seems to be our week for verdicts being set aside due to alleged discovery violations by parties involved in the case or by the attorney representing those parties.  Thanks to Connie Scorza for the tip about this case!

In Colyer v. City of Chicago, No. 12 C 04855 (N.D. Ill., Jan 4, 2016), Illinois District Judge Edmond E. Chang granted in part the plaintiff’s post trial motion, denying the plaintiffs’ request for a directed verdict, but granting their request for a new trial after it was discovered that the defendants’ attorney had “intentionally” withheld the recording of a police dispatcher’s description of a possible suspect that was key in determining whether Chicago police officers acted with excessive force in killing a suspect in a traffic stop.  The plaintiffs also were awarded their attorneys’ fees and costs expended on preparing for the first trial, conducting the trial itself, and conducting the post-trial discovery and briefing.

Case Background

On January 7, 2011, Chicago Police Officers Raoul Mosqueda and Gildardo Sierra pulled over an Oldsmobile Aurora in Chicago’s Englewood neighborhood driven by Darius Pinex. The officers stated that they decided to stop the car because they thought it matched the description of an Aurora that other officers had unsuccessfully tried to pull over earlier that night. Mosqueda claimed he heard the description of the Aurora over his police-car radio from a dispatcher in the Office of Emergency Management and Communications (OEMC).  Mosqueda claimed during the litigation that the OEMC call warned that the Aurora was wanted for a shooting or that there might have been a gun in the car.  During the resulting confrontation (the details of which were disputed by the parties involved), Pinex was killed.  Nine months later, Pinex’s estate filed suit against Mosqueda, Sierra and the City of Chicago, alleging excessive force in violation of the Fourth Amendment.

During the case, the plaintiffs asked for the recording of what Mosqueda claimed to have heard over the radio, as well as any documents related to the recording, but the discovery responses that they did get led them to believe that no recording of the call or documents were available. From that, the plaintiffs reasonably concluded that Mosqueda was lying, had actually heard nothing, and the officers executed an overly aggressive traffic stop, so they prepared their case accordingly.

However, on the fourth day of trial, it was revealed that there was an OEMC record showing the potential availability of a recording of the call the officers heard that night, and soon afterwards, it was revealed that the recording was in fact still available, which did not mention that the Aurora had a gun or that the car was wanted for a shooting.  The plaintiffs’ counsel had to adjust their trial presentation strategy to account for the existence of the recording, but, ultimately, the jury found in favor of the defendants.  Because the recording wasn’t made available earlier, the plaintiffs moved for a directed verdict in their favor or, short of that, a new trial along with attorneys’ fees and costs.

Judge’s Ruling

In order to determine the extent of the discovery violation and the propriety of the relief sought, the Court authorized post-trial discovery.  As Judge Chang stated after the post-trial discovery was conducted:

“That discovery has shown two things. First, it has shown that Jordan Marsh, one of the City Law Department lawyers representing the officers and the City of Chicago, learned about the OEMC record before trial and knew that the recording might still be available. The Court has no choice but to conclude, based on the record evidence, that Marsh intentionally withheld this information from the Court, from Plaintiffs, and even from his own co-counsel. Second, post-trial discovery has shown that, in response to Plaintiffs’ discovery request seeking the recording and related documents, Thomas Aumann, another Law Department lawyer for the officers and the City of Chicago, failed to make a reasonable inquiry, as required by the discovery rules, to search for the recording and responsive documents. Aumann only looked for documents in a Law Department file, but he had no idea how the documents in the file were gathered, from what sources, or even who gathered them.”

Regarding Marsh’s “misconduct”, Judge Chang noted that “the Court has no choice but to conclude that Jordan Marsh intentionally concealed from Plaintiffs and from the Court the existence of the OEMC record memorializing that Maderak had sent Sergeant Lamperis CDs containing the Zone 6 Audio. After hiding that information, despite there being numerous times when the circumstances dictated he say something about it, Marsh said nothing and even made misleading statements to the Court when the issue arose. This misconduct justifies a new trial and attorneys’ fees and costs from February 19, 2015—the date that he learned of the OEMC record and the Zone 6 Audio’s potential availability—through the post-trial discovery and briefing.”

After Judge Chang’s ruling, Marsh resigned from his position later that day.

So, what do you think?  Should an attorney who intentionally withholds evidence in discovery be disbarred for that action?  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.

More Questions to Answer Before Selecting Your Next eDiscovery Platform: eDiscovery Best Practices

Yesterday, we covered the first four questions that you should ask when considering selection of an eDiscovery platform for a case or for your entire organization to use, as discussed in a recent article on Legaltech© News.  Today, we’ll cover the remaining four questions.

