Close
Enter your
text here

Electronic Discovery

Want to Immerse Yourself in eDiscovery Knowledge? There’s Still Time – eDiscovery Best Practices
 

One of our favorite blogs is the Ball in Your Court blog, by Craig Ball, a perennial thought leader interviewee on this blog.  While catching up on his latest couple of posts, I realized that it’s almost time for the Georgetown E-Discovery Training Academy.  If you’re looking for an in-depth program that not only gives you a “total immersion in the subject of eDiscovery”, but also satisfies much of your CLE requirements for the year, this program may be for you!

Georgetown Law's eDiscovery Training Academy will be held on June 1 thru June 6 this year and has been designed by experts to be a challenging experience leading to a comprehensive understanding of the discipline.  In addition to Craig, the faculty includes such noted experts as Maura Grossman, Tom O’Connor, and Mark Sidoti. Magistrate Judge John M. Facciola will also be there to provide additional judicial and pragmatic guidance.  The program provides up to 32.4 CLE credit hours (including up to 1.2 hours of ethics hours).  Topics and workshops include:

  • Meet and Confer Demonstrations, Team Meeting, Coaching Sessions and a Mock 26(f) Conference
  • Introduction to Electronically Stored Information (ESI)
  • Forms of Production
  • Mail Systems, Backup Systems, and Databases
  • Technology-Assisted Review and Enhanced Search
  • The Courts and Predictive Coding: Where Are They and Where They Are Going
  • Preservation
  • The Collections Process
  • Sanctions
  • Ethics
  • Evidence: Authentication and Admissibility
  • eDiscovery: Small Cases and Small Budgets
  • Judicial Perspectives from Judge Facciola throughout the week

With regard to how this year’s Georgetown Academy differs from past years, Craig noted to me that “The level of daily interaction with Judge Facciola will be unprecedented.  We are also calling more on other esteemed faculty in 2014, especially Maura Grossman and Mark Sidotti.  We have more judges involved than ever before and our team coaching staff is top notch and playing a larger role through the week.  The upshot is that attendees will be getting much more daily interaction with thought leaders and each other, with less burdens placed upon them in terms of reading.”

The full prospectus PDF is available here.  It includes a registration form, or you can also register online here.  Registration is $3,500 for the week long program ($3,000 if you’re a Georgetown Law alumnus and $2,500 for government employees).  Per Craig’s blog, you can use the code EDTAREFERRAL when registering and take $300.00 off the price.  Even better for a week that should be highly educational and also highly entertaining and cover a large portion of your CLE requirements for the year.

So, what do you think? Are you looking for a chance to quickly develop your knowledge of technology and electronic 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.

Plaintiff’s Failure to Communicate with Defendants Causes Complications in Discovery – eDiscovery Case Law
 

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Mar. 18, 2014), the defendants filed a Motion to Compel over search terms for Electronically Stored Information (ESI), after the lead counsel for the plaintiffs repeatedly demonstrated uncooperative behavior by not responding to emails sent by defendants’ counsel, or responding with brief and unclear messages.

This discovery dispute arose after Florida District Judge Jonathan Goodman granted the defendants’ motion for a forensic analysis of the plaintiffs’ electronic media. Several reasons were given for granting the motion, among them the fact that the plaintiffs’ personnel had been permitted to self-search for ESI without context – the employees had neither seen the defendants’ discovery requests, nor been given a list of search terms. Judge Goodman ordered that both parties agree to a preliminary list of search terms.

Following this order, counsel for the plaintiffs produced a list of eight search terms, in English, along with an advisory that the plaintiffs could “confer with our clients as to appropriate Spanish translation.” This was problematic because the plaintiffs’ business is headquartered in Columbia, and while some of its employees speak both English and Spanish, others speak only Spanish.

The defendants responded that the counsel’s proposal with the absence of Spanish search terms and a suggestion to translate the terms post-agreement was “patently unreasonable,” and further stressed that “perhaps most troubling is that it doesn’t appear these terms were discussed with [plaintiffs’] employees in order to determine what words and phrases they use.”

