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Electronic Discovery

Wednesday LTWC 2014 Sessions – eDiscovery Trends

As noted yesterday, LegalTech West Coast 2014 (LTWC) is happening this week and eDiscoveryDaily is reporting about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Los Angeles area with a number of sessions (both paid and free) available and at least 50 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 25 hits.  Sessions in the main conference tracks include:

10:30 AM – 11:45 AM:

Information Governance: More Than Defensible Disposition

Litigation readiness. E-discovery. Defensible disposition. Attorneys, paralegals and technology experts all benefit from their organization’s having efficient and effective processes for responding to litigation. A well-conceived information governance program that takes into account the organization’s business, technology and legal perspectives provides the foundation for these processes. This session explores how an effective information governance program can ensure that obsolete, redundant or transitory information no longer needed for operational, legal/regulatory, or historical purposes can be disposed, thereby improving timely and efficient access to relevant information during litigation.

Moderator: John Isaza, Partner, Rimon, P.C.

1:00 PM – 2:15 PM:

The Three R’s: Risk, Readiness, and Revenue!

Organizations are increasingly dependent on their electronic information for mission-critical decisions and transactions. Managing and mitigating the risks that are associated with information governance practices requires on-going monitoring and oversight. While law firms are increasingly called on to help clients address litigation and legal holds needs, this is only part of the picture.  Although Litigation Readiness prepares clients for potential litigation, new research, to be discussed in this session, shows that litigation readiness services provide a host of opportunities for the staff of law firms to help firm clients leverage the value of data beyond discovery.  These activities can potentially save organizations money, prepare them for litigation, and help law firm clients and even the law firms themselves find potential new revenue streams.

Speakers are: Bennett B. Borden, Partner and Chair, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP; Martin Tuip, Executive Director of Information Governance Solutions, ARMA International; Frank Lambert, Senior Consultant, Information Governance Solutions LLC, Theresa Shoch, Principal, UHY Advisors FLVS, Inc.  Moderator: John Isaza, Partner, Rimon, P.C.

Reducing Discovery Expenses: How to Accelerate the Discovery Process and Save Money

The cost related to discovery continues to draw the eye of lawyers and clients alike.  This session explores how technology and related analytical tools and processes can be applied to mitigate expenses.   Discussion points include:

  • The economics of eDiscovery
  • How software can reduce eDiscovery costs by maximizing the number of searches within a set timeframe, enabling litigation departments to refine searches, reduce data volume and lower costs
  • Cost savings and other benefits to legal teams and IT departments, during and beyond the eDiscovery process

Speakers are: Christopher Acosta, Director of Practice Support, Nossaman LLP; Claire Hass, Discovery Counsel, Google; Martyn Wiltshire, Director of Strategic IT Initiatives, SanDisk.  Moderator: David Cohen, Partner and Practice Group Leader, Global Records & E-Discovery Group, Reed Smith LLP.

2:45 PM – 4:00 PM:

You Owe it to Yourself: Professional Development in IG

A strategic approach to information governance is not only a best practice for any organization, but it is now a necessity.  The RIM and IG professional needs to be able to address issues on an organization-wide basis and to proactively solicit input from all the “vested interests” within the organization. This session reviews these “vested” perspectives and couples them with relevant professional development tools, certifications and accreditations to get you up-to-speed on managing your own information governance challenges in order to effectively advise clients.

Speakers are: Frank Lambert, Senior Consultant, Information Governance Solutions LLC, Theresa Shoch, Principal, UHY Advisors FLVS, Inc.  Moderator: John Isaza, Partner, Rimon, P.C.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Did you attend LTWC this 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 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.

Welcome to LegalTech West Coast 2014! – eDiscovery Trends
 

Today is the start of LegalTech® West Coast 2014 (LTWC) and eDiscoveryDaily is reporting about the latest eDiscovery trends being discussed at the show.  We will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the Los Angeles area, come check out the show – there are a number of sessions (both paid and free) available and at least 50 exhibitors providing information on their products and services.

