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Electronic Discovery

Privilege Not Waived on Defendant’s Seized Computer that was Purchased by Plaintiff at Auction – eDiscovery Case Law

In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., No. C13-1034 MJP (W.D. Wash. June 13, 2014), Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

In this fraud case, after several of the named defendants settled and confessed to judgment, the plaintiffs obtained a Writ of Execution in which the King County (Washington) Sheriff seized various items of personal property, including a computer owned by one of the defendants.  The computer was sold at a public auction, and an attorney for the plaintiffs outbid a representative sent by the defendants and purchased the computer.  The plaintiffs sent the computer to a third party for analysis and requested a ruling as to the admissibility of potentially attorney-client privileged documents contained on it, while the defendants contended the actions of the plaintiffs violated ethical rules, and requested that the plaintiffs return the computer to defendants, and also requested that the plaintiff’s attorneys should be disqualified from the case.

With regard to the plaintiff’s actions, Judge Pechman ruled that plaintiffs’ acquisition of the computer was not “inherently wrongful”, noting the plaintiffs’ claim that they had not reviewed the materials on the computer at the time of the motion.  She also determined that plaintiff’s “use of a third party vendor to make a copy of the hard drive is not equivalent to metadata mining of documents produced through the normal discovery process, because whereas the hard drive might plausibly contain many documents unprotected by any privilege, metadata mining is expressly aimed at the kind of information one would expect to be protected by attorney-client privilege and/or work-product protections”.  As a result, she denied the defendants’ motion to disqualify the plaintiff’s counsel.

As for the waiver of privilege, Judge Pechman used a balancing test to determine waiver “that is similar to Rule 502(b)”, which included these factors:

  1. the reasonableness of precautions taken to prevent disclosure,
  2. the amount of time taken to remedy the error,
  3. the scope of discovery,
  4. the extent of the disclosure, and
  5. the overriding issue of fairness.

Using the analogy of where “an opposing party discovers a privileged document in the other party’s trash”, Judge Pechman considered the potential waiver of privilege.  However, because the defendant stated in a declaration that she had “someone at her office” reformat the hard drive on the computer and install a new operating system and believed her documents had been erased and were not readily accessible, she related it “to the memo torn into 16 pieces than a document simply placed in a trash can without alteration”.

As a result, Judge Pechman determined that given “Defendants’ prompt efforts to remedy the error by filing a motion with the Court and the general sense that parties should not be able to force waiver of attorneyclient privilege through investigative activities outside the discovery process and a superior understanding of the relevant technology, the Washington balancing test weighs against waiver.”  She also and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.

So, what do you think?  Were the plaintiff’s counsel actions ethical?  Should privilege have been waived?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Improving your eDiscovery Vocabulary is as Easy as 123 – eDiscovery Best Practices

Want to be better equipped to speak the “lingo” of eDiscovery and understand what you’re saying?  Here’s a glossary that can help.

As provided via the JDSupra Business Advisor site, Electronic Discovery: Glossary of 123 Commonly Used Terms, provided by Seattle law firm Lane Powell PC, is a glossary of 123 commonly used terms to help you navigate the world of Electronic Discovery.  For those of us who have been in the industry for years, call them Terms of Endearment!

From Active Data to Zip, the glossary defines 123 total terms related to eDiscovery as well as technology in general.  You get discovery terms defined ranging from Bates Number and Chain of Custody to Redaction and Spoliation and technology terms from Cache (pronounced “cash”) and Compression to Unallocated Space and VPN (Virtual Private Network).

You can review the terms from the window on the JD Supra site or download the PDF document for reference purposes.  This list comes in handy for anyone who may need a better understanding of eDiscovery and technology or simply needs a refresher on certain terms.

I did not see definitions for all of the EDRM phases (e.g., no definitions for Identification, Collection, Analysis, Processing or Presentation) and some other terms that might be useful to define (e.g., Searching), so maybe they can eventually issue a supplemented version that has 144 defined terms.  Now, that’s gross!