Counsel for the defendants attempted to reach the plaintiffs’ lead counsel with regards to this matter, first through a phone call, and then through an email follow-up that summarized the call, stating in part: “this confirms…[plaintiff] does not agree that it has an obligation to come up with search terms with input from [plaintiffs’] custodians about the words and abbreviations they use, and that [plaintiff] will not suggest any search terms other than the eight search terms it proposed.” The counsel for the plaintiff replied with a single-line email: “I do not believe your characterization of our position is accurate.” A response from the defendants’ counsel asking for clarification on which of the two points in the original email counsel believed to be inaccurate went unanswered.

Several further emails were sent, to which the plaintiffs’ counsel either did not respond, or responded with brief messages that did not address all the points questioned by defendants’ counsel. Due to the lack of communication regarding whether the plaintiffs’ counsel would confer with their clients regarding search terms, the defendants filed a Motion to Compel.

Judge Goodman held a multi-hour hearing with the parties, during which the plaintiffs’ counsel alleged that the defendants’ counsel had a history of “incorrectly summarize(ing) telephone conversations,” and further that the defendants were “seeking to engage in an ‘e-mail war,’ that email is being used ‘as a tool to gain an advantage’ and that [defendants’ emails] were an ‘ambush attempt’ and that he was not going to ‘get trapped into this kind of tactic’.” Additionally, counsel asserted that they had already been in communication with the plaintiffs’ ESI custodians, detailing in an affidavit that attorneys for the plaintiffs had spoken to a total of 24 custodians currently employed by the plaintiffs, as well as two former custodians, regarding search terms and ESI that was reasonably likely to contain relevant information.

Upon review of the affidavit and testimony, it was found that the plaintiffs’ counsel had first communicated with ESI custodians regarding search terms only on the day after the defendants had filed the Motion to Compel, and that the discussion outlined in the affidavit had taken place during the week after the motion had been filed. Therefore, the search terms had not in fact been discussed with the plaintiffs’ ESI custodians at the time of the email exchanges, contrary to what counsel had indicated.

Despite having ultimately arranged for the appropriate persons to provide search term input, Judge Goodman awarded attorney’s fees to the defendants in the amount of $3,750, with $1,000 of the fees to be paid personally by the lead counsel for the plaintiff due to his non-communication. It was stressed that this award was for fee-shifting purposes, and not intended as a sanction.

So, what do you think? Should apparent refusal to communicate provide grounds for sanctioning during the discovery process? 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.

The Mergers and Acquisitions Keep on Coming – eDiscovery Trends

As the saying goes, “You can’t tell the players without a scorecard!”  It has been close to two years since we looked at the mergers, acquisitions and investments in the eDiscovery industry, so it seems like a good time for an update.  Here are a couple of resources for keeping up with eDiscovery industry changes in the provider community.

When it comes to compilations of information about eDiscovery, no one does it better than Rob Robinson.  His Complex Discovery site keeps a running list of mergers, acquisitions and investments in the eDiscovery industry and goes all the way back to 2001, when LexisNexis acquired CourtLink – that was even before Kroll merged with Ontrack!  He calls it a “non-comprehensive overview”, but there are over 170 transactions, so it’s got a lot of useful information.

Rob’s list not only keeps you abreast of changes in the industry, it’s a great “way back” machine for those who have been in the industry for a number of years and remember some of the providers who were acquired and no longer exist as their old names.  There have already been nine transactions this year, involving names such as Applied Discovery (acquired by DTI Global) and AccessData’s Litigation Support Services (LSS) group (acquired just this week!).  More to come, I’m sure.

A great resource for details about some of these transactions is Litigation Support Industry: eDiscovery Business News and Information Blog, published by Brad Jenkins, the President and CEO of CloudNine Discovery (shameless plug warning!), who just happens to be my boss (hey, it’s getting close to performance review time!).  On his blog site, Brad re-publishes announcements and press releases, giving you a chance to catch details about those important announcements you might have missed, including this week’s major acquisition of three discovery providers.  It’s a great place to get “the rest of the story” (as Paul Harvey used to say).

