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Electronic Discovery

Information Governance vs. Search Doesn’t Have to Be a Battle After All: eDiscovery Trends

As will soon be reinforced in our upcoming thought leader interviews, one of the major focus areas at this year’s LegalTech® New York 2015 (LTNY) was a continued emphasis on Information Governance (IG). One of our perennial interviewees, Ralph Losey, has some thoughts about the battle in the legal tech world between IG and Search and reveals that it doesn’t have to be a battle after all.

In the post Information Governance v Search: The Battle Lines Are Redrawn on his excellent e-Discovery Team® blog, Ralph states that last year, he “came to believe that Information Governance’s preoccupation with classification, retention, and destruction of information was a futile pursuit”, termed IG activities as “inefficient and doomed to failure” and instead “embraced the googlesque approach of save and search”.

When Ralph expressed those viewpoints, he (not surprisingly) “created a controversy” and received quite a backlash, including “a distinguished leader of IG who bristled at my challenges” who “insisted that everyone in her very large corporation could easily comply with her lengthy retention schedules”. However, other members of the IG leadership “responded to the opposition with dialogue”, which enabled Ralph to learn that “IG, like Search, is not a monolith, that there are various factions and groups within IG”. Ultimately, Ralph determined that his “quarrel is, instead, with the old-liners, the Records Manager strata of IG who are obsessed with ESI classification and killing” (that Ralph categorizes as “caterpillars”). “To those” (a.k.a., the “butterflies”) “who have let go of that traditional role, and already been reborn as multimodal, AI-enhanced Information experts, I have no quarrel.”

Ralph has a lot more to say in the post, noting that ESI “grows and changes too fast for traditional governance” and concludes that “Information Governance is actually a sub-set of Search, not visa versa”. He also provides a nice graphic to illustrate just how much data is created in the digital universe every 60 seconds (see the top of this post). Remember a little over a year ago, when we noted that 3.4 sextillion bytes of information had been created in close to ten months in 2013? Well, according to EMC’s latest ticker, 6.1 sextillion bytes have been created since January 1, 2014. Yikes! We’ve provided a link to another infographic at the bottom of this post, courtesy of Domo.com, that provides even more info about the amount of data created every 60 seconds. Enjoy!

By the way, Ralph just posted his 500th blog post, which is a tremendous milestone. Congrats, Ralph! Up to now, Ralph noted that he has been posting weekly (since November 2006) and his posts have “morphed into several thousand word essays”. At eDiscoveryDaily, we probably write 2,500 to 4,000 words per week over five posts; Ralph writes that much (and often more) in his one post a week.

Now, Ralph has indicated that his e-Discovery Team® blog will be changing to a monthly format and that he will begin writing the blog “for advanced readers only”. I look forward to see how the future posts will look, but will miss my Monday morning routine of sitting down with a cup of coffee and reading Ralph’s latest post (at least for the weeks without a new post). Keeping a blog going day after day (or even week after week) is not easy. Kudos to Ralph for keeping it going for over eight years (so far).

So, what do you think? Do you think the old way of information governance is “inefficient and doomed to failure”? Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Birthday to my wonderful and beautiful wife, Paige Austin!  We got engaged one year ago today.  Best thing that’s ever happened to me!  🙂

infographic

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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

You Don’t Get a Second Chance to Make a First Document Production Request: eDiscovery Case Law

In Allison v. Clos-ette Too, LLC, No. 14 CV 1618 (LAK)(JCF) (S.D.N.Y. Jan. 9, 2015), New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Case Summary

In this employment dispute, the plaintiff originally requested ESI from the defendants in July 2014, without specifying a format. The defendants responded to the plaintiff’s demands later that month, and supplemented their response on various dates and the plaintiff did not object to the format of these productions. However, when the defendants requested that all ESI be produced in native format, the plaintiff was inspired to make a reciprocal request regarding the documents previously produced by the defendants. Following an oral discussion and request by plaintiff’s counsel that the defendants reproduce the earlier production in native format, the defendants declined to do so and the plaintiff filed the instant motion to compel.