To recap: In Buying a New E-Discovery Platform? 8 Questions You Need to Ask First, the author (Zach Warren) reaches out to two prominent e-discovery attorneys: Gareth Evans of Gibson Dunn and John Rosenthal of Winston & Strawn, to get their takes on eight questions that firms should ask themselves before investing in an eDiscovery platform.  We’re covering them here and I’ll provide some of my own thoughts, as well.

Should I choose just one platform, or should I look at multiple to handle different parts of the process?

Rosenthal stated “No brainer – one platform – one process. Volume is the enemy. Only through using people, process and technology at each stage of the EDRM can you ultimately reduce the volume that is subject to review and, thus, the overall cost of the review.  By using one platform with a consistent tool set you have the ability to develop work flows to develop a consistent, repeatable and defensible process for attacking the volume.”  I would add that the age of eDiscovery automation is upon us and it’s no longer necessary (in most cases) to have a different platform for processing, review and production.  Choosing a single platform to handle the bulk of the eDiscovery workflow is easier than ever before.

What cost does the firm prefer, and what costs are actually present?

Rosenthal stated that “Cost is a deceptive term when it comes to e-discovery platforms because there are components to cost that may not be obvious in the vendor’s proposal”.  When it comes to software, the ability to predict costs has become more important as data volumes have made eDiscovery more expensive.  It’s important to understand whether the eDiscovery platform provider assesses charges for each user or limits the number of cases that are included, whether they charge for training and support and whether they offer options to even waive processing charges.  All of those charges make it more difficult to predict costs for the software, whether hosted or in-house.

How long is the contract for?

As the article notes, locking into a contract “can go one of two ways – it creates a partnership between the vendor and firm which leads to more specialized service, or it locks the firm into a contract while technological advances happen all around them.”  That’s assuming, of course, that your provider isn’t keeping up with those technological advances, which they may be.  If not, it may be an issue whether you’re locked into a contract or not (switching eDiscovery platforms always comes with challenges such as moving data and training users on the new platform).

Locking into a contract can also result in loyalty discounts for your firm’s commitment and it’s also a benefit to the provider because it enables their revenue to be more predictable from month to month.  It’s a true “win-win” for both parties.  But, locking into a contract is not for all firms, so it’s important to know whether you can opt for shorter term commitments or even a no-commitment, pay-as-you-go plan.

Where will the data reside?

Evans noted that in order to properly assess the firm’s capabilities, decision makers should engage a knowledgeable expert – either internally or externally if need be – to ask some key questions: “What will make more economic sense and data security sense? Is your data security robust enough to protect your clients’ data, or are you better off hosting it in the cloud with the security of a vendor?”

It’s not just eDiscovery cloud providers that are advocating cloud-based over in house solutions, law firms are beginning to do so as well.  And, it’s also important to note that not all cloud storage is the same.  Some providers use public cloud storage, such as Amazon AWS where the data could be located anywhere in the world, for their data storage while others use a protected cloud data center approach where the data resides on their servers in a known location.  How important is it for you to know where your data is located?

So, what do you think?  What questions did (or would) you ask in selecting your eDiscovery technology solution?  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.

Questions to Answer Before Selecting Your Next eDiscovery Platform: eDiscovery Best Practices

Considering selection of an eDiscovery platform for a case or for your entire organization to use?  A recent article on Legaltech© News provides some useful questions to ask to help select the solution that best meets your needs.

In Buying a New E-Discovery Platform? 8 Questions You Need to Ask First, the author (Zach Warren) reaches out to two prominent e-discovery attorneys: Gareth Evans of Gibson Dunn and John Rosenthal of Winston & Strawn, to get their takes on eight questions that firms should ask themselves before investing in an eDiscovery platform.  We’ll cover them here and I’ll provide some of my own thoughts, as well.

What do your attorneys actually use?

In the article, Evans discussed polling his own attorneys – with something as simple as a SurveyMonkey poll – to determine what platforms they like and dislike and why.  That’s certainly important information to gather.  It has also been my experience that the more attorneys you have, the less likely they are to agree on a preferred platform, so it makes sense to get a sense of the features that are most important to them as well (which conveniently leads right into the next question).  :o)

How will people use the technology?

