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Electronic Discovery

Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments – eDiscovery Case Law
 

In Skepnek v. Roper & Twardowsky, LLC, 11-4102-KHV (D. Kan. Jan. 27, 2014), Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.

The defendants opposed the motion to enforce, first by claiming that the plaintiffs had failed to meet and confer with them regarding the production of the Electronically Stored Information (ESI). While federal rules state that a party filing a motion has a duty to confer with opposing counsel, the local rules for this district expand upon that duty, specifically stating that “a ‘reasonable effort’ to confer means more than mailing or faxing a letter to the opposing party” and that the parties must in good faith “converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.”

Judge O’Hara noted that the opposing parties had exchanged correspondence and held a telephone conference in attempt to resolve this discovery dispute without the court’s intervention, and ruled that the plaintiffs had made a reasonable effort to confer with regard to producing email attachments.

The defendants also objected that the plaintiffs had waived their right to object to the form of production, which was at issue in that it resulted in emails being produced with the attachments missing. The defendants had been ordered to produce “all internal communications among defendants…that pertain to Requests for Production Nos. 6, 7, 10, and 11,” as well as “all electronic communications between Angela Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed by defendants in their motion.” These emails had been produced in PDF format, which did not result in the attachments being produced.

The plaintiffs suggested that if the ESI had been produced in native format, the attachments would have been included in production. Here, the defendants countered that they have always produced documents in PDF format, including emails, and that it would be “duplicative and burdensome to comply with plaintiffs’ request.” Further, the defendants had claimed that their “e-mail server search was not capable of producing the attachments to the e-mails,” but offered to produce specific attachments requested by the plaintiffs.

Judge O’Hara noted that producing attachments that have not previously been produced is not duplicative, and questioned why the defendants would be able to “produce specific attachments upon request,” when they claimed it was “impossible” to include all of the attachments. Additionally, the defendants did not offer evidence that producing the attachments would be burdensome, and the plaintiffs had not requested re-production of all documents. Instead, they “point[ed] out that one way defendants could [produce the missing attachments] is by producing the e-mails in their native format.”

Stating that the defendants “do not have the leisure of picking and choosing what responsive documents to produce,” Judge O’Hara ordered the defendants to produce all relevant communications, including attachments. No sanctions were imposed, since “both parties are at fault to some degree for failing to adequately confer early on regarding the production of ESI,” but the defendants’ request to have the plaintiffs pay for their production time was denied.

So, what do you think? Should a phone conference constitute a reasonable effort to confer with regard to the production format of ESI? Is PDF ever an appropriate format to produce email communications when attachments are relevant to the litigation at issue? 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.

Daughter’s Facebook Post Voids $80,000 Settlement – eDiscovery Trends

My boss reminded me that we haven’t had a good social media disaster story in a while, so here goes.  I know it’s a few weeks old, but it’s still a good story if you haven’t heard it.

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.

When Patrick Snay, the former head of Gulliver Preparatory School, filed an age discrimination complaint when his 2010-11 contract wasn’t renewed, the school and Snay came to an agreement in which Snay would be paid $10,000 in back pay, as well as an $80,000 settlement.

He was all set.  Then, his daughter posted a comment to Facebook, as follows:

“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

And, she sent it to her 1,200 Facebook followers, which included many current and former Gulliver students and word got back to school officials.

The problem?   It seems that Snay had a confidentiality agreement which stated that neither Snay nor his wife could speak about the settlement to anyone except for his attorneys and other professional advisers.  That included their daughter.  Within a few days, Gulliver Schools sent a letter to Snay’s attorneys stating that Snay had broken the confidentiality agreement and that he would not be receiving the $80,000 settlement.

Snay filed a motion to enforce the settlement and initially won in a Circuit Court ruling. However, the school appealed and the Third District Court of Appeals for the State of Florida agreed that Snay had, in fact, violated confidentiality and reversed the Circuit Court ruling.  Goodbye $80,000.

Sometimes the case is lost even after it’s won.

That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

So, what do you think? Have you seen any cases lately that turned on social media 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.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit – eDiscovery Case Law
 

In Calderon v. Corporacion Puertorrique a de Salud, No. 12-1006 (FAB) (D.P.R. Jan. 16, 2014), the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

The discovery dispute began over the Electronically Stored Information (ESI) produced by the plaintiff, which were in the form of messages from his phone exchanged between the plaintiff and a particular identified email address belonging to an unknown person who was alleged to be the harasser. The plaintiff produced relevant messages to the defendants, but also admitted that some of the messages had been deleted from his phone. In response, the defendants filed a motion in limine that sought to have all of the messages excluded, and requesting that the case be dismissed.