By the way, today is the last day that you can nominate your favorite law blog in the ABA Journal 8th Annual Blawg 100.  Get your nominations in by 5:00pm!

If you have enjoyed reading eDiscovery Daily over the past year and found our blog to be informative, we would love to be recognized!  Feel free to click on the link here to nominate us!  We appreciate the consideration!

There are other excellent legal technology blogs out there.  Click here for our previous post which lists a few of our favorites.

So, what do you think?  Do you speak fluent eDiscovery?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

eDiscovery Throwback Thursdays – The Way We Worked, circa 1980
 

In the late 1970s and early 1980s, the business world looked very different than it does today, and the field of litigation support looked very different than it does today.  Let me paint a picture for you…

  • Mainframe and mini computers were in use in many large and some mid-sized businesses.  They were, however, ‘back-office’ functions.  You didn’t see computers on office desks.  A few desks did have computer terminals, but not many. Disk drives with a capacity measured in the low hundreds of megabytes were the size of washing machines.
  • Although precursors to the internet were in early stages, only ‘computer geeks’ knew about it (and there weren’t that many computer geeks).
  • For the most part, law firms – even very large firms – did not have internal litigation support database tools.  Litigation databases were stored and accessed on the mainframe computers of service providers, which offered ‘time-share’ services.  Typically, those service providers charged a monthly storage fee based on the size of a database, and a per-hour charge for usage.
  • The timeshare databases were accessed with computer terminals – also called ‘dumb’ terminals.  Those terminals did not have screens.  Rather, you inserted a roll of thermal paper, which was ‘spit-out’ with search results (you always needed an ample supply of paper rolls so you weren’t in a bind when the paper ran out during a search session).  You hooked a telephone receiver to an acoustic coupler on the terminal, dialed the computer’s phone number, waited for the high-pitched, scratchy screech that indicated a successful connection, and then queried the database.
  • Databases consisted primarily of “coded” information like dates, authors, recipients, titles, and so on.  Many databases included ‘subject coding’.  There were no images included in litigation databases back then, and including full text didn’t get legs in the litigation support world until the mid to late 1980s.
  • Database search engines did not provide WYSIWYG interfaces or menu options.  You entered precise search commands like “Find Author=Smith-JA and Type=Letter”.
  • Most law firms did not have litigation support professionals on staff.  That work was handled by service providers.
  • Those service providers offered, for the most part, document coding services.  There were only a handful of service providers, and those providers offered services nationally.  When I took my first vendor job (in 1980), we had 5 main competitors and found ourselves all bidding on the same jobs.  The litigation support community was small, and we pretty much all knew each other.
  • No one, and I mean NO ONE, outside of our world understood what we did for a living.  On more than one occasion I heard my mother proudly explaining to a friend that I was a computer programmer.

And that’s how it was, back when I first started in this field.  In the posts to come, I’m going to give more detail on some of these points as we move on to discuss how databases were built, and how searching / retrieval worked.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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

eDiscovery Professional Profile: Do you know Cheryl Garner?
 

Cheryl Garner is the Practice Support Manager at Manning & Kass, Ellrod, Ramirez, Trester LLP – a 150 attorney law firm with six offices in the U.S. Cheryl is located in the firm’s main office in Los Angeles, but has firm-wide responsibility. She joined the firm in December 2012, after a long and diverse career in the legal field.

As Practice Support Manager, Cheryl is responsible for litigation support, paralegal staff, the Docket Department, and the Workers Compensation Hearing Representatives. She spends most of her time coordinating the work of those departments, reaching out to attorneys to ensure they have the support they need, marketing the services of the departments for which she is responsible, and educating attorneys regarding best practices and making optimal use of the technology available to them.  She describes herself as a ‘Jack of all trades’ and often steps in with rolled-up sleeves to complete tasks alongside team members. She also directly handles firm-wide litigation support and eDiscovery, working closely with service providers that process data and provide hosting platforms for large cases.

