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Electronic Discovery

One Step to Go for the Federal Rules Changes. Will it Be a Formality?: eDiscovery Trends

Wednesday, Supreme Court Chief Justice John G. Roberts submitted proposed amendments to the Federal Rules of Civil Procedure to Congress via an order, accompanied by letters to Speaker of the House John Boehner and President of the Senate (and Vice President of the US) Joe Biden.

The text of the letters to each of them is as follows:

“I have the honor to submit to the Congress the amendments to the Federal Rules of Civil Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code.

Accompanying these rules are excerpts from the Reports of the Committee on Rules of Practice and Procedure to the Judicial Conference of the United States containing the Committee Notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code.”

Assuming that Congress doesn’t introduce legislation to affect the timing or content of the rules (which most people, including our thought leader interviewees this year, do not expect), the rules will become effective on December 1 of this year.

A copy of the letters and the order approving the rules changes (as well as the changes themselves) can be found on the Supreme Court site here.

We’ve been covering the progress of Rules adoption and the associated debate regarding the rules – especially Rule 37(e) – for over two years. For the background, check out our previous posts here, here, here, here, here, here and here.

So, what do you think? Do you expect the proposed changes to have a positive effect of how discovery is handled? 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.

It’s Draft Day! What Skills Does Your eDiscovery Quarterback Need?: eDiscovery Best Practices

If you’re a fan of a pro football team, you’ve been waiting months to see what players your favorite team will be drafting. That wait ends tonight as the annual NFL draft kicks off. When it comes to selecting football players, the most important player is the quarterback and teams put quarterback prospects through a series of tests (both physical and mental) to attempt to determine their likelihood for success in pro football (and they still get it wrong – a lot).

Like a football team, every litigation team navigating the discovery process needs a good “quarterback” – only we tend to call ours “project managers”. What skills does your eDiscovery “quarterback” need? Let’s take a look at some of the skills and qualifications that I look for in a good eDiscovery project manager.

  • Actual Case Experience: A good discovery PM candidate doesn’t have to have a law degree (even a JD) to be a successful project manager. Plenty of paralegals and IT professionals can be excellent project managers. If you’ve been following this blog for a long time, you know that I’m an IT professional, not a lawyer. I like to say that “I’m not a lawyer, but I play one on the Web”. But, I have managed many discovery projects and worked with attorneys for over 25 years. What’s important is the actual case experience that you’ve had, working with and managing other team members (including clients and outside vendors) in completing deliverables and meeting deadlines in all phases of the discovery life cycle.
  • Technical Proficiency: A good discovery PM candidate doesn’t have to have a Computer Science degree either. But, the candidate should have a good understand how data is stored (and that even “deleted” data may be recoverable), a good understanding of Office and most common applications and able to “speak geek” well enough to work with us IT types. In short, the best type of candidate is a lawyer whose “hobby” is being a computer geek OR an IT professional whose “hobby” is the litigation process.
  • Knowledge of the EDRM Model: If you don’t know the flow and phases of the EDRM model, you need not apply. If you only know the EDRM model and don’t know about any of the vast frameworks, standards and resources that have been developed by industry professionals over the past ten years (many of which we’ve covered here), you probably need not apply either.
  • Familiarity with Discovery Rules: Knowledge of Federal and applicable State Rules that pertain to discovery (and preferably the current proposed rules changes covered here and here, among other places) would be expected.
  • Considerable Experience with at Least One Litigation Support Software Platform: A lot of job postings that I have seen require experience with a particular software application – the application that they are using. It’s great if you can get it, but I would rather select a sharp, technically proficient candidate who learns quickly than a less qualified candidate that happens to know the preferred platform better. While the first candidate may require a little more ramp up time, he/she has greater upside in the long run.
  • Strong Verbal and Written Communication Skills: You can get a sense of a candidate’s verbal communication skills during the interview process. What about their written skills? I actually like to give PM candidates an assignment scenario where they are asked to communicate a project issue to an imaginary client (me) via email and explain how that impacts the scope and schedule, then evaluate that example as part of the evaluation process.