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 12 hits.  Sessions in the main conference tracks include:

10:30 AM – 11:45 AM:

Using Mobile Technology in Electronic Data Discovery

  • Examining the benefits of mobile e-discovery
  • Addressing security challenges in conducting EDD from mobile devices
  • Combatting issues and concerns posed by BYOD practices
  • Complying with court orders and avoiding sanctions International Privacy and its Impact on e-Discovery

Speakers are: Ronie M. Schmelz, Partner, Edwards Wildman Palmer LLP; Dionne Rainey, Partner, Hunton & Williams LLP; Richard Rushing, Chief Information Security Officer, Motorola Mobility; Petra K. LaFountain, Sr.eDiscovery Advisor, Baker & McKenzie, LLP.  Moderator: Hunter W. McMahon, JD, Director of Discovery & Technology, Driven Inc.

Leveraging Data and Analytics to Optimize Information Governance

  • Exploring  how analytical technologies and TAR tools improve efficiency and compliance
  • Using predictive coding for records retention and classifying unstructured data
  • Applying best practices from using predictive coding in e-Discovery to your IG initiatives

Speakers are: David Cohen, Partner and Practice Group Leader, Global Records & E-Discovery Group, Reed Smith LLP; Gordon J. Calhoun, Partner, Lewis Brisbois Bisgaard & Smith LLP.  Moderator: Bennett B. Borden, Partner and Chair, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP.

12:45 PM – 1:45 PM:

Beyond Predictive Coding: Incorporating New Technologies into Your E-Discovery Program

  • Computational linguistics
  • Data mining
  • Language translation
  • Other “future” techniques

Speakers are: Bennett B. Borden, Partner and Chair, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP; Jeffrey Fowler, Partner, O'Melveny & Myers; Thomas Barnett, Special Counsel, eDiscovery and Data Science, Paul Hastings.  Moderator: Amy Jane Longo, Senior Trial Counsel, Division of Enforcement U.S. Securities & Exchange.

The Convergence of Data Privacy, Data Security, E-Discovery and Information Governance for Mergers, Acquisitions and Divestitures

Exploring the business, regulatory and legal risks associated with poor Data Privacy, Data Security, E-Discovery and Information Governance practices in the context of business deals including:

  • Data Privacy: data transfer, anonymization, tokenization and aggregation concerns
  • Data Security: access rights, transfer restrictions, tokenization and BYOD
  • E-Discovery: legal holds, reasonable anticipation of litigation and deal-related issues
  • Information Governance: policy and schedule harmonization, “dark and dusty” data and documents and information of inherent value

Examining high-level due diligence “best practices” in these areas which address the issues and also provide:

  • Appropriate strategic plans to support these practices
  • Specific costs associated with those plans, in turn supported by vendor and service provider bids for related services

Speakers are: James Sherer, Counsel, Baker & Hostetler LLP; Eugenio Ortiz, Quantitative Financial Analyst, GMO; James Wolf, Senior Technical Director, H5.

2:15 PM – 3:30 PM:

Innovative Solutions that Facilitate Discovery in Government Investigations

  • Understanding the role of electronic evidence in government investigations
  • Tackling the challenges presented by data generated via social media, instant messaging and other emerging digital channels
  • Analyzing the key success factors for using predictive coding in government investigations.

Speakers are: John E. Davis, Executive Director and Counsel, Global eDiscovery, UBS AG; Casey Flaherty, Corporate Counsel, Kia Motors; Alex Ponce de Leon, Sr. Counsel, Litigation Group, Intel Corporation.  Speaker and Moderator: Patrick L. Oot, Co-Founder, Electronic Discovery Institute, Partner, Shook, Hardy & Bacon L.L.P..

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this 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 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.