Cheryl’s first legal position was with the US Attorneys office in Chicago.  She was a member of a word processing pool for the civil and criminal teams. From there she went to work for the American Bar Association as a word processing operator, and later worked in law firms as a legal secretary and word processing operator.  As technology advanced, Cheryl recognized that opportunities in word processing would diminish, and she developed a plan for her future.  While working full-time, she completed her undergraduate studies in 2000 and in 2002 she completed an ABA-approved paralegal program.  Armed with a background that included hands-on government and law firm experience, as well as paralegal and technology experience, career opportunities broadened.  Up until 2008 she worked for large law firms providing secretarial, paralegal, technology, and trial support.  In 2008 when she moved to a smaller firm, she soon recognized it was the perfect fit for her at that stage of her career. She believes that the experience she got at the smaller firms after working primarily in larger firms has been invaluable.

In 2012, Cheryl joined Manning & Kass as Practice Support Manager, a recently created position.  The position was still in its infancy when Cheryl came on board, and she saw this as a logical progression in her career.  Cheryl enjoys her work because it incorporates – and requires – the skills she has honed and the interaction she enjoys.  The firm’s structure, having paralegals report to Practice Support, increases opportunities to introduce litigation technology to the litigation teams.  It’s a model that works well for Cheryl.

When asked about her greatest professional accomplishment, Cheryl quickly answered “Getting to where I am now in my career”.  Through hard work, foresight of the use of law firm technology, and education, Cheryl planned and crafted a career that she is proud of, one that she is good at, and one that she thoroughly enjoys.

Throughout her career, Cheryl has been active in professional organizations. While still a paralegal student, Cheryl joined the Los Angeles Paralegal Association (LAPA). Later, she sat on LAPA’s Board of Directors and was Chair of the Litigation Committee.  She is still a member today.  She is also a member of NALA (National Association of Legal Assistants), and recently earned the Advanced Certified Paralegal (ACP) designation in discovery.  She is a member of ACEDS (Association of Certified E-Discovery Specialists) and plans to sit for the CEDS certification exam in the near future.

Cheryl is also an instructor in the technology track of the ABA-approved paralegal program at California State University Los Angeles (CSULA).  Since 2011 she has taught the introductory course Law Office Technology, and more recently, Trial Technology.  She will teach Applied Technology in the Fall of 2014. Cheryl enjoys teaching because it offers her an opportunity to equip paralegals entering the field with the legal technology foundation they will need to succeed as legal professionals.

Cheryl is originally from Chicago, Illinois and started her professional career there.  She moved to Los Angeles 22 years ago with her son, who today also works in the legal industry.  While her work at Manning & Kass and teaching at CSULA take up most of her time, Cheryl finds time to enjoy ‘Chicago Style Stepping’, an urban dance that originated in Chicago and is similar in movements to’ West Coast Swing’ and Lindy Hop.  Cheryl travels to different cities to attend dancing events.  There’s a lot of camaraderie among attendees from different cities, but the dance has recently re-emerged in popularity as a competitive dance, providing attendees an opportunity to showcase stylings from their region of the country.  Although Cheryl hasn’t competed yet, she keeps the possibility open for the future.  Jazz and other styles of music are important to Cheryl and she often attends local jazz concerts and art events around Los Angles.  She’s currently looking forward to a cruise she’s planning with her sister, to an island ‘to be determined’.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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

August Case Law Pop Quiz Answers! – eDiscovery Case Law

Yesterday, we gave you a pop quiz for the eDiscovery case law that we’ve covered in the past three months. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1.  In which case was the plaintiff was ordered to produce photos of herself that were posted to Facebook?:

A. Castillon v. Corrections Corporation of America, Inc.

B. In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co.

C. Forman v. Henkin

D. None of the above

2.  In which case were sanctions imposed, even though no spoliation of evidence ultimately occurred?:

A. EEOC v. SVT, LLC

B. Procaps S.A. v. Patheon Inc.

C. Knickerbocker v Corinthian Colleges

D. None of the above

3.  In which case was over $50,000 of eDiscovery costs awarded to the prevailing party disallowed?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