Despite the fact that mergers and acquisitions continue to happen regularly, it seems like there are always new players to take the place of those that no longer exist (case in point, the number of exhibitors at LegalTech the past four years has dropped less than 10%).  So, the dramatic industry consolidation that many have predicted has yet to materialize.

So, what do you think? Are you up to date on the latest industry related mergers, acquisitions and investments?  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.

Another Instance Where Word is Not So Smart – eDiscovery Best Practices

Way back within the first couple of months after this blog was launched, we discussed those stupid “smart quotes” in Microsoft® Word where Word, by default, automatically changes straight quotation marks ( ‘ or ” ) to curly quotes as you type.  There’s another way where Word isn’t so smart, unless you know the workaround, which I just learned this week.

A couple of days ago, an unusual error was reported by one of the users of our review platform, OnDemand®.  She was putting text into a field in her database and when she went back to that same database record, the text was altered a bit, to say the least.  Here is what she was seeing (I’ll substitute a common typing sentence for her client proprietary text):

<span style=”font-size:11.0pt;line-height:115%; font-family:&quot;Calibri&quot;,&quot;sans-serif&quot;;mso-ascii-theme-font:minor-latin;mso-fareast-font-family: Calibri;mso-fareast-theme-font:minor-latin;mso-hansi-theme-font:minor-latin; mso-bidi-font-family:&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA”>The quick brown fox jumped over the&nbsp; <b><span style=”color:red”>lazy dog.</span></b></span>

What a mess!  Did you spot the sentence “The quick brown fox jumped over the lazy dog.” in there?  Wasn’t easy, was it?  Important text was bolded in red, so I simulated that by putting the last two words bolded in red as well.

It turns out that she was copying text from a Word document and pasting it into the Web form for the database field.  It would look fine when she pasted it, but when she exited the database and logged back in (and returned to the specific record where she entered the text), the web form displayed all of the formatting that went with the text that she had copied.  As often as people copy text from Word documents, I’m surprised the issue hasn’t come up before.

What to do?  Copying the text to a plain text editor (like Notepad or Textpad) first would work as it would strip all of the formatting from the text.  Copying the text from the text editor and then pasting it into the field gives you the text without the formatting.  It’s a two-step process that I’ve used for years to copy text out of Word sans the formatting.

However, I learned a one-step approach from one of our OnDemand developers that I didn’t know about before.  Instead of using Ctrl+V to paste text (after using Ctrl+C to copy it to the clipboard), use Ctrl+Shift+V to paste the text.  You’ll get the pasted text without formatting and avoid the mess you see above.  Thanks, Chris Maden!

So, what do you think? Do you have issues copying text from Word 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.

If Your Documents Are Not Logical, Discovery Won’t Be Either – eDiscovery Best Practices

Scanning may no longer be cool, but it’s still necessary.  Electronic discovery still typically includes a paper component.  When it comes to paper, how documents are identified is critical to how useful they will be.  Here’s an example.

Your client collects hard copy documents from various custodians related to the case and organizes them into folders.  In one of the folders is a one page fax cover sheet attached to a two page letter, as well as an unrelated report and four different contracts, each 15-20 pages.  The entire folder is scanned as a single document, as either a TIFF or PDF file.

Only the letter is retrieved in a search as responsive to the case.  But, because it is contained within a document containing 70 to 80 other pages, you wind up reviewing 70 to 80 unrelated pages that would not otherwise have to review.  It complicates production, as well – how do you produce partial “documents”?  Also, if the non-responsive report and contracts have duplicates in the collection, you can’t effectively de-dupe those to eliminate those from the review population because they’re combined together.

It happens more often than you think.  It also can happen – sometimes quite often – with the scanned documents that the other side produces to you.  So, how do you get the documents into a more logical and usable organization?