While the motion in limine was still pending, the defendants received ESI from the plaintiff’s phone service provider, which contained the plaintiff’s phone and text messages spanning the time period relevant to the case. These records showed that at least 38 messages, including some from the alleged harasser and others that were “the numerous text messages that [plaintiff] sent in response” were not among those messages produced by the plaintiff to the defendants. Therefore, the defendants filed a supplemental motion based on the missing messages that asked to sanction the plaintiff by dismissing the case, since spoliation of evidence had occurred.

The plaintiff filed a motion to quash, with the argument that the defendants had subpoenaed the plaintiff’s service provider before the discovery deadline, and had not given adequate pre-service notice. Therefore, the plaintiff claimed that the subpoena which resulted in the discovery of missing messages should be quashed as procedurally defective. However, it was noted that had the defendants given notice of the subpoena and the plaintiff objected, the subpoena would not have been quashed. Further, the late disclosure of the defendants’ receipt of phone records was determined to be harmless to the plaintiff.

In considering the motions, District Judge Francisco A. Besosa found that spoliation had indeed occurred. This was based on discovery of the 38 messages the plaintiff had deleted, some of which had included photos that were also not produced by the plaintiff. Additionally, the plaintiff’s records revealed that he had “reasonably foresaw litigation and had a duty to preserve relevant evidence,” because the plaintiff had contacted his attorney via his phone prior to the point where he admitted to “forwarding some messages…so that he ‘would be able to print’ them.” Judge Besosa stated that this constituted “conscious abandonment of potentially useful evidence” and indicated that the plaintiff believed the deleted messages would not help his side of the case.

While spoliation had been found to occur, Judge Besosa declined to sanction the plaintiff by dismissing the case, citing that dismissal of an entire lawsuit as a sanction is generally reserved for extreme cases, as cited in Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006), which stated: “[I]t has long been our rule that a case should not be dismissed with prejudice except when a plaintiff’s misconduct is particularly egregious or extreme.” Instead, Judge Besosa ruled that an adverse inference instruction to the jury was the most appropriate sanction for this case.

So, what do you think? Should the court consider quashing evidence that would not have been likely quashed during normal proceedings, if a party obtains such evidence outside of established processes? Are adverse inference instructions truly sufficient to exclude or caution against potential spoliation of 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.

Litigation Support Professionals Are Certifiable, Too – eDiscovery Trends

We’ve covered programs from The Organization of Legal Professionals (OLP) in the past, including this prior post regarding their certification program for eDiscovery project management.  Now, the OLP has announced that it has finalized preparations for a new Litigation Support Certification Exam.

As announced on their site, the Certified Litigation Support Certification Exam (CLSP®), developed in conjunction with Pearson Learning Solutions, a $7 billion company that specializes in certification examinations for a wide variety of industries, incorporates content created by OLP members including eDiscovery and legal technology lawyers, consultants and experts. According to the announcement, OLP is the first organization to offer a Litigation Support Certification Exam.

The exam and prep course aren’t just for anybody who can study and take a test, candidates must complete an application form found in the Candidate Handbook and demonstrate prior work experience and/or education.  The requirements for demonstrating prior experience depend on whether or not you hold a J.D., baccalaureate degree, A.A./A.S. degree and/or are employed in the position of attorney or paralegal.  Specific eligibility requirements can be found here.

According to Chere Estrin, President of the OLP, the prep course offers self-paced, 24×7 accessible online learning tools and resources so learners can work at their own pace and schedule. Each course requires about 4 hours of dedicated study time. The course curriculum is comprised of all important and relevant learning objectives as identified by top legal field professionals and that cover all vital aspects ensuring knowledge development while best preparing the learner for the certification exam.