4.  In what case was one party ordered to continue to share a review database with the opposing party?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

5.  In which case did the court disallow the plaintiff’s plan for predictive coding?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

6.  In what case was the defendant’s request for a deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery” denied?:

A. Koninklijke Philips N.V. v. Hunt Control Sys., Inc.

B. Elkharwily v. Mayo Holding Co.

C. Stallings v. City of Johnston City

D. Raines v. College Now Greater Cleveland, Inc.

7.  In which case did the court suggest the parties consider the use of predictive coding?:

A. Chapman v. Hiland Operating, LLC

B. FDIC v. Bowden

C. Downs v. Virginia Health Systems

D. Zeller v. So. Central Emergency Med. Servs. Inc.

8.  How much was Samsung and Quinn Emanuel ordered to pay for their “Patentgate” disclosure of confidential Apple and Nokia agreements?:

A. $1 million

B. $2 million

C. $3 million

D. $10 million

9.  In which case did the court not only reject the plaintiff’s request for sanctions, but issued a summary judgment in favor of the defendant?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

10. In which case did the court issue a severe sanction against the defendant for failure to preserve data from cloud provider Salesforce.com?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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

August Case Law Pop Quiz! – eDiscovery Case Law

We haven’t conducted a pop quiz in a while, so the “dog days” of summer seems like a good time for it.  This one is customized to the eDiscovery case law that we’ve covered the past three months.  If you’re reading the blog each day, these questions should be easy!  If not, we’ve provided a link to the post with the answer.  We’re that nice.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

1.  In which case was the plaintiff was ordered to produce photos of herself that were posted to Facebook?:

A. Castillon v. Corrections Corporation of America, Inc.

B. In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co.

C. Forman v. Henkin

D. None of the above

2.  In which case were sanctions imposed, even though no spoliation of evidence ultimately occurred?:

A. EEOC v. SVT, LLC

B. Procaps S.A. v. Patheon Inc.

C. Knickerbocker v Corinthian Colleges

D. None of the above

3.  In which case was over $50,000 of eDiscovery costs awarded to the prevailing party disallowed?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

4.  In what case was one party ordered to continue to share a review database with the opposing party?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

5.  In which case did the court disallow the plaintiff’s plan for predictive coding?:

A. Kwan Software Engineering v. Foray Technologies

B. Miller v. York Risk Servs. Grp.

C. United States v. Shabudin

D. In Progressive Cas. Ins. Co. v. Delaney

6.  In what case was the defendant’s request for a deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery” denied?:

A. Koninklijke Philips N.V. v. Hunt Control Sys., Inc.

B. Elkharwily v. Mayo Holding Co.

C. Stallings v. City of Johnston City

D. Raines v. College Now Greater Cleveland, Inc.

7.  In which case did the court suggest the parties consider the use of predictive coding?:

A. Chapman v. Hiland Operating, LLC

B. FDIC v. Bowden

C. Downs v. Virginia Health Systems

D. Zeller v. So. Central Emergency Med. Servs. Inc.

8.  How much was Samsung and Quinn Emanuel ordered to pay for their “Patentgate” disclosure of confidential Apple and Nokia agreements?:

A. $1 million

B. $2 million

C. $3 million

D. $10 million

9.  In which case did the court not only reject the plaintiff’s request for sanctions, but issued a summary judgment in favor of the defendant?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

10. In which case did the court issue a severe sanction against the defendant for failure to preserve data from cloud provider Salesforce.com?:

A. Zeller v. So. Central Emergency Med. Servs. Inc.

B. In re Text Messaging Antitrust Litig.

C. Brown v. Tellermate Holdings

D. Brookshire Bros., Ltd. v. Aldridge

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

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

Are Law Firms at an eDiscovery “Watershed”? – eDiscovery Trends
 

Perhaps so, based on the results of one survey.