I also like to ask if they read any publications or blogs on eDiscovery. If they read Ball in Your Court, e-Discovery Team®, Ride the Lightning, Litigation Support Guru, Bow Tie Law’s Blog or Complex Discovery (to name a few), that’s bonus points! And, of course, if they read eDiscovery Daily, that’s major bonus points (everyone likes a suck-up). 🙂

That’s not a comprehensive list above, but it represents some of the key attributes that I seek. What qualifications do you look for in an eDiscovery “quarterback”? Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – The player pictured is Bryce Petty, quarterback prospect from my alma-mater, Baylor University. He may not know the EDRM model, but I think he will make a terrific quarterback in the NFL. You heard it here first. 🙂

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.

This Guy Says that Computers Could Eventually Replace Lawyers – In the Courtroom: eDiscovery Trends

Over four years ago, we covered an article in The New York Times that discussed how the use of artificial intelligence could lead to replacing “armies of expensive lawyers” during the eDiscovery process. Now, a new article in The Wall Street Journal online goes a step further, speculating that “computers will eventually pass the legal bar exam and defendants will be given the right to be represented by a computational attorney if they so wish”.

What Big Data Means for the Legal System, written by Robert Plant (not the Led Zeppelin singer, but a professor at the University of Miami, as well as an author and blogger for Harvard Business Review & WSJ Leadership Expert) discusses how artificial intelligence researchers have used the legal domain as an exploratory space to test theories for decades, but with limited success. The advent of big data has changed that, enabling us to analyze not only text but many other data types such as pictures, email, video and voice. As Plant notes, this capability “allows lawyers to look for patterns and correlations across vast data sets previously inaccessible.”

Plant uses analysis of judges’ behavior in cases as an example, suggesting the ability to obtain answers to questions like: “How does the Judge rule on certain types of cases can be studied by date and time? Does the judge dismiss cases for a consistent pattern of reasoning? How do holidays affect decisions? Do they sentence harder at different times of the day?”

Because of big data analytics, Plant predicts that “[m]any of the routine tasks now performed by entry-level lawyers or paralegals will increasingly be undertaken by analytics; case and trial strategies will be developed by legal informatics as will increasingly jury-selection strategies.” As a result, Plant takes the concept to a somewhat controversial conclusion, as follows:

“It is clear that with advances in machine learning, computers will eventually pass the legal bar exam and defendants will be given the right to be represented by a computational attorney if they so wish and thus court rooms could see a truly new form of human computer interaction in which the computer answers the question ‘does the client have a case?’”

Must he “ramble on”? Computers replace lawyers?!? In the courtroom?!? He sure isn’t showing the legal profession a “whole lotta love”, is he? (sorry, I couldn’t resist)

Clearly, we’ve seen the application of artificial intelligence result in significant benefits during the eDiscovery process, with several cases over the past few years endorsing technology assisted review (including this latest case just last month) as well as initiatives to apply technology to information governance (such as the Information Governance Initiative launched last year). Is it that far of a stretch to apply technology to decision making in the courtroom too? Or is the author simply “dazed and confused”? (ok, I really will stop now)

So, what do you think? Will clients someday be represented by computers in the courtroom? Please share any comments you might have or if you’d like to know more about a particular topic.

Clipart from Clipartheaven.com

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.

“How Much Will it Cost?” is Not Necessarily the Right Question to Ask: eDiscovery Best Practices

This is a topic we covered last fall, but it has come up again several times with clients (and prospective clients) recently and since we have so many new viewers and subscribers in the past couple of months (thanks to our recently announced education partnership with EDRM and some very kind words from Craig Ball on his excellent Ball in Your Court blog), it bears discussing again.

By far, the most important (and, therefore, the most asked) question asked of eDiscovery providers is “How much will it cost?”. Actually, you should be asking a few questions to get that answer – if they are the right questions, you can actually get the answer you seek.