The topics covered are quite comprehensive and include:

  • Technology Topics including: Media, Hardware, Software and Terminology
  • Appropriate Uses of Software
  • eDiscovery Topics including: eDiscovery Definitions, File Extensions and Terminology
  • Case Law Topics including: Legal Procedure and Rulings, FRCP, The Sedona Conference and Other Resources
  • Legal Project Management Topics including: Information Management, Backup, Records Management and Legal Hold
  • Cost Controls and Budget Metrics
  • Early Case Assessment Topics including: Early Case Assessment, Matter Life Cycle, Matter Planning and Software Applications
  • Metadata Topics including: Metadata Forensics
  • Data Storage Topics including: Data Processing and Document Coding
  • Best Practices Topics including: Production Format, Records Retention
  • Risk Control and Management
  • Search Tools Topics including Software Applications, Review Tools, Forensics, Authentication and Hardware/Software

The cost for the prep course is $695 for OLP members ($895 for non-members) and the cost of the exam is $395 for OLP members ($595 for non-members) – individual membership is $125 per year, so it pays to be a member if you’re going to sign up for either the prep course or the exam.  Candidates for the exam will be able to schedule the date of the examination starting May 15, 2014 through the purchase of a voucher.  The exam will be administered in a secured facility in over 1,000 global locations including the U.S., Canada, Australia, the UK, Japan, Europe, Mexico, Puerto Rico, Brazil, Venezuela, and South Africa.

For more information about the CLSP® prep course and exam, click here.  You can also download the Candidate Handbook, available here.

So, what do you think?  Are you a litigation support professional?  If so, does the idea of a certification program appeal to you?  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.

Searching for Individuals Isn’t as Straightforward as You Think – eDiscovery Best Practices

I’ve recently worked with a couple of clients who proposed search terms for key individuals that were a bit limited, so I thought this was an appropriate topic to revisit.

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 Smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in OnDemand®, CloudNine Discovery’s online review tool.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is often best, though you should always test your terms (and variations of those terms) to maximize the balance between recall and precision.

Of course, there’s another way to retrieve documents that mention key individuals – through their email addresses.  We’ll touch on that topic next week.

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

Cloud Security Fears Diminish With Experience – eDiscovery Trends

One of the more common trends identified by thought leaders in our recently concluded thought leader series was the continued emergence of the cloud as a viable solution to manage corporate big data.  One reason for that appears to be greater acceptance of cloud security.  Now, there’s a survey that seems to confirm that trend.

According to a recent survey of 1,068 companies conducted by RightScale, Inc. (referenced in the Forbes article Cloud Security Fears Diminish With Experience, Survey Shows, by Joe McKendrick), concern about cloud security diminish as users gain more experience using cloud-based services.  According to the survey, “security remains the most-often cited challenge among Cloud Beginners (31 percent) but decreases to the fifth most cited (13 percent) among Cloud Focused organizations. As organizations become more experienced in cloud security options and best practices, the less of a concern cloud security becomes”.

Other key findings of the survey include:

  • 94 percent of respondent organizations are using the cloud in some form, with 29 percent using the public cloud only, 7 percent using private clouds only and 58 percent using both public and private clouds;
  • 74 percent of enterprises have a hybrid cloud strategy and more than half of those are already using both public and private cloud;
  • Less than a third of organizations have defined such critical aspects of governance as which clouds can be used, disaster recovery approaches, and cost management;
  • The number of respondents who regard cloud security as a significant challenge has decreased among both cloud beginners and cloud pros;
  • The cloud “maturity” of respondents ranged from 24 percent who either have no plans to deploy cloud solutions (6 percent) or are only in the planning stage (18 percent) to 47 percent that either have multiple projects or applications already deployed in the cloud (25 percent) or are heavily using cloud infrastructure and are looking to optimize cloud operations as well as cloud costs (22 percent).

You can download the 20 page survey report, chock full of graphs and statistics, here.  It’s a very interesting read.

So, what do you think? How many cloud-based applications does your organization use? 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.

Definition of “Electronic Storage” Considered in Invasion of Privacy Lawsuit – eDiscovery Case Law
 

In Cheng v. Romo, No. 11-10007-DJC (D. Mass. Dec. 20, 2013), the interpretation of laws enacted prior to the modern Internet age served as a deciding factor in the outcome of this invasion of privacy lawsuit, which alleged a violation of the Stored Communications Act (SCA).

The plaintiff in this case had sued the defendant for violating the SCA by accessing his web-based emails without his authorization or consent. Here, the question was not whether the emails were read, as the defendant admitted to accessing the plaintiff’s emails. However, the defendant argued that because the plaintiff had previously opened the emails, they did not meet the definition of being in “electronic storage” as described by the SCA.