Logical Document Determination (or LDD) is a process that some eDiscovery providers (including – shameless plug warning! – CloudNine Discovery).  It’s a process where each image page in a scanned document set is reviewed and the “logical document breaks” (i.e., each page that starts a new document) is identified.  Then, the documents are re-assembled, based on those logical document breaks.

Once the documents are logically organized, other processes – like Optical Character Recognition (OCR) and clustering (including near duplicate identification) can then be performed at the appropriate level of documents and the smaller, more precise, unitized documents can be indexed for searching.  Instead of reviewing a 70-80 page “document” comprised of several logical documents, your search will retrieve the two page letter that is actually responsive, making your review and production processes more efficient.

LDD is typically priced on a per page basis of pages reviewed for logical document breaks – prices can vary depending on the volume of pages to be reviewed and where the work is being performed (there are providers in the US and overseas).  While it’s a manual process, it’s well worth it if your collection of imaged documents is poorly defined.

So, what do you think? Have you ever received a collection of poorly organized image files? If so, did you use Logical Document Determination to organize them properly?  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.

Defendant Failure to Produce in Agreed Upon Format Leads to Dispute with Plaintiffs – eDiscovery Case Law
 

In EEOC v. SVT, LLC, 2:13-CV-245-RLM-PRC, 2014 U.S. Dist. (N.D. Ind. Apr. 10, 2014), discovery disputes arose when the plaintiffs and defendants agreed upon the file format the requested Electronically Stored Information (ESI) for discovery was to be produced in, but the defendants’ production was not in the file formats specified.

In this workplace discrimination case, the plaintiffs allege that the defendants had engaged in discriminatory hiring practices based on gender, specifically that the defendants refused to hire qualified applicants who were female, and that disproportionately more males than females were hired. The plaintiffs submitted a Request for Production that asked for documents from the defendants including “applications, screening assessments, interview guides, spreadsheets containing data about applicants and employees, and pay rate information.” Neither party disputed that this ESI constituted relevant discovery for the case.

The plaintiffs requested under the Request for Production that the ESI be furnished in specified formats. These formats included documents to be produced in “near native” TIFF format with load files, and spreadsheets and databases produced in native format. At this time, the defendants indicated compliance and agreed that the ESI would be produced in these formats.

The defendants began producing discovery responses by furnishing the plaintiffs with spreadsheets in non-native TIFF format, and with employment applications in single-page, non-unitized PDF that did not include load files. Along with these responses, the defendants claimed that that had produced all relevant data “pursuant to industry standards.” The defendants did not communicate to the plaintiffs, either during production or after serving the discovery responses, that they had any issues with the formats of production specified in the Request for Production. They simply did not follow the agreed format, with no explanation.

Upon review of the ESI, the plaintiffs filed a Motion to Compel Agreed-Upon Formats of [defendants’] Discovery Responses. The plaintiffs submitted a Declaration detailing the deficiencies of the file formats the defendants had submitted, including that the printed images (TIFF) of spreadsheets and database files were not reasonably usable “because they cannot be searched or manipulated for analysis,” and further that the PDFs produced by the defendants were in “a less usable format than the original data” because they had been “bulk-scanned,” resulting in single-page files that were not logically unitized, and had been stripped of metadata such as necessary document/page relationships.

The plaintiffs contended that the defendants could have produced the ESI in the requested formats, and that it would not have been unduly burdensome, using the Kronos and Financial Management Systems, Inc. (FMS) systems that the defendants regularly store and work with data on during the course of business. It was noted by the plaintiffs that both systems “are capable of providing users with data in many forms and come with built-in functionality to query, export, and report data from databases.”

Additionally, the plaintiffs noted that two of the defendants’ human resources representatives had testified during depositions with regard to their experiences working with Kronos, and had stated that they had the ability to generate reports in either PDF or Excel formats, and that FMS can export data to Excel. Both representatives stated that Kronos could be used to sort data, enter specific queries and generate customized reports on the information the plaintiffs sought, in these requested native formats.