As reported by Sean Doherty of Law Technology News (Survey: Law Firms Are at E-Discovery 'Watershed'), according to a survey released on July 22, sponsored by RVM Enterprises Inc. and conducted by Ari Kaplan Advisors, law firms are at a “watershed” moment when it comes to creating efficient eDiscovery models for supporting their corporate clients.

As the Introduction to the report stated, “RVM retained Ari Kaplan Advisors to engage 30 senior attorneys at many of the nation’s largest law firms in detailed conversations during the first quarter of 2014 about past, present, and future trends in the legal community.  The findings, based on these interviews, characterize the catalysts transforming the profession in an era of expansive eDiscovery and highlight how organizations are universally pivoting to remain current in their approach to client service.”

Regarding the survey participants, “73% are partners and 27% are senior eDiscovery lawyers. All are members of an eDiscovery group within their firms to varying degrees. 100% recommend eDiscovery tools and vendors to corporate counsel, and also develop and implement eDiscovery processes.”  So, these are people who are certainly eDiscovery advocates.  Here are a few highlights of the findings from the report:

  • 93% of respondents said that client expectations have changed with respect to practice support technology and related costs;
  • 73% of respondents said that their firm has an eDiscovery counsel position (though not all specifically designate their lawyers with that title);
  • 79% of respondents reported that the role of eDiscovery counsel is both an internal resource and an external marketing tool;
  • 57% of respondents stated that they have had a client request that they work with eDiscovery counsel;
  • 93% of respondents reported that a combination of individuals is engaged in the practice support technology and vendor selection process;
  • 97% of respondents outsource some portion of their eDiscovery, with the most common aspect being processing, and
  • 83% of respondents have received a client request to write off eDiscovery costs.

There is quite a bit more to the report, including other stats and specific observations from individual participants, including the challenge to bill for eDiscovery services – “Clients think that eDiscovery services should be part of the operating costs of the firm” was one observation.

Here is a link to a press release from RVM Enterprises announcing the report – the 14 page report, prepared by Ari Kaplan Advisors, is available in PDF format via a link on the press release.  Best of all, the report is FREE.

So, what do you think?  How do those stats compare to experiences in your firm?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

eDiscovery Throwback Thursdays – Collecting Documents
 

In 1978, I took my first job in litigation, with the law department of a Fortune 100 corporation headquartered in New York City. I was one of a team assembled to collect responsive documents to be produced in a major antitrust litigation. The documents were located in the corporation’s office and warehouse facilities around the country. While the process of collecting documents varied from case to case, this project was representative of the general approach to collecting documents in large-scale litigation. Let me describe how it worked.

Before travelling to a facility, reviews of custodian files were scheduled, central files to be reviewed were identified, and indices of boxes of archived materials in warehouses were reviewed.  We coordinated with an on-site administrator to ensure that the supplies we needed would be ready (boxes, manila file folders, pads, stickers, markers, etc.), and we made arrangements for a temporary photocopy operation to be set-up on site. 

Upon arrival at an office facility, we each went to our first assigned custodian office — and with empty archive boxes on hand, we’d start the review. We’d put numbered stickers on every file cabinet drawer and desk drawer to be reviewed. We’d label the outside of an archive box with the custodian’s name. Upon finding a responsive document, it was pulled out, an “out card” was put in its place in the original file (we wrote the number of pages of the document that was removed on the out card).  We created a file folder labeled with the number of the file cabinet/desk drawer, followed by the same title on the file from which the document was removed, and we placed the document in the folder, which went into the archive box.  An entire office was reviewed like this, and when we finished an office, we labeled each box with “1 of N”, “2 of N” and so on.

The next step was photocopying, which was quite an involved operation.  Most of this was ‘glass-work’ – that is, stacks of paper were not fed into the machine for bulk photocopying; rather, documents were photocopied one-by-one, by hand. This was necessary because staples, paper clips, and binder clips had to be removed, post-it notes had to be photocopied separately, spiral bound materials needed to be un-bound, and so on. A photocopy operator removed a document form an archive box, did the required preparation, made a photocopy, reassembled the original and put it back in the archive box, assembled the photocopy to match the original and placed it in a second archive box labeled the same as the first, and within the box, in a folder labeled the same as the original.  You get the picture. 