Court Refuses to Dismiss Spoliation Claim Due to Defendant’s Failure to Produce Key Native File with Metadata – eDiscovery Case Law

In Raines v. College Now Greater Cleveland, Inc., 1:14-CV-00003 (N.D. Ohio June 3, 2014), Ohio District Judge James S. Gwin refused to dismiss the plaintiff’s claim of tortious spoliation of evidence due to the defendant’s failure to produce the metadata associated with a key report authored by the plaintiff.

In 2012, the defendant hired the plaintiff as Executive Director of the Higher Education Compact of Greater Cleveland. As part of her role, the plaintiff produced a Student Privacy Report, entitled Higher Education Compact of Greater Cleveland; Strategic Issues Paper: Student Information Access (the Student Privacy Report). The Student Privacy Report focused on potential violations of student privacy rights and the plaintiff identified concerns to her defendant employer that student privacy rights might be violated because the defendant allowed access to student information. The plaintiff filed a complaint after she was fired the next year by the defendant (and replaced with a substantially younger individual).

The plaintiff claimed spoliation of evidence when the defendants only produced the Student Privacy Report in physical form, without the native file and related metadata. The defendant claimed that the plaintiff could not make that claim because she was not able to show that this production disrupted the case and brought a motion to dismiss the claim of tortious spoliation of evidence (as well as the overall claim).

Judge Gwin noted that, “to state a claim for spoliation of evidence, a plaintiff must establish the following:

(1) A pending or probable litigation involving the plaintiff;

(2) Knowledge on the part of defendant that litigation exists or is probable;

(3) Willful destruction of evidence by defendant designed to disrupt the plaintiff’s case;

(4) Disruption of the plaintiff’s case; and

(5) Damages proximately caused by the defendant’s acts.”

The plaintiff alleged that the defendants knew litigation was likely, and “willfully” destroyed their electronic copy of her Student Privacy Report, claiming that the “metadata associated with the report has independent importance”.

While noting that the plaintiff’s spoliation claim “is not clear regarding damages”, Judge Gwin stated that the plaintiff “sufficiently alleges a claim to survive a motion to dismiss”. Therefore, the motion to dismiss the spoliation claim was denied and Judge Gwin stated, “We will later sort through whether any loss of metadata has caused damage”.

So, what do you think? Should metadata be required to be included in production of key documents? Or is production of a physical document sufficient? 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.

Order for Financial Records and Facebook Conversations Modified Due to Privacy Rights – eDiscovery Case Law
 

In Stallings v. City of Johnston City, No. 13-cv-422-DRH-SCW, 2014 U.S. Dist. (S.D. III. May 19, 2014), Illinois Chief District Judge David R. Herndon modified an earlier order by a magistrate judge in response to the plaintiff’s appeal, claiming that the order violated the privacy rights of the plaintiff, and of minor children with whom the plaintiff had held conversations on Facebook.

The initial order concerned discovery production of the plaintiff’s financial records through a previously issued subpoena. The plaintiff had objected to this production, on the grounds that the defendant had not specified the information sought from the records, namely an unidentified amount of money missing from the defendant’s accounts. In the objection, the plaintiff stated a belief that “seeking the financial records is a fishing expedition on the [defendant’s] part.” However, the magistrate judge ordered the production of the records and found upon review several cash deposits that were deemed potentially relevant, and then directed that the production of the plaintiff’s financial records would be subject to a protective order.

On the matter of the Facebook conversations, the plaintiff had produced approximately 466 pages of printed documents from the relevant account, with the names redacted, in response to the defendant’s discovery request for “[e]ach and every social media posting by [plaintiff] from 2011 to the present concerning her employment” at the defendant, “allegations of wronging against her, her suspension or termination, the investigation into missing money or wrongdoing … her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint.” The defendant objected to the redaction of names, to which the plaintiff responded that they did not have an unredacted hard copy of the pages due to technical difficulties involving Facebook’s policies. The magistrate judge directed the plaintiff to produce either an electronic version of the Facebook pages, or a hard copy of unredacted pages.