With these questions, you can hopefully prevent surprises and predict and control costs:

  • What is the Unit Price for Each Service?: It’s important to make sure that you have a clear understanding of every unit price the eDiscovery provider includes in an estimate. Some services may be charged per-page or per-document, while others may be charged per gigabyte, and others may be charged on an hourly basis. It’s important to understand how each service is being charged and ensure that the price model makes sense.
  • Are the Gigabytes Counted as Original or Expanded Gigabytes?: For the per gigabyte services, it’s also important to make sure that you whether they are billed on the original GBs or the expanded GBs. Expanded GBs can be two to three times as large (or more) as the original GBs. Some services are typically billed on the original GBs (or at least the unzipped GBs) while others are typically billed on the expanded GBs. It’s important to know which metric is used; otherwise, your ESI collection may be larger than you think and you may be in for a surprise when the bill comes.
  • Will I Get an Estimate in Advance for Hourly Billed Services?: When you ask for specific hourly billed services from the provider (such as professional consulting or technician services) to complete a specific task, it’s important to get an estimate to complete that task as well as advanced notification if the task will require more time than estimated.
  • What Other Costs are Billed?: It’s not uncommon for other charges to be included in invoices, such as user fees for hosting services (not all hosting providers charge user fees, so it’s important to comparison shop) or project management, which can be an important component to the services provided by the eDiscovery provider. And, don’t forget charges for supplies and shipping. The rates charged for these services can vary widely, from non-existent to exorbitant. Understanding what other costs are being billed and the rates for those services is important to controlling costs.
  • If Prices are Subject to Change, What is the Policy for Those Changes and Notification of Clients?: Let’s face it, prices do change, even in the eDiscovery industry. In ongoing contracts, most eDiscovery providers will retain the right to change prices to reflect the cost of doing business (whether they exercise those rights or not). It’s important to know the terms that your provider has set for the ability to change prices, what the notification policy is for those price changes and what your options are if the provider exercises that right.

With the right questions and a good understanding of your project parameters, you can get to the answer to that elusive question “How much will it cost?”.

So, what do you think? How do you manage costs with your eDiscovery providers? 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.

Denial of Motion for Spoliation Sanctions Leaves Plaintiff Less Than Glad: eDiscovery Case Law

In Gladue v. Saint Francis Medical Center, 1:13-CV-186-CEJ (E.D. Mo. Mar. 24, 2015), Missouri District Judge Carol E. Jackson denied the plaintiff’s motion for evidentiary and monetary sanctions due to spoliation of evidence, finding that the defendant did not have a duty to preserve emails deleted as part of routine IT operations, had diligently attempted to recover deleted emails and that the plaintiff failed to show that any of the unrecovered emails were relevant to her claims.

Case Background

In this employment case, the plaintiff’s employment was terminated in December 2011. As part of the defendant’s routine IT operations, the plaintiff’s email account was purged in March 2012. At that time, plaintiff had not filed either a lawsuit against the defendant or a charge of discrimination with the Equal Employment Opportunity Commission – the defendant was first contacted by the plaintiff’s then-attorney in June 2012 regarding the plaintiff’s employment discrimination claims.

On June 16, 2014, after this lawsuit was filed, the plaintiff submitted a request for production of all of her work emails and her calendar. Because her account had been purged, the defendant undertook several efforts to retrieve the emails, including conducting a search for all emails sent to or received from plaintiff in the accounts of every employee identified in the parties’ Fed. R. Civ. P. 26 disclosures. The defendant ultimately produced over 24,600 pages of emails and related documents to the plaintiff in two productions (nearly three months before the close of discovery), but acknowledged that there were no guarantees that every lost item was retrieved. The plaintiff filed a motion for evidentiary and monetary sanctions due to spoliation of evidence.

Judge’s Opinion

Finding that a “litigation hold was not required at the time plaintiff’s e-mails were deleted”, Judge Jackson ruled that the defendant “has shown that plaintiff’s e-mails were deleted as part of a routine maintenance procedure, rather than in bad faith. Moreover, defendant has diligently attempted to recover the missing documents.”

Judge Jackson also noted that the defendant produced documents to the plaintiff “nearly three months before the close of discovery and almost four months before the deadline for filing dispositive motions. Thus, as to the timing of the productions, no exceptional circumstances justify sanctions.” She also found that “plaintiff has failed to show that any of the unrecovered e-mails are relevant to her claims” and noted that “plaintiff is incorrect in her contention that defendant is at an advantage because it can use the undisclosed e-mails in this litigation” as “Fed. R. Civ. P. 37(c)(1) forbids defendant from using any document that has not been produced to plaintiff at summary judgment or trial.”

As a result, Judge Jackson ruled that “plaintiff is not prejudiced and no exceptional circumstances exist to justify sanctions” and denied her motion for sanctions.