However, the defendants objected, stating that their use of a third party hiring program in which Kronos stores the data from applicants online meant that they were limited to producing PDF documents without log files. The defendants stated that they were unable to access the “raw data” through the third party system, which is a cloud-based application. Further, it was noted that producing ESI in the formats requested by the plaintiffs would be unduly burdensome in a financial sense, as the plaintiffs had already spent substantial amounts to produce the discovery documents served thus far.

Magistrate Judge Paul R. Cherry noted that the defendants had not objected or sought a protective order based on their purported inability to comply with the plaintiffs’ requested ESI production format, and further that the data sought was not inaccessible, and therefore duplication costs could not be viewed as unduly burdensome. However, Judge Cherry was mindful of “the apparent inequality of resources available to the parties in this case, the excessive costs that can be incurred in producing ESI, and that such costs can become so burdensome as to pressure a party to settle in order to avoid those costs.”

Therefore, it was ordered that the parties meet and confer in person to work toward resolution of the file format issues revolving around discovery in this case. Further, since the plaintiffs had stated familiarity with the systems used by the defendants, and understood how the requested discovery could be obtained “easily,” Judge Cherry ordered that the plaintiffs provide “written” communication from the [defendants’] internal forensic computer expert…setting forth the remaining specific deficiencies with [plaintiffs’]…ESI production and proposing a specific and detailed explanation for obtaining and delivering the information in a cost-efficient manner for [plaintiffs].”

So, what do you think? Given the agreement, should the judge have granted the motion to compel? 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.

Plaintiff Ordered to Produce Facebook Photos and Messages as Discovery in Personal Injury Lawsuit – eDiscovery Case Law
 

In Forman v. Henkin, 2014 NY Slip Op 30679 (NY Sup. Ct. Mar 19, 2014), a Motion to Compel was granted in part for a defendant who requested authorization to obtain records of the plaintiff’s private postings to Facebook.

In this New York personal injury litigation, the plaintiff had been injured after falling off a horse owned by the defendant. During deposition, the plaintiff testified that she had posted photos of herself engaged in various activities on Facebook prior to the accident, and that she could no longer engage in those activities due to her injuries. Additionally, the plaintiff alleged that she had suffered brain injuries from the fall, which have impaired her ability to read and write, leaving her unable to compose text messages and emails. The plaintiff also claimed that her memory had been impaired, and so she could not remember whether she had posted any photos on Facebook after the injury.

At some point after the accident, but prior to the litigation, the plaintiff had deactivated her Facebook account. The defendant filed a “motion to compel disclosure or for penalties due to the plaintiff’s nondisclosure” requesting access to the plaintiff’s photos, status messages, and instant messages on the Facebook account. No time frame was specified for the defendant’s request.

Judge Lucy Billings noted that any photos of the plaintiff prior to her injury would be of little probative value, because “[i]f she did post such photographs on Facebook, they only will corroborate her testimony. If she did not post such photographs, their absence will not show that she did not engage in various activities before her injury that she no longer engages in.” However, it was stated that photos of the plaintiff after the accident would be of probative value. Specifically, “Photographs of plaintiff engaging in various activities after her injury, particularly any activities she claims she no longer is able to engage in due to her fall from defendant’s horse…”

In addition to photos, the defendant requested writings by the plaintiff from both pre-injury and post-injury time frames, to assess “the impact of plaintiff’s injury on her ability to reason, find words, write, and communicate effectively.” Judge Billings agreed that the defendant was entitled to request the plaintiff’s writings, both after the accident and for a limited time period leading up to the accident for the purposes of comparison. In addition, the defendant was permitted to obtain a psychological and a physical examination of the plaintiff to assess her communication abilities. However, it was noted that the plaintiff’s writing outside of private Facebook messages, along with a single examination, “may not fully reveal the frequency, speed, and volume of her writing,” and therefore the defendant was entitled to obtain Facebook records showing “each time plaintiff posted a private message and the number of characters or words in the text of each private messages,” for a time period from the date of the accident to the deactivation of her Facebook account.