The plaintiff then appealed on these orders, arguing that “defendants have presented no basis to override her right to privacy in her bank records afforded under the Illinois Constitution” and further that the request for unredacted Facebook data “violates her privacy, as well as the privacy of minors and other individuals not involved in this litigation.” At issue regarding the Facebook pages was that Facebook only allows users to download the contents of their entire account, which would require the plaintiff to produce all of her Facebook conversations since 2007 if submitted as discovery, when the defendant requested only documents from 2011 onward.

Upon reviewing the issue of the financial records, Judge Herndon found that any evidence of cash deposits made to the plaintiff’s account during the specified time period were relevant to the defendant, but agreed that the plaintiff has a right to privacy of bank records. Therefore, it was ordered that discovery of evidence would be limited to only those deposits made in cash, “demonstrating that they were made in cash and on what date.”

With regard to the discovery issues concerning Facebook pages, Judge Herndon noted that while the plaintiff states potential violation of privacy for minors, the plaintiff had not indicated clearly whether any of the conversation relevant to the litigation had taken place with minors. Further, it was noted that some of the redacted pages did contain relevant conversations, or conversations that could be deemed relevant at a later date, such as potential admissions against interest or inconsistent testimony. Therefore, the plaintiff was ordered to produce “a redacted hard copy of all relevant Facebook pages from 2011 to the present” as well as “the names and towns of residence of the individuals with whom [plaintiff] had relevant conversations.” Further, “[i]f any of the relevant conversations are between individuals who are currently minors, [plaintiff] is not to provide defendants with the minor’s name or town of residence unless Ordered by the Court at a later date.”

So, what do you think? Are sufficient steps being taken to protect individual rights to privacy concerning discovery? 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.

Revised Federal Rule Amendments One Step Closer – eDiscovery Trends

As noted by a recent article in Law Technology News, a revised package of amendments to the Federal Rules of Civil Procedure (FRCP) is one step closer to being adopted.

The article Standing Committee OKs Federal Discovery Amendments, written by Thomas Allman, notes that last month, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the 2010 Civil Litigation Conference, held at Duke University’s law school, sponsored and organized by the advisory committee (a.k.a., the “Duke Rules Package”), addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.

The amendments include significant changes from the original proposals, reflecting feedback from three public hearings that drew more than 120 witnesses and 2,356 written comments.  Many of those comments were focused on controversial Rule 37(e) – discussed on this blog here.

As the article notes, “[t]he next stop is a review by the Judicial Conference in September. If approved, the U.S. Supreme Court will be asked to review and vote on whether to send the amendments to Congress. If that occurs before May 2015, the individual rules will become effective in December 2015, unless Congress disapproves.”

Here is a link to the agenda and the text of the rules as adopted that was published in the Standing Committee’s meeting Agenda Book.

Click here, here, here, here and here for previous posts on this blog regarding the proposed rules changes.

So, what do you think?  Will the rules amendments pass this time?  Should they?  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.

Want My Production? Here’s my Database! – eDiscovery Trends

A couple of weeks ago, we covered a case where the US Government was ordered to continue providing access to an eDiscovery database to a defendant in a criminal case.  That case shed light on a growing trend in the industry that I have also observed personally – “producing” documents to opposing counsel by providing access to the documents via a hosted eDiscovery solution.

In Craig Ball’s Lawyer’s Guide to Forms of Production (that we recently covered here), Craig identified hosted production as one of the options for forms of production that can be requested.  However, as Craig notes, “More commonly, hosted data and online review tools are used internally by a producing party’s counsel to search the data for privileged and responsive items rather than as a means to afford access to the requesting party. The items identified are then duplicated onto transfer media (e.g., optical disks or a hard drive) and produced in one or more of the formats described above.”

That is certainly true, though more parties in litigation are choosing to provide access to the online database as a means of production (“production without production” as Craig calls it).  While I don’t have any statistics to point to, that has at least been my recent experience as platform manager for OnDemand®, CloudNine Discovery’s own hosted eDiscovery platform.