So, what do you think? Did the plaintiff’s motion really ever stand a chance? 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.

How Blue Was My Valley? Not Blue Enough to Cite the Defendant for Discovery Violations: eDiscovery Case Law

In Malone v. Kantner Ingredients, 4:12CV3190 (D. Neb. Mar. 31, 2015), Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs’ motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.

Case Background

Over two years, the defendants had produced documents from various sources, including 140,000 electronic files located on a computer image of the data stored on the defendant’s file servers. Despite that, multiple conferences were held with the court regarding the parties’ discovery disputes and the plaintiffs filed five motions to compel additional documentation from the defendant.

In October of 2014, the plaintiffs claimed the defendants failed to produce all documents responsive to the plaintiffs’ discovery requests, particularly sent emails and invoices of transactions between Blue Valley Foods and the defendants. In an attempt to quell the plaintiffs’ ongoing distrust of the defendants’ discovery efforts, the defendants were ordered to locate their servers and determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging, as well as produce responsive invoices and sent mail from those servers.

In response to that order, the servers were received by defense counsel, who confirmed that the data image from the shared server data received by defense counsel at the outset of the case matched the data set and data amount on the servers. The servers were sent to the defendants’ forensic expert, who fully imaged them and provided a full copy of that imaging to the plaintiffs’ forensic expert. After receiving the server imaging, the plaintiffs’ forensic expert performed a word search of the data and located some documents containing the words “Blue Valley” that were not previously disclosed by the defendants in an electronic format. The plaintiffs presented evidence that some of those documents were responsive to production requests served by the plaintiffs, but they were not previously disclosed to the plaintiffs in an electronic format.

The plaintiffs moved for an order to show cause, alleging the defendants, their counsel, and counsel’s paralegal failed to comply with the order, “destroyed or tampered with evidence, and provided untruthful information to the court regarding the existence of discovery requested by the plaintiffs.”

Judge’s Opinion

Judge Zwart noted that, after receiving the actual servers, “the defendants did not repeat their search of the server data for responsive discovery…But the order required the defendants to determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging: It did not require the defendants to repeat their ESI review and production if the 2012 initial data imaging appeared to be full and complete.”

She continued: “By providing the full image of the servers to Plaintiffs’ expert, the defendants produced the emails, invoices, and associated metadata as required under the court’s order. While the plaintiffs incurred expense for forensic review of that data, the plaintiffs’ use of their own forensic expert was reasonable—and perhaps necessary—to bring some closure to the ongoing ESI discovery battle… The defendants allowed Plaintiffs to ‘see for themselves’ whether any additional documentation was on the Kantner servers. And the court is convinced this was the only means of convincing Plaintiffs that they had received everything. Had the parties discussed how to collect, review and produce ESI at the outset, perhaps the cost of two experts, and other discovery-related fees and costs, could have been avoided. But those discussions never occurred.”

With regard to the missed documents discovered by the plaintiff, Judge Zwart, referencing several sources for best practices for searching, indicated that “At most, the plaintiffs offered evidence of mistakes made during defense counsel’s 2012 manual review of the electronic files. Manual review is still considered by many as the ‘gold standard’ for electronic document review. But human error is common when attorneys are tasked with personally reviewing voluminous electronically stored information.” She also cited Reinsdorf v. Skechers (2013), which stated: “The discovery process relies upon the good faith and professional obligations of counsel to reasonably and diligently search for and produce responsive documents…However, while parties must impose a reasonable construction on discovery requests and conduct a reasonable search when responding to the requests, the Federal Rules do not demand perfection.”

Given that standard, Judge Zwart denied the plaintiffs’ motion to show cause.

This isn’t the first time we’ve covered rulings by Judge Zwart: click here, here, here and here to review previous rulings with eDiscovery impact that we’ve covered.

So, what do you think? Was that the right call or should the defendants have been held to a higher standard? 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. eDiscoveryDaily 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.

Almost Thirty Percent of Data Security Incidents are Due to Human Error: eDiscovery Trends

Last year, the term “data breach” became part of the broader public vernacular with The New York Times devoting more than 700 articles related to data breaches, versus fewer than 125 the previous year. And, as we’ve discussed recently, data breaches are on the rise. However, according to a new report, almost thirty percent of data security incidents are due to human error.