The plaintiff was ordered to produce within 20 days all photos of herself engaged in the activities she intends to introduce at trial that were posted to Facebook, as well as all photos posted to Facebook after her injury that do not contain nudity or romantic encounters, and to provide the defendant with authorization to obtain records from Facebook as stated.

So, what do you think? Should private Facebook accounts be subjected to discovery requests, even after accounts have been deactivated? Are Facebook records presented without the actual text of the messages or postings sufficient to introduce as evidence? 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.

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested – eDiscovery Case Law

Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over!

As reported last week in The Recorder (Jury Awards Apple $119.6 Million in Mixed Verdict), a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents.  However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

According to the federal jury of four women and four men, nine Samsung mobile devices infringed on Apple’s “quick links” patent and three devices were found to have infringed on Apple’s “slide-to-unlock” patent.  The jury also calculated Samsung’s damages on Apple’s autocorrect patent, but ruled that Samsung products did not infringe on two other Apple patents.

The jury also awarded $158,400 to Samsung for its counterclaims of patent infringement against Apple.

In August of 2012, Apple was awarded over a billion dollar verdict, but U.S. District Judge Lucy Koh later reduced those damages to a measly $599 million and ordered a retrial on 13 of Samsung’s products, saying the earlier jury’s math on those gadgets didn’t add up.  Then, last November, a jury ruled that Samsung owed Apple another $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products back up to almost $930 million.  Now, the total awarded is back over a billion.

From the never ending case that brought us an adverse inference sanction and “patentgate”, resulting in another sanction for Samsung’s outside counsel (Quinn Emanuel Urquhart & Sullivan LLP) for their inadvertent disclosure of Apple license information, what can happen next?  Stay tuned.

So, what do you think? Will this case ever 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.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, as always, 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.

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery – eDiscovery Case Law
 

In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist.. 11-14 (W.D. Okla. April 2, 2014), a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Discovery issues had plagued this litigation since the beginning, as both parties had repeatedly failed to communicate properly with one another, resulting in multiple interventions by the court. Upon the filing of the defendant’s Motion to Reconsider and a fourth request for continuation of the trial, Judge LaGrange held a hearing which discussed some of the discovery issues, among other things. The defendant stated at this hearing that some of the discovery documents requested by the plaintiffs—hard copies belonging to a key player who was no longer employed by the defendant—may have been inadvertently destroyed.

Pursuant to the hearing, Judge LaGrange instructed the parties to file status reports regarding the status of the discovery issues. While both parties accordingly filed a Joint Status Report soon after the hearing, once again there was a failure to communicate between parties, ultimately leading to the defendant’s filing of the Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

This motion asked to reconsider an earlier court order that would allow discovery on the company’s document retention policies and litigation hold strategies, in order to investigate the circumstances under which the paper documents of the defendant’s former employee been destroyed. The defendant alleged that the court order was issued prematurely, and that it was irrelevant and not discoverable.

In response to the issue of the order being premature, it was found that this was not the case, as the defendant had known about the plaintiff’s request for this discovery at the time the parties filed the Joint Status Report, in which the defendant requested a ruling on whether they were required to produce discovery on their document retention policies along with a relevant witness for deposition.

The relevancy of the plaintiff’s discovery request was also addressed as such: “Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to [the former employee’s files] is relevant and discoverable.”

In conclusion, Judge LaGrange denied the defendant’s Motion to Reconsider, and ordered both parties once again to attempt to resolve the issues surrounding discovery and the defendant’s document retention and litigation hold practices in good faith.

So, what do you think? Should a party have the right to request discovery on document retention policies when relevant discovery documents are not obtainable? Should the cooperation—or lack thereof—between parties affect the court’s ruling on various motions? 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.