Typically, there are two options for producing documents by providing online access: 1) provide access to the existing database, or 2) create a new database of produced documents.  Here are the pros and cons of each:

  • Existing Database: Many parties provide access to portions of their existing eDiscovery database.  This reduces costs because the data is already hosted and may be a way for both parties to share hosting costs.  In those instances, security becomes paramount.  As attorneys need to exclude access to non-responsive or privileged documents and other work product, the eDiscovery application needs to provide the ability to limit the documents that users can see as well as limit the fields that users can see.  In addition, it’s important to have a well-documented plan for the database administrator to follow to ensure that the correct rights are assigned.  If not, inadvertent disclosures of documents or data fields used during review and production can occur.
  • New Database: While it may cost more to create a new database of produced documents (essentially doubling the storage of those documents into a new database), it is much easier to secure privileged information and attorney work product because those documents and data fields simply aren’t there, essentially eliminating the possibility of an inadvertent disclosure due to incorrect rights assignments.  In these cases, the receiving party often agrees to bear the costs of hosting their portion of the data.

In both cases, the advantages to the receiving party include access to the same produced documents in the same format in which they were reviewed using the same search and analytical tools that the producing party used to produce the documents, putting both parties on equal footing.

So, what do you think?  Have you been part of a hosted production?  If so, how did it go?  Were you on the producing or receiving end?  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.

Portions of Plaintiff’s Motion to Compel eDiscovery Ruled as “Overbroad” and “Moot” Reaffirmed by District Court – eDiscovery Case Law
 

In Elkharwily v. Mayo Holding Co., 12-3062 (DSD/JJK), 2014 U.S. Dist. (D. Minn. Apr. 18, 2014), Minnesota District Judge David S. Doty overruled the plaintiff’s objection to a magistrate judge’s order that denied in part the plaintiff’s motion to compel discovery, labeling some requests as overbroad or moot, particularly after the defendant contended it had already produced the requested discovery materials.

This employment dispute was brought about when the plaintiff was terminated from the defendant’s employment. The plaintiff claims that after observing and reporting several instances of negligence and fraud in this medical setting, he was placed on administrative leave and asked to resign. When the plaintiff refused, the defendant terminated his employment. The resulting civil action filed by the plaintiff accuses the defendant of breach of contract and retaliation.

At issue here was an earlier order by a magistrate judge that denied in part the plaintiff’s Motion to Compel discovery of the defendant’s Electronically Stored Information (ESI). Specifically, the plaintiff sought to overturn the decision denying his motion to compel related to:

  • Requests for Production 9 and 12 and Interrogatories 14, 15, 16, and 20
  • Requests for Production 1, 2, and 10
  • Requests for Production 4, 5, and 6

Regarding the Requests for Production 9 and 12 and Interrogatories 14, 15, 16, and 20, which sought in part “any communications between any [defendant’s] employee and any potential employer of [plaintiff],” it was initially determined that the requests were overbroad, as they “presented the opportunity to investigate other unpleaded claims.” These requests and interrogatories were deemed “unduly expansive and seek[ing] material well outside the boundaries of permissible discovery.” Judge Doty concluded that the initial ruling on these issues was “neither clearly erroneous nor contrary to law,” as the plaintiff contended.

Requests for Production 1, 2, and 10 sought discovery relevant to the case. Specifically, Production 1 sought “[a]ll documents…maintained by [defendant] or any employee or agent of [defendant], relating to [plaintiff],” Production 2 sought “[a]ll email and text messages sent or received on [plaintiff’s work assigned] email and text messaging accounts,” and Production 10 sought “[all] documents, notes, communications, emails and text messages relating to [plaintiff] or to any of the claims or defenses in this action prepared, sent or received by [defendant],” all of which were initially denied as being overbroad and moot. In response to this, the defendant noted that it had already produced responsive documents to these Requests for Production, with redactions and assertions of privilege subject to future consideration. Therefore, Judge Doty noted that the plaintiff appeared to have no persisting objection to the initial ruling.