According to Verizon’s 2015 Data Breach Investigations Report released last week, the single biggest cause of data security incidents in 2014 was “miscellaneous errors”. These “miscellaneous errors” comprised 29.4% of data security incidents in 2014 (up from 25% in 2013), according to the report.

As Verizon notes in its report, if you take the top four causes of data security incidents – two through four respectively are crimeware (25.1%), insider misuse (20.6%) and physical theft/loss (15.3%) – “the common denominator across the top four patterns – accounting for nearly 90% of all incidents – is people. Whether it’s goofing up, getting infected, behaving badly, or losing stuff, most incidents fall in the PEBKAC (problem exists between keyboard and chair) and ID-10T (get it?) über-patterns.” As they somewhat playfully observe, “At this point, take your index finger, place it on your chest, and repeat ‘I am the problem,’ as long as it takes to believe it. Good – the first step to recovery is admitting the problem.”

While some of the errors are due to issues such as a computer malfunction or a misconfigured system, nearly 60% of the time, they’re due to a relatively simple user mistake (especially system administrators who were the “prime actors in over 60% of incidents”). Verizon breaks these down as:

  • “D’oh!”: Sensitive information sent to incorrect recipients (usually via email) comprised 30% of the miscellaneous errors that led to a data breach;
  • “My bad!”: Publishing non-public data to public web servers comprised 17%; and
  • “Oops!”: Insecure disposal of personal and medical data accounted for 12% of miscellaneous errors.

Overall, the report identifies 79,790 reported security incidents (with 2,122 confirmed data breaches) affecting at least 20 industries in 61 countries (not surprisingly, no breakout for legal). In terms of volume, two-thirds of incidents occurred in the U.S., but as Verizon notes, “that’s more reflective of our contributor base (which continues to expand geographically) than a measure of relative threat/vulnerability.”

The 70 page report covers topics ranging from victim demographics and breach trends to specific types of breach causes, including phishing and malware. It also breaks down incident types, including point-of-sale intrusions (the number one cause of confirmed data breaches at 28.5%), denial-of-service attacks and cyber-espionage. It even provides a “year in review” chronology of notable breaches (in case you missed them). The report is very informative and, at times, wryly written, which makes me forget – almost! – that Verizon dinged me for several hundred dollars of roaming charges in Europe during my honeymoon last fall (don’t get me started!).

Anyway, you can get a copy of the report here. You can register and download the report or just choose to download the report (which I did). An interesting read.

So, what do you think? Has your organization experienced any data security incidents due to human error? 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.

Discarding a Relevant Computer Results in Adverse Inference Sanctions, Not Default Judgment: eDiscovery Case Law

In Grady v. Brodersen, No. 13-cv-00752-REB-NYW (D.Colo. Mar. 23, 2015), Colorado Magistrate Judge Nina Y. Wang granted the plaintiff’s motion for sanctions against the defendant in part for failing to produce a computer that the defendant ultimately acknowledged that he discarded, but denied the plaintiff’s request for a default judgment sanction, opting for the less severe adverse inference instruction sanction.

Case Background

In this copyright infringement case filed in March 2013 due to publication of disputed images on the defendant’s web site, the District Court of Colorado entered a scheduling order on February 20, 2014, ordering Defendant to preserve all electronically stored information (ESI), including metadata, and to identify his relevant devices. A week later, on February 27, the defendant submitted his initial disclosures to the plaintiff, in which he acknowledged his computer equipment was relevant to this litigation, identified himself as custodian of the equipment, and represented that “a search through computer equipment for any discoverable material has [sic] and is ongoing. Defendant will supplement its response [sic] if necessary.”

But, on August 9, the defendant amended his initial disclosures “after discussion with lawyers regarding the whereabouts of the computer and request for additional information by Plaintiff”, stating that the computer he had owned and used during the relevant time period “died” prior to notice or anticipation of any legal action and was discarded in July 2013 (four months after the case was filed) because it was “broken”. He also stated that he had searched USB/Flash drives owned and controlled by him during the relevant time and found no relevant data. Subsequently, the defendant acknowledged in his deposition that he did not attempt to have the hard drive repaired before discarding the computer. On August 18, the plaintiff moved to compel, and the court granted the motion, ordering the defendant to produce his new computer hard drive for forensic inspection and copying.