As the author notes, “it’s important to nail down how the attorneys are actually planning on using the platform”.  Do they require sophisticated analytics capabilities?  Or an easy to use platform that mostly requires baseline functionality.  Rosenthal also notes that much of the evaluation may be done by non-attorneys, so it’s important for those non-attorneys need to spend time to understand the objectives of the case team to select technology that enables the case team to expedite the review.

It’s also important to understand the role of each person using the platform and what their proficiency level is.  Will the firm be using an experienced in-house litigation support person or outside vendor to load data?  Or will attorneys want to manage that process themselves?  With automation tools available today, more attorneys are beginning to actually load their own data.

What are the platforms’ data analytics capabilities, and do we need them?

Both Evans and Rosenthal indicated that the latest and greatest analytics capabilities are often not needed; Evans noted that high-powered analytics could be “overkill” for most users, and Rosenthal noted that “For overwhelming majority of reviews, the most sophisticated analytics such as predictive coding will not be used”.  Some analytics capabilities can be useful in all cases (e.g., domain categorization, thread identification, near-duplicate identification, clustering, etc.) and others are only occasionally needed.  Evans noted that his firm “went with a more basic platform, with the opportunity to use a more robust platform as needed for those more familiar with the technology or as a larger case demands”.  In other words, don’t buy more technology than you need.

Can the firm’s preexisting technology handle the new platform?

Evans says that bringing the firm’s IT department into the process is important.  What if you’re considering a cloud-based eDiscovery solution?  Is it still important?  Absolutely.  At CloudNine, we once had a client that was experiencing all sorts of issues accessing our cloud-based review platform – as it turned out, they had a highly secured network environment that was rather restrictive in access of sites that weren’t “whitelisted” (i.e., registered to allow full access).  Once their IT department whitelisted our site, those issues disappeared immediately.  So, it’s always important, regardless of the type of solutions you’re considering.

Those are the first four questions; tomorrow, we will take a look at the remaining four.

So, what do you think?  What questions did (or would) you ask in selecting your eDiscovery technology solution?  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 Gives Plaintiff 21.5 Million Reasons for Not Spoliating Emails: eDiscovery Case Law

When you spoliate data, you can lose even after you’ve won…  :o)

In Hausman v. Holland America Line-U.S.A., et al., No. CV13-0937 BJR (W.D. Wa., Jan 5, 2016), Washington District Judge Barbara Jacobs Rothstein vacated a $21.5 million verdict awarded to a man injured by a closing cruise-ship door in 2011 and ordered a new trial, after the plaintiff’s former assistant alleged that he deleted emails that could hurt his case.

Case Background

The plaintiff sued the defendant in 2013, stating that he suffered dizziness and seizures after an automatic sliding glass door improperly closed and struck his head as the vessel approached Honolulu. After a two-week trial in October, a jury awarded him $21.5 million.

However, the matter did not end there. Approximately two weeks after the trial concluded, the defendants were approached by the plaintiff’s former personal assistant who informed them that the plaintiff had deliberately sabotaged the defendants’ pre-trial discovery efforts, alleging that he: (1) Deleted and/or failed to disclose the existence of emails that he knew were relevant to this lawsuit, (2) Tampered with witness testimony, (3) Fabricated and/or exaggerated the extent of his alleged injuries, and (4) Testified falsely at trial.

Through witness testimony and supporting documents from the personal assistant at an evidentiary hearing held in December, the following allegations were made:

  • The plaintiff panicked when he learned that he would have to produce emails responsive to certain terms and began searching for and deleting those emails over “several days”;
  • He instructed her to delete all email correspondence between the two of them from her computer and phone, which she proceeded to do;
  • He discussed hiring someone to “scrub” his computer and that claimed he had used a large magnet to damage his home office computer’s hard drive; and
  • He had a second personal email account that he used while she was employed as his personal assistant, but that he did not disclose this account to the defendants.

In support of her testimony, the defendants produced copies of 60 emails that she was able to recover from her computer and/or phone after she deleted them, approximately 1/3 of which contained search terms that should have triggered their production.  In one of the deleted emails, the plaintiff wrote to his assistant to say he was sore after spending most of the day on a 10-foot ladder using a fire ax to chop ice that had built up over the front porch of his house, contrary to his claim of vertigo after the incident.

The plaintiff conceded that he did not produce those emails and that nearly one-third of the emails contain the Court-ordered search terms, but claimed the failure to produce these emails was not the result of misconduct on his part, but simply as part of his routine practice of clearing out his inbox.