Judge Francis dealt with the plaintiff’s request swiftly, as follows:

“Under Rule 34 of the Federal Rules of Civil Procedure, a party may specify the form in which electronically stored information is to be produced. Fed. R. Civ. P. 34(b)(1)(C). “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). The plaintiff did not originally object to the format of the defendants’ productions…She does not appear to contest that it is “reasonably usable,” nor does she even allege that native format documents would be more useful to her. As “[a] party need not produce the same electronically stored information in more than one form,” Fed. R. Civ. P. 34(b)(2)(E)(3), the plaintiff’s motion to compel is denied.”

So, what do you think? Should the plaintiff have been entitled to a second production? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here’s Another Resource from EDRM That You May Not Know About: eDiscovery Webinars

If you’re like me, you get a lot of email invites to webinars for all sorts of topics. Most are free and I wish I could attend them all, but I have a day job (beyond my role as editor of eDiscoveryDaily, I’m also VP of Professional Services for CloudNine), so I don’t have a lot of free time and have to pass on most of them (including many that I’d like to attend). If that’s true for you too and the webinar that you’re missing is provided by EDRM, you might be happy to know that you can probably still view it, whenever you have time.

EDRM uses BrightTALK, which is a technology media company that provides professional webinar and video solutions to a variety of industries, including eDiscovery, to schedule and host its webinars. Via the BrightTALK site, you can register to attend upcoming EDRM webinars that have been scheduled – such as the one coming up tomorrow (February 18) titled Cross Border Issues in eDiscovery, sponsored by UBIC, from 1:00 to 2:00 pm Central time. Here is the link to sign up.

Busy tomorrow and can’t attend? You can still catch the webinar later on – via that same link. At the bottom of the page, you’ll see two tabs: Live and Recorded and Upcoming. Currently, there is a 29 next to the Live and Recorded tab, indicating 29 previously recorded webinars by EDRM.

Did you miss the webinar earlier this month titled Assembling the Team to Complete the eMSAT? You can still catch it here, as well as the first two webinars in the eMSAT series (Understanding the EDRM eDiscovery Maturity Self-Assessment Tool and Building the Business Case for the eMSAT-1). So, if you want to learn plenty about the new eMSAT tool provided by EDRM’s Metrics team (and previously covered by this blog here), you can do so at your own pace.

In fact, that’s true for 11 webinars held by EDRM in 2014. And also for webinars held back as far as May 30, 2012 (nearly three years ago), when EDRM conducted a webinar, sponsored by AccessData, about early data assessment, titled Early and Often. Each of the webinars also includes an Attachments button to enable you to download presentation materials, including PowerPoint slides (when available) for later reference.

All you’ll have to do is to register for a free BrightTALK account – if you’ve attended a webinar in the past, you probably already have a login account – and log in when you want to catch a webinar. It’s that easy.

So, what do you think? Are you like me and can’t always find time to attend webinars during the work day? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Announcing Fifth Annual LTNY Thought Leader Series!: eDiscovery Trends

The appearance of the dancing light bulb can only mean one thing – it’s time for another thought leader series! Over our nearly 4 1/2 years of our existence, eDiscoveryDaily has published several thought leader interviews from various thought leaders throughout the eDiscovery community, including an annual series of interviews at LegalTech New York (LTNY). For the fifth consecutive year, we’re pleased to introduce the schedule for this year’s series, which will begin next Monday, February 23.

Here are the interviews that we will be publishing over the next few weeks:

Monday, February 23: Brad Jenkins, President and CEO of CloudNine™. Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Wednesday, February 25: James D. Zinn, Managing Director of Huron Consulting Group. James is the Laboratory Director for Huron’s National Digital Evidence Laboratory. He manages a team of professionals in the efficient and effective performance of digital evidence and computer forensics examinations. James also helps organizations develop and improve their business processes and technology to provide efficient and cost-effective electronic discovery and computer forensic examinations.

Friday, February 27: Alon Israely, Manager, Strategic Partnerships, Business Intelligence Associates (BIA). Alon has over eighteen years of experience in a variety of advanced computing-related technologies and currently leads the Strategic Partner Program at BIA.

Monday, March 2: Tom O’Connor, Director of the Gulf Coast Legal Technology Center. Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems. A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.

Wednesday, March 4: Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP. Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice. An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration and as trial lawyer and senior counsel at the Department of Justice. He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.