Following the court’s order compelling the defendant to produce the new computer, the plaintiff’s forensic experts determined that the defendant began using that computer in November 2013, which was a few months after the defendant discarded the old computer and also discovered that the new computer had received a transfer of 10,091 images on January 19, 2014, nine days after the court recommended denying Defendant’s Motion to Dismiss. The experts noted that the approximately 10,000 images had a range of file modification dates reaching as far as February 2011. The plaintiff filed the motion for sanctions in November 2014.

Citing the four factor test in Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992), the plaintiff argued that:

  1. The discarded computer was the only source of evidence relating to the alteration of his Copyrighted works, so it was “severely prejudicial” to him;
  2. The defendant interfered with the judicial process when he lied under oath on his initial 26(a)(1) disclosures;
  3. The defendant was highly culpable as he discarded the equipment after the commencement of litigation; and
  4. A court-issued warning of dismissal is not necessary where the violation is severe.

Judge’s Opinion

For the most part, Judge Wang agreed with the plaintiff, stating “I find that Mr. Brodersen despoiled relevant evidence that he had an obligation to preserve. I further find that Mr. Brodersen violated Rule 26(g) by not specifying in his Rule 26(a)(1) disclosures dated February 27, 2014 which computer equipment was in his custody and control.” She also ruled that “This court finds sufficient evidence in the record before it to demonstrate that Defendant acted intentionally and with bad faith in discarding the old computer.”

As for the appropriate sanction, however, Judge Wang did not agree with the plaintiff, stating “However, in heeding the direction of the Tenth Circuit to consider the efficacy of lesser sanctions, I find that an entry of default judgment is too severe. The dual objective of protecting a litigant’s right to obtain discoverable evidence and punishing the disobedient party to deter future violative conduct is met by imposing an adverse jury instruction regarding the despoiled evidence.” So, she granted the plaintiff’s motion for sanctions in part ordering the adverse inference instruction sanction as well awarding as the plaintiff’s reasonable attorney fees and costs incurred in pursuing the motion.

So, what do you think? Was the sanction severe enough? 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.

Sometimes You May Need Turn to 34 Year Old Technology to Get the Job Done: eDiscovery Best Practices

If you’ve worked with computers for over three decades like I have, you remember some of the old ways we used computers to support litigation. Our colleague, Jane Gennarelli, covered some of those in her recent “Throwback Thursdays” series (here are the links to last year’s 12-part series: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12). But, a 34 year old software application can still be useful today.

Amy Bowser-Rollins’ excellent blog Litigation Support Guru is currently running a “Fast Tip Friday” series with videos containing fast tips (and tricks) for handling various litigation support tasks. Last Friday’s post, was titled Fast Tip Friday – Using DOS to Create File Listing.

“DOS” you say? Surely, you don’t mean venerable, old MS-DOS, which was originally introduced by Microsoft in 1981? Is that thing even still around?

Yes, it is. As, Amy demonstrates, even though we’re in the GUI age of Windows software, you can still get to DOS when you need to do so and it can still be useful to help generate file listings.

In the example that Amy walks through, she uses the DOS “dir” command (short for directory – in Windows, those are represented as folders in Windows Explorer) to generate a sample file listing. She uses parameters “/s” (to include all subdirectories within the current directory), /b (to use the “bare” format with no heading information) and “> filelisting.txt” (to write the results to a text file). She then demonstrates how you can load the resulting text file into Excel to work with your file listing.

There are parameters to show hidden or system files and to sort the files by any one of several sort options. You can also select specific files or types of files (e.g., all Excel files as “dir *.xlsx”).

File listings of directories in DOS can be useful for everything from an inventory of files to be processed or perhaps a control listing of files to be produced to perform a Quality Control check.

I have used DOS regularly to generate listing during the discovery process. In one project several years ago, I performed various searches on the corporation’s enterprise-wide document management repositories and downloaded the responsive files, then used DOS to generate control listings of each responsive set for verification and statistical analysis. Despite the fact that MS-DOS is 34 years old, it can still be useful in discovery.

Thanks, Amy, for the terrific “fast tip”!

So, what do you think? Do you use DOS to generate file listings for discovery, or any other purposes? 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.