Judge’s Ruling

In making her ruling, Judge Rothstein stated that “the credibility of Ms. Mizeur and Mr. Hausman is at the heart of this motion: Ms. Mizeur charges that Mr. Hausman intentionally sabotaged Defendants’ discovery efforts and is lying to cover his misconduct; Mr. Hausman charges that Ms. Mizeur is a bitter ex-employee who is lying because she wants to wreak havoc on his life. Thus, this Court must assess the credibility of Ms. Mizeur and Mr. Hausman.”

Finding the former assistant’s explanation regarding a check that she wrote to herself from the plaintiff’s account as an approved expense as “credible”, Judge Rothstein stated “[i]n short, this Court finds Ms. Mizeur to be a truthful witness.”

As for the plaintiff, not so much.

“The same cannot be said for Mr. Hausman”, Judge Rothstein stated. “As a witness, he came across evasive and untrustworthy. He appeared to weigh each answer, not for its truthfulness, but to assess whether it would damage his case. Mr. Hausman also seemed to capitalize on his alleged brain injury when it was convenient for him. He was confused or claimed memory loss when confronted with a question or exhibit that appeared to undermine his claims, yet was animated and full of information when his testimony supported his case.”

Finding “that Plaintiff did not meet his burden of establishing by clear and convincing evidence that the withheld information was inconsequential”, Judge Rothstein concluded “that a miscarriage of justice occurred in this case”, vacated the judgment entered in the case and ordered a new trial.

So, what do you think?  Was this sanction excessive?  Is it ever too late to sanction a party for intentional spoliation of data?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks, as always, to Sharon Nelson’s excellent Ride the Lightning blog for the tip!

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

Court Orders Sanctions Against Defendant for Spoliation of Emails and Other Documents: eDiscovery Case Law

Now, that we’ve recapped last year’s cases, let’s start covering cases for this year…

In Ocwen Loan Servicing, LLC v. Ohio Public Employees Retirement System, No. 654586/2012 (Supreme Court of New York, New York County, December 7, 2015), the Court, determining that the defendant had spoliated data, found that the plaintiff had not demonstrated sufficient facts to warrant striking the defendant’s affirmative defenses, but opted to order an adverse inference instruction and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.

Case Background

In this action to recover principal distributions from the defendant, the defendant, at the direction of in-house counsel, distributed a written litigation hold notice to certain employees who were deemed likely to possess documents relevant to the dispute.  In addition, the defendant’s IT department saved emails in an enterprise email archiving system.  Despite the preservation, the defendant objected to the plaintiff’s discovery requests and did not produce any responsive documents during a period where disputes over the plaintiff’s motion for summary judgment were happening, until sometime after the court instructed the parties to go forward with discovery.  The defendant ultimately produced documents responsive to the plaintiff’s discovery requests.

However, several months into discovery, the defendant revealed that due to a “synchronization error,” emails that were preserved in the email archiving system that were subject to the ligation hold were accidentally purged, resulting in the content of 101 responsive emails being lost (though the defendant was able to recover and produce metadata from the lost emails).  Due to that issue and other instances of supposed spoliation by the defendant (including one email that was ultimately produced by another party that had communicated with the defendant), the plaintiff filed an instant motion for sanctions, asking the Court to strike the defendant’s affirmative defense of detrimental reliance, or, in the alternative, order a preclusion sanction or adverse inference.

Court’s Ruling

Finding that the duty to preserve began as early as April 2011 and no later than May 2011, the Court found “that OPERS’ had control of – and access to” lost or destroyed ESI in May 2011” and that the defendant wiped the computer of a key retired employee after the plaintiff had rejected a settlement offer from the defendant.  The court also found that the plaintiff had shown that at least some of the deleted ESI was relevant to the case.

Despite this, the court opted for the lesser sanction sought by the plaintiff, noting:

“Here, Ocwen has demonstrated prejudice as a result of OPERS’ failure to preserve France’s ESI and Bloomberg messages. However, the “extreme sanction” of striking OPERS’ affirmative defense is not appropriate in this case because Ocwen was able to obtain some evidence to disprove detrimental reliance, namely the August 2009 message sent from Gleacher to France…Since the loss of potentially relevant ESI is not fatal to Ocwen’s rebuttal of OPERS’ sixth affirmative defense, the imposition of an adverse inference as to that charge is appropriate and ‘reflects an appropriate balancing under the circumstances.’”

As a result, the court ordered an adverse inference instruction against the defendant and also ordered the defendant to pay the plaintiff’s attorneys’ fees and costs in preparing the instant motion for sanctions.

So, what do you think?  Was that the appropriate sanction?  Or should the defendant have been sanctioned at all?  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.