Friday, March 6: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee. As President of Socha Consulting LLC, George offers services as an eDiscovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support.

Monday, March 9: Ralph Losey, Partner and National eDiscovery Counsel for Jackson Lewis, LLP. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery, a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and the creator of the Electronic Discovery Best Practices (EDBP.com) model.

Wednesday, March 11: Craig Ball, Law Offices of Craig D. Ball, P.C.A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media. He currentlyblogs on those topics at ballinyourcourt.com.

Thanks to everyone for their time once again in participating in these interviews!

Want to look back at previous years’ interviews? Here are links to our 2014, 2013 and 2012 interview series.

So, what do you think? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: eDiscovery Case Law

In Bertoli et al. v. City of Sebastopol, et al., No.A132916 (Ct. App. Ca. Jan. 20, 2015), the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Case Summary

The plaintiff, after being hit by a car while walking in a crosswalk, was rendered permanently physically and mentally disabled. Her attorney served PRA requests seeking electronically stored information (ESI) on the defendant in anticipation of her personal injury lawsuit. There was an initial request for collision reports, about which the defendant maintained it provided several records and offered for the plaintiff’s attorney to indicate which additional collision reports he wanted.

When the plaintiff served an additional 62 ESI requests, including requests to search private computers that the plaintiff believed could contain responsive documents, the defendant objected to the 62 separate requests as “overly extensive, overly broad and, in some cases, unlimited in time.” The defendant made suggestions to narrow the requests, and the plaintiff offered to pay for a third-party eDiscovery vendor to assist with the searches, but the disputes continued. Once the personal injury lawsuit was filed, the defendant set a deadline for the plaintiff’s attorney to complete his review. Ultimately, the parties could not reach an agreement on the ESI requests and the plaintiff filed a Petition for Writ of Mandate under the Public Records Act for relief.

In June 2011, the trial court – having “carefully weighed the competing interests at stake” – denied the petition. In its order, it noted that the defendant had shown a “remarkable degree of openness and cooperation” in its response to the plaintiff’s PRA requests and characterized the relief sought in the Petition as an “unprecedented fishing expedition” which would “constitute an alarming invasion of property rights, an extravagant use of limited city resources, and an unwanted green light for immoderate discovery.” Pursuant to the Public Records Act, the trial court deemed the petition “clearly frivolous” and ordered for the plaintiff to pay the defendant’s requested attorneys’ fees, which had risen from the initial request of $42,280 to $82,380. The plaintiff appealed the trial court’s finding of clear frivolousness in August 2011 and appealed the amount of fees awarded in March 2012.

The appellate court’s analysis agreed with the trial court’s finding that the plaintiff’s requests constituted an undue burden, but stated that “the mere fact that the Petition was impermissibly overbroad and therefore properly rejected by the trial court does not necessarily mean that it was entirely without merit. Rather, as stated above, it is an open issue whether and to what extent public records may be obtained from private computers under the PRA. Further, there was evidence that several current employees had responsive documents that were not disclosed and that certain city council members, at least, used their home computers for City-related business. Thus, despite the overbreadth of the Petition, it was not, on that basis, clearly frivolous.” As a result, the appellate court reversed the order for attorneys fees and costs.

So, what do you think? Should the unduly burdensome requests be enough to justify reimbursement of attorneys fees or was the appellate court decision correct? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Despite Weather and Travel Issues, Exhibitors Happy with Last Week’s LegalTech: eDiscovery Trends

As we noted on Monday, for the second year in a row, weather caused significant travel delays and cancelled flights at last week’s LegalTech® New York 2015 (LTNY). As a result, on the last day of the show, I decided to tour the exhibit hall and ask some of the exhibitors their thoughts about this year’s show, how it compared to previous years and whether American Lawyer Media (ALM) should consider moving LTNY to a different (i.e., warmer) time of year. Here is some of their feedback.