After photocopying, a second operator did a quality control review to ensure that everything copied properly and nothing was missed.  Originals were returned to the document reviewer to re-file, and the copies – which were now the ‘original working copy’ for purposes of litigation – were sent on to the next step… document numbering.  A sequential number was applied to every page using either a Bates stamp machine or a number label.  After numbering, documents were boxed for shipping.

After reviewing the office files, we usually moved on to a warehouse facility at which we used the same approach.  For the most part, the warehouse reviews were unpleasant.  Very often there was inadequate heat or air conditioning, poor ventilation, uncomfortable furniture, and lots of dust.  On the bright side, we got to wear jeans and t-shirts to work, which was unheard of in the days before ‘business casual’ and ‘casual Friday’ were the norm.

This operation was a pretty routine document collection project.  There was, however, one thing about this case that wasn’t routine at all.  After numbering, these documents were shipped to a litigation support service provider for document coding.  This was one of those rare, bet-your-company cases for which a database was built. In the next few blog posts in this series, I’ll describe the litigation support industry and a typical litigation support database.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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

Texas Supreme Court Reverses Spoliation Ruling, Remands Case for New Trial – eDiscovery Case Law
 

In Brookshire Bros., Ltd. v. Aldridge (Tex. July 3, 2013), the Supreme Court of Texas determined “that imposition of the severe sanction of a spoliation instruction was an abuse of discretion” in the trial court, reversed the court of appeals' judgment and remanded the case for a new trial.

In this case, the plaintiff Aldridge (who is the respondent in the appeal) slipped and fell at the defendant’s (who is the petitioner in the appeal) store and sued for damages after the defendant stopped paying for medical expenses.  The plaintiff’s fall was captured on surveillance video and the defendant preserved the video footage from the time plaintiff entered the store until shortly after he fell, but did not preserve the remainder of the video, which was “presumably recorded over” by early the next month.

To recover in a slip-and-fall case, a plaintiff must prove, inter alia, that the defendant had actual or constructive knowledge of a dangerous condition on the premises such as a slippery substance on the floor and the plaintiff argued in the trial court that the defendant’s failure to preserve additional video footage amounted to spoliation of evidence that would have been helpful to the key issue of whether the spill was on the floor long enough to give the defendant a reasonable opportunity to discover it.

As a result, the plaintiff moved for a spoliation jury instruction and the trial court: 1) allowed the jury to hear evidence bearing on whether the defendant spoliated the video, 2) submitted a spoliation instruction to the jury, and 3) permitted the jury to decide whether spoliation occurred during its deliberations on the merits of the lawsuit.  The jury ruled in favor of the plaintiff and awarded him over $1 million in damages. The court of appeals affirmed the trial court's judgment on the verdict, holding that the trial court did not abuse its discretion in admitting evidence of spoliation or charging the jury with the spoliation instruction.

After analysis of the law associated with spoliation, the Supreme Court stated that “the harsh remedy of a spoliation instruction is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence” and that a “failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense”.  As a result, the Court held “that a trial court's finding of intentional spoliation pursuant to the analysis set forth above is a necessary predicate to the proper submission of a spoliation instruction to the jury.”

While issuing the caveat that “[o]n rare occasions, a situation may arise in which a party's negligent breach of its duty to reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense”, the court determined that there was no evidence of the requisite intent to conceal or destroy relevant evidence or that plaintiff was “irreparably deprived of any meaningful ability to present his claim” and held that the trial court therefore abused its discretion in submitting a spoliation instruction, reversed the court of appeals' judgment and remanded the case for a new trial.

So, what do you think?  Was the reversal of the ruling the right decision or should the sanction for spoliation of evidence have stood?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.