With regard to Requests for Production 4, 5, and 6, which had initially been overruled as moot, the plaintiff cited the initial order and argued that “(1) the order does not explicitly require [defendant] to include in its log otherwise-responsive documents not produced due to an asserted privilege and (2) the order does not compel production of patient files.” The defendant responded that it had already produced all responsive and non-privileged documents, had provided the plaintiff with a privilege log which logged all withheld documents, and further that the requested documents did not “reference, rely upon or incorporate patient files.”

In this final issue, Judge Doty noted that the court “must accept, at face value, a party’s representation that it has fully produced all materials that are responsive to a discovery request,” and that Rule 26 “provides adequate protection to ensure that, if [d]efendants are found to be deficient in their document production, appropriate sanctions will be leveled and [the plaintiff] will not suffer undue prejudice.” Therefore, the plaintiff’s objection to the portion of the objection relating to those requests for production was also overruled.

So, what do you think? Should any of the plaintiff’s objections have been considered more seriously?  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.

Court Denies Defendant’s Request for Deposition Regarding Plaintiff’s Discovery Search Tools – eDiscovery Case Law

In Koninklijke Philips N.V. v. Hunt Control Sys., Inc., 11-3684 (DMC) (D.N.J. Apr. 16, 2014), New Jersey Magistrate Judge James B. Clark III granted the plaintiff’s protective order to prevent the defendant from proceeding with a new deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery,” after the requested discovery documents had already been produced.

This instant action on an intellectual property dispute concerned the defendant’s reissuance of a Notice of Deposition pursuant to Fed.R.Civ.P. 30(b)(6) for the plaintiff’s IT representative, who had already given a deposition that had been stayed by a previous court when the defendant sought to request responses from the plaintiff to eight questions “that [defendant] alleges were not adequately answered” by the IT representative. The plaintiff objected to the reissued notice during a conference, and was granted leave to file for a protective order.

The defendant claimed that the plaintiff’s discovery production was materially deficient, and outlined seven categories of documents which it alleged were missing documents, returning low portions of requested documents, or not produced at all. In support of the 30(b)(6) deposition request, the defendant submitted declarations from its IT expert which stated in part that “due to its cloud-based IT structure, [plaintiff] has available to it some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools” and yet the plaintiff “refuses to use these tools to satisfy its obligations.”  The defendant claimed that it was “entitled to the deposition to understand why and how these sophisticated tools are somehow inappropriate in spite of their clear design to accommodate eDiscovery.”

In response, the plaintiff contended that the deposition was initially stayed pending the plaintiff’s response to the eight questions the defendant claimed were not adequately answered, and not pending the defendant’s review of the plaintiff’s discovery production. It was noted that the previous court invited the defendant to “reapply” for a deposition once both parties had “met and conferred in good faith” regarding discovery, yet the defendant had simply re-noticed the deposition. The plaintiff also submitted a declaration from its IT expert, confirming that the plaintiff had answered the eight questions adequately, and that “a custodian-based approach to collecting ESI” was its usual method of discovery production.

The plaintiff requested the protective order blocking the deposition because the ESI production approach described by the defendant would be unduly burdensome, noting that its current contract with its outsourced IT provider “neither includes, contemplates, nor currently permits the type of searching and collection that [defendant] suggest[s].” Further declarations submitted by the plaintiff attested to the reasonableness of its approach to ESI production.

Judge Clark based the ultimate ruling on this motion on legal standards set forth by Federal Rule of Civil Procedure 26, which governs the scope of discovery in federal litigation and requires in part that discovery scope be limited where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” and where “the burden or expense of the proposed discovery outweighs its likely benefit.”

In reviewing the arguments from both sides, Judge Clark found that the plaintiff had adequately represented the reasonableness of its approach to ESI discovery and production, that it had demonstrated that several categories of the defendant’s claims of deficient production were “speculative and suggestive in nature,” and that the defendant had failed to demonstrate that “the benefits of the deposition would likely outweigh the burden associated with it.” In fact, the proposed deposition had “the potential to cause tremendous burden” to the plaintiff. Therefore, the plaintiff’s motion for a protective order was granted.