Good Exhibit Hall Traffic, Despite the Travel Issues: By and large, most exhibitors I spoke to were happy with the traffic in the exhibit hall and felt it was comparable to previous years. Kelly Struck, Marketing Director at Huron Legal, noted that “we did have weather issues again early on, especially in Chicago where I came from. Despite that, traffic in the exhibit hall appeared to be steady and picked up on Wednesday as more people made it into New York for the show.” Shawn Gaines, Director of Marketing at kCura also observed that “the traffic around the booth was solid” and that their Relativity hands-on labs in Concourse A “got crowded, with particular interest in Relativity Analytics (standing room only!), Processing, and Binders”.

And, Debbie Caldwell, Communications Director at Exterro, was even more positive, stating that “Traffic was great for Exterro, despite the weather and travel issues. We had good traffic in the booth, back-to-back meetings throughout the show in our suites and great attendance at our Judges Survey Release press reception. We had a great show!”

Most Exhibitors Also Happy with ALM and the Hilton: By and large, exhibitors were happy with ALM’s handling of the show and the Hilton Hotel as the venue. Caldwell noted that “ALM always makes the process easy. Henry (Dicker, Executive Director of LegalTech) does a great job in orchestrating the event and taking care of the vendors. Exterro is happy with how the show is managed.”

Struck observed that “It seemed like there were a lot more advertisements this year, in the lobby and everywhere else as well”, but didn’t seem to mind, noting that “it’s a great opportunity to show the brand.” And, Alon Israely, Manager of Strategic Partnerships with BIA (and a thought leader interviewee again this year), stated that “the Hilton is a great venue” and expressed “a ton of confidence” in ALM “continuing to do a great job, even with the management changes resulting from the senior people retiring this year.”

Not everyone was completely happy, however. One area that was suggested where ALM could improve was the number of ALM contacts for exhibitors to coordinate with and communication issues internally within ALM, which one exhibitor noted cost them to lose the booth spot that they’ve had for years when updated contact information didn’t get to the correct contact in time.

For the Most Part, Exhibitors Prefer to Keep the Show at the Same Time of Year: While acknowledging the weather has caused travel issues, most exhibitors would prefer to keep the show at the same time of year. Struck noted that “I have heard a few other people suggest that. But, I think the majority of people coming to LegalTech expect it to be around the beginning of February and set their calendars accordingly.” She also observed that it’s “probably less expensive for ALM to host the show this time of year as well” and indicated that “if ALM were to ever consider moving the show, they would have to plan for it years in advance to give attendees and exhibitors time to adjust their schedules, product launches, etc.”

While acknowledging that he was “stranded in North Carolina en route” this year, Gaines indicated that “we do plan a lot of our activity around the show, so it’s good to have a consistent date that’s not next to other events like ILTA or our own user conference, Relativity Fest.” Caldwell was strongly against any move, stating that “having LegalTech New York take place at the beginning of the year is positive for Exterro and the industry. It allows us to share our vision early in the year with customers, prospects and the media on our corporate and product initiatives. Moving it to a different time could be disruptive and does not guarantee that we will eliminate weather or travel issues.”

So, what do you think? Should ALM consider moving LTNY to a different time of year? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Data Breaches are Up, But Records Breached are Down: Cybersecurity Trends

One of the most discussed topics at last week’s LegalTech® New York 2015 (LTNY) was cybersecurity. And, with good reason, as it seems as though every other day, there is another report of a data breach (last week, it was health insurance company Anthem with an estimated 80 million people affected). Now, 27001 Academy has prepared an informative infographic with stats regarding 2014 data breaches and an offer of a free eBook with cybersecurity best practices.

Here are some key statistics:

  • Data Breach Incidents in 2014: The number of reported incidents rose from 614 in 2013 to 783 in 2014 – a 27.5% increase.
  • Records Exposed in 2014: However, the reported number of records exposed in breaches dropped from 91,982,172 in 2013 to 85,611,528 in 2014 – a 7.1% decrease.
  • Breaches by Month: Last year, January had the highest number of breaches with 113, 40 more than the next highest month (August with 73). February had the lowest number of breaches with 44.
  • Breaches by Industry: Breaches in each measured industry rose last year, with government/military breaches showing the biggest percentage rise – over 53% from 60 in 2013 to 92 in 2014. The healthcare industry had the greatest number of breaches – 333 in 2014, up from 271 in 2013 (a 22.9% increase). The potential cost for breaches in the healthcare industry is estimated to be as much as $5.6 billion annually.
  • Breaches by State: California organizations were more than twice as likely as any other state to experience a breach – 120 total breaches affecting 112 organizations. Texas and New York were second and third with 57 and 50 breaches respectively. It appears that Rhode Island was the only state without a reported data breach in 2014.