Failure to Preserve Cloud-Based Data Results in Severe Sanction for Defendant – eDiscovery Case Law
 

In Brown v. Tellermate Holdings, 2:11-cv-1122 (S.D. Ohio Jul 1, 2014), Magistrate Judge Terence Kemp granted plaintiffs’ motion for judgment and motion to strike, ruling that the defendant could not “present or rely upon evidence that it terminated the Browns' employment for performance-related reasons” and enabling the plaintiffs to use documents produced by the defendant “designated as attorneys'-eyes-only” to be used by the plaintiffs “without restriction”, due to the defendant’s failure to preserve or produce data from their Salesforce.com database.

You have to love an opinion that begins like this:

“There may have been a time in the courts of this country when building stone walls in response to discovery requests, hiding both the information sought and even the facts about its existence, was the norm (although never the proper course of action). Those days have passed. Discovery is, under the Federal Rules of Civil Procedure, intended to be a transparent process.”

That’s how this lengthy opinion began in this case where the plaintiffs, former sales agents, sued the defendant for age discrimination after they were terminated.  The defendant responded by arguing that the terminations were performance related.  To address that argument, the plaintiffs sought records from the defendant’s through salesforce.com to demonstrate that they consistently met or exceeded their quotas. In response, the defendant “with the participation of its counsel, either intentionally or inadvertently failed to fulfill certain of its discovery obligations, leading to a cascade of unproductive discovery conferences, improperly-opposed discovery motions, and significant delay and obstruction of the discovery process.”  As Judge Kemp described, the defendant’s counsel:

  • “failed to uncover even the most basic information about an electronically-stored database of information (the ‘salesforce.com’ database);
  • as a direct result of that failure, took no steps to preserve the integrity of the information in that database;
  • failed to learn of the existence of certain documents about a prior age discrimination charge (the "Frank Mecka matter") until almost a year after they were requested;
  • and, as a result of these failures, made statements to opposing counsel and in oral and written submissions to the Court which were false and misleading, and which had the effect of hampering the Browns' ability to pursue discovery in a timely and cost-efficient manner (as well as the Court's ability to resolve this case in the same way).”

One of the defendant’s attorneys went so far as to provide these reasons to the plaintiffs as to why they could not produce the information from Salesforce.com:

  • "Tellermate does not maintain salesforce.com information in hard copy format."
  • "Tellermate cannot print out accurate historical records from salesforce.com. . . ."
  • "[D]iscovery of salesforce.com information should be directed to salesforce.com, not Tellermate."

The defendant later claimed that it was “contractually prohibited from providing salesforce.com information” and that it “cannot access historical salesforce.com data” – both of which were untrue.

Ultimately, it became clear that the defendant had not exported or preserved the data from salesforce.com and had re-used the plaintiffs’ accounts, spoliating the only information that could have addressed the defendant’s claim that the terminations were performance related (the defendant claimed did not conduct performance reviews of its sales representatives).  As a result, Judge Kemp stated that the “only realistic solution to this problem is to preclude Tellermate from using any evidence which would tend to show that the Browns were terminated for performance-related reasons” and issued the following severe sanctions:

“Tellermate shall not, in connection with either the pending summary judgment motion or at trial, be entitled to present or rely upon evidence that it terminated the Browns' employment for performance-related reasons. The documents produced by Tellermate in April, 2013 and designated as attorneys'-eyes-only may be used by the Browns without restriction, subject to Tellermate's ability to redesignate particular documents as confidential under the existing protective order, provided it does so within fourteen days and has a good faith basis for so designating each particular document. Tellermate shall produce the remaining Frank Mecka documents to the Browns within fourteen days. Finally, Tellermate and its counsel shall pay, jointly, the Browns' reasonable attorneys' fees and costs incurred in the filing and prosecution of those two motions as well as in the filing of any motions to compel discovery relating to the salesforce.com and Frank Mecka documents.”

So, what do you think?  Do the sanctions fit the activities by the defendant?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery 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.