So, what do you think? Was the defendant’s request unduly burdensome or should they have been granted the second deposition? 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.

Richard G. Braman: 1953 – 2014

I learned from Ralph Losey’s excellent blog, e-Discovery Team ®, that Richard Braman, the Founder and Executive Director Emeritus of The Sedona Conference®, passed away on Monday after battling an extended illness.  He was only 60 years old.

For those of you who don’t know, The Sedona Conference® (TSC) is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. The mission of TSC is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on tipping point issues.  Richard founded the TSC in 1997 and its impact on the legal world and electronic discovery has been enormous.

Another of Ralph’s posts from a couple of years ago provides a lot of insight about TSC and Richard, as well.  In the post, with regard to electronic discovery, Ralph provides a list of 35 publications that TSC’s Working Group 1 on Electronic Document Retention and Production had (at the time) generated since 2003.  All of these publications are free from the TSC website!

That’s the number of publications just for one working group – there are nine(!) other working groups in TSC, related to everything from The Role of Economics in Antitrust to Intersection of the Patent and Antitrust Laws and Mass Torts and Punitive Damages.  You start to really get a sense of the enormous impact that TSC has had on the legal profession.

Richard is one of the “true American heroes” that Joe Looby references in his documentary The Decade of Discovery that is set to be shown at the Manhattan Film Festival next Saturday (June 21) for their contributions to the tremendous progress made over the past decade in eDiscovery practice.  In 2013, he was named by The American Lawyer as “one of the 50 most innovative people in Big Law in the last 50 years.”

Richard’s legacy will live on indefinitely through TSC and those of us in the legal industry, attorneys and technologists alike, have benefitted greatly from his influence.  The In Memoriam page on the TSC site can be found here, with two video clips of Richard from The Decade of Discovery.  His obituary and information on his memorial service can be found here.

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.

The Pitfalls of Self-Culling and Image Files – eDiscovery Best Practices

This topic came up with a recent client, so I thought I would revisit it here on this blog.

There’s a common mistake that organizations make when collecting their own files to turn over for discovery purposes.  Many attorneys turn over the collection of potentially responsive files to the individual custodians of those files, or to someone in the organization responsible for collecting those files (typically, an IT person) and the self-collection involves “self-culling” through the use of search terms.  When this happens, important files can be missed.

Self-culling by custodians, unless managed closely, can be a wildly inconsistent process (at best).  You’re expecting each custodian to apply the same search terms consistently and, even if IT performs the self-culling, the process may have to be repeated if additional search terms are identified later on.  Even worse, potentially responsive image-only files will be missed with self-culling.

It’s common to have a number of image-only files within any collection, especially if the custodians frequently scan executed documents or use fax software to receive documents from other parties.  In those cases, image-only PDF or TIFF files can often make up as much as 20% of the collection.  When custodians are asked to perform “self-culling” by performing their own searches of their data, these files, which could contain information responsive to the case, will certainly be missed.

With the possibility of inconsistent self-culling, the possibility of additional search terms identified later and the (almost certain) presence of image-only files, I usually advise against self-culling by custodians.  I also don’t recommend that IT perform culling on behalf of the custodians, unless they have the ability to process that data to identify image-only files and perform Optical Character Recognition (OCR) to capture text from them.  If your IT department has the capabilities and experience to do so (and the process and chain of custody is well documented), then that’s great.  However, most internal IT departments either don’t have the capabilities or expertise (or both), in which case it’s best to collect all potentially responsive files from the custodians and turn them over to a qualified eDiscovery provider to perform the culling (performing OCR as needed to include responsive image-only files in the resulting responsive document set).  Unless the case requires supplemental productions, there is also no need to go back to the custodians to collect additional data with the full data set available.

So, what do you think?  Do you self-collect data for discovery purposes?  If so, how do you account for image-only files?  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.