For the full infographic, click here. Thanks to Sharon Nelson and her always excellent Ride the Lightning blog for the tip – her post regarding the infographic is here.

On the page with the infographic, 27001 Academy also provides a link to download a free eBook, 9 Steps to Cybersecurity, written by Dejan Kosutic. It’s designed to be a primer on cybersecurity basics, written in an easy-to-understand format. It’s 80 pages, so it’s pretty comprehensive, covering topics ranging from types of security incidents to cybersecurity myths and basics to steps and standards for implementing. I downloaded it, looks promising.

So, what do you think? Has your organization, or have you personally, suffered a data breach? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: eDiscovery Case Law

In Herron v. Fannie Mae, et al., 10-943 (RMC) (DC Feb. 2, 2015), DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “Contrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

In this case, the plaintiff, a former vice president who returned to the defendant in 2009 as a consultant to help implement U.S. Department of Treasury mortgage foreclosure prevention programs, sued the defendant for wrongful termination, claiming she was fired after reporting what she believed were problems with how the defendant was handling those programs. In her four page order, Judge Collyer made clear her disgust with the process, as follows:

“The parties are inching towards the end of discovery, the time for which has been extended repeatedly. Most recently, this Court declared that all discovery will terminate at the end of February. The parties bring yet another discovery dispute before the Court and request a telephone conference (the Court’s preferred method of resolving discovery issues).

Much as the Court admires the advocacy of counsel, it is exhausted with these disputes. Contrary to its usual practice, the Court will rule immediately, in writing, based on Plaintiff’s letter dated January 30, 2015 (Letter) addressed to the Court and attachments and Fannie Mae’s letter dated February 2, 2015 addressed to the Court and attachments.”

With regard to the plaintiff’s request for “both documents and testimony from a Fannie Mae representative about . . . [t]he process by which bonuses were awarded…[and] [t]he criteria used by management…showing how corporate goals regarding the MHA Program (including HAMP…) were met”, Judge Collyer rejected the plaintiff’s requests stating:

“Even as narrowed by the parties, these deposition and document-request topics are highly overbroad…Her allegations of wrongful termination from a single contractor position on a single Program do not entitle her to the entirety of the confidential internal presentations and deliberations on executive bonuses by the Board of Directors for all of Fannie Mae’s executive staff for two years…These topics could have, and should have, been laser focused. They were not and will not be enforced.”

Judge Collyer also ruled on the plaintiff’s requests for 30(b)(6) witness testimony, granting the request on a limited basis in one instance and requiring the defendant to designate two previous deponents as 30(b)(6) witnesses to the extent of their prior testimony or produce a different 30(b)(6) witness.

So, what do you think? Are there WAY too many disputes regarding discovery today? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Miscellaneous Observations About LegalTech: eDiscovery Trends

Did you attend LegalTech® New York 2015 (LTNY) last week? We did, and for the fifth year in a row(!), we interviewed several industry thought leaders to get their thoughts on the significant trends for 2015. We will be publishing a schedule for those interviews in the next few days and will publish those interviews over the next few weeks. As for the show itself, as I fly back from NYC (after my weekend here with my lovely wife!), here are some of my miscellaneous observations.

Weather: For the second year in a row, weather caused significant travel delays and cancelled flights. Some were delayed for several hours in arriving, while others never made it at all. Should American Lawyer Media (ALM) consider moving LTNY to a different time of year to minimize the travel issues? That was one question that I asked the thought leaders and I got varied responses (more to come on that). Despite the weather issues, LTNY seemed to be better attended than last year, at least based on my conversation with others who made it to the show both years.

Although I was in that group that was delayed for several hours, at least I made it this year! 🙂

Hilton and the demise of the Lobby Lounge: For those of us who have been coming to LTNY for years and look to have meetings there, we have gotten used to the Hilton layout and the availability of the lounge beyond the lobby and the Bridges bar for available seating for those meetings. For the meetings that I had scheduled, I had proposed the lobby lounge as the location (you could usually get a seat in there if you were patient). Imagine my surprise to find that the lobby lounge had been removed and replaced by a much smaller executive lounge (which was only open to hotel guests). Furthermore, the Bridges bar was reserved by ALM for private events the entire show and other options (such as the hotel restaurant) were diminished too. Obviously, ALM has no control over the removal of the lobby lounge, but, hopefully next year, they will avoid reserving the Bridges bar again. Meetings are an important part of the show and you need places to meet.

Free Judges Panel Sessions: Kudos to ALM, however, for scheduling three free judges panel sessions that were CLE or Ethics credit eligible, that included several notable judges, including Judge Andrew J. Peck, Judge James C. Francis and Judge Frank Maas of New York, Ronald J. Hedges (Former New Jersey Magistrate Judge), Judge Elizabeth D. LaPorte of California and the retired Judge John Facciola of the District of Columbia. The sessions gave all attendees the opportunity to hear the judges’ viewpoints about key cases in 2014 that dealt with spoliation sanctions, their thoughts about why the proposed FRCP amendments may not change anything and what’s wrong with discovery and how attorneys (and even judges) address it. Terrific information for those who attended.

In the What’s Wrong with Discovery session, Judge Facciola had (in my opinion) the quote of the show in discussing attorneys’ failure to limit the scope of documents for review in discovery when he said “I want attorneys that go for the jugular, not those who go for the capillaries.” Good stuff.

So, what do you think? Did you attend LTNY last week? What are your thoughts about the show? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: eDiscovery Case Law

In Newill v. Campbell Transp. Co., 2:12-cv-1344 (W.D. Pa. Jan. 14, 2015), Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

Case Summary

In this workplace injury case related to the plaintiff’s employment with a shipping company, the plaintiff sought, via his motion, to preclude the defendant from introducing several of his Facebook posts into evidence, on the basis that they are irrelevant or would be unfairly prejudicial. The defendant responded that the posts were relevant to show that following the accident the plaintiff retained the ability to engage in physical activities despite his claim of injury.

The defendant sought to introduce Facebook posts where the plaintiff discussed “physically taxing activities” such as painting, landscaping, flooring, going to the gym, undercoating a truck, and “going physical”. The plaintiff also apparently advertised his services as a handyman and suggested that “no job [was] 2 big or 2 small.” The Defendant also argued that the posts were relevant to the question of the plaintiff’s employability, which the defendant’s expert testified would have been improved if he adopted a “sensible social medial presence” and eliminated posts containing “casual or rough language” on Facebook.

Judge’s Decision

Judge McVerry found that “posts from Plaintiff’s Facebook account ‘that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.’”  He also stated, however:

“While the Court understands that Plaintiff may be embarrassed by the content of some of his posts, that alone is not a sufficient basis for excluding the posts under Rule 403. If, at trial, Defendant attempts to introduce a particular Facebook post that Plaintiff feels is unduly embarrassing, the issue of the admissibility can be re-raised at that time and the Court reserves the discretion to exclude it pursuant to Fed. R. Evid. 611 (granting the court discretion to bar harassment and undue embarrassment of a witness).

As to Defendant’s second argument, the Court is not convinced that Costantini should be permitted testify about Plaintiff’s inane postings on Facebook when discussing the issue of his employability. To be sure, potential employers do often consider an applicant’s Facebook account when making a hiring decision. But Costantini’s testimony that Plaintiff’s Facebook account “probably is not giving the employers a good impression” is nothing more than speculation. There is nothing in the record actually linking his Facebook posts to his inability to obtain new employment until recently or suggesting that the types of jobs for which Plaintiff was qualified would be harder to obtain because of his Facebook posts. Without such a link having been established, Costantini has no basis to offer an opinion on these matters.”

As a result, Judge McVerry denied the portion of the plaintiff’s motion “insofar as it seeks to prevent Defendant from introducing Facebook posts that tend to contradict his claimed damages”, but granted the portion with regard to the defendant’s expert being permitted to rely on Plaintiff’s Facebook posts in assessing his employability.

So, what do you think? Should the defendant be prohibited from introducing posts that demonstrate the plaintiff’s employability? 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.