The question of whether these emails met the qualifications for “electronic storage” under the SCA was therefore addressed accordingly.

The definition of electronic storage as set forth under the SCA is “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.]” The plaintiff argued that the emails at issue were covered by at least the second prong, (B), of the definition under the SCA.

In considering this case, Massachusetts District Judge Denise J. Casper recognized that a clear precedent had not been established by previous cases that dealt with similar issues. Several courts have addressed the question of web-based emails as “electronic storage” with consideration of the SCA, with mixed results. Two competing findings in particular were referred to, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2003), which found that web-based emails were in electronic storage under this statute; and United States v. Weaver, 636 F. Supp. 2d 769, 770-73 (C.D. III. 2009), which found that “[p]reviously opened emails stored by Microsoft for Hotmail [email system] users are not in electronic storage” in the context of a criminal subpoena.

The decision was further influenced by the fact that the SCA was enacted in 1986, and that the statute employed “vague language” in which the definition for electronic storage has not changed since the laws were enacted. For context, it was noted that in 1986, “the process of network communication was still in its infancy; the World Wide Web, and the Internet as we know it, did not arrive until 1990.”

At contention as well was the term “backup storage” in the SCA, which the defendant contended did not apply to the plaintiff’s emails, as he had not made copies of the emails to store elsewhere, and therefore the web-based emails were the only copies existent and were not backups. However, because the statute was written at a time before the modern email system, Judge Casper reasoned that since the defendant “used her web browser to access [plaintiff’s] emails, the text of those emails were transmitted to her own Internet browser, which is how she was able to see, and later print, [plaintiff’s] emails.” Therefore, it was reasonably inferenced that regardless of the number of times the emails were viewed through downloads of web page representations into web browsers, the web-based service “continued to store copies of those same emails” and were held in “storage of such communication by an electronic communication service for purposes of backup protection of such communication” – meeting the “electronic storage” definition of the SCA.

In this jury trial, a verdict was returned in favor of the plaintiff. The defendant’s movement to judge as a matter of law was denied, and the case closed.

So, what do you think? Should the court have significant leeway for interpretation of statutes referring to electronic information that date back to pre-Internet periods? Should web-based emails automatically be considered a form of backup storage, in light of the way these services are used today? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Sanctions Denied over Destruction of Audio Evidence in Discrimination Lawsuit – eDiscovery Case Law
 

In Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122 (C.D. Ill. Jan. 17, 2014), the plaintiff filed a motion for default and sanctions relating to spoliation of evidence with a federal court, after a district court issued a Report and Recommendation (R&R) to deny the motion. Illinois Senior District Judge Joe Billy McDade ultimately declined to impose sanctions, due to a lack of evidence regarding the timing of alleged spoliation, and the plaintiff’s inability to establish bad faith on the part of the defendants.

The plaintiff’s motion argued that the defendants had destroyed audio recordings of closed-session school board meetings that were relevant to the issues of this discrimination case, and that in doing so the defendants had violated Illinois common law, the Illinois Open Meetings Act (OMA), and the defendants’ own documentation retention policies. As such, the plaintiff requested spoliation sanctions.

It was acknowledged that relevant discussions appeared to have taken place at an unknown number of school board meetings “[b]etween May 1, 2007 and January 1, 2009). The policy of the school district states that audio recordings of such meetings are to be maintained for at least 18 months, and only a vote by the school board could cause them to be destroyed. It appears the policy was “designed to fulfill the requirements of the Illinois Open Meetings Act…”

However, the plaintiff argued that an “unknown number of recordings” had been destroyed without a vote, and further that the destruction had occurred at a point when litigation was “either on file [or] reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit.” Reasonable anticipation should have occurred on March 24, 2010, at which point the plaintiff had notified the defendants that she believed she had been discriminated against due to her gender. Additionally, the plaintiff stated she believed the relevant audio recordings may have been destroyed less than 18 months after they were created, which would again be in violation of the defendants’ own policies.

Judge McDade’s review of the issues focused first on the alleged violation of the defendants’ retention policies and the OMA, and considered whether these violations were sufficient cause to impose sanctions. With regard to the OMA and the pursuant duty to preserve, it was stated that the “existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court…” and that the general duty imposed by the OMA is to “preserve audio recordings of closed session meetings, not a specific duty to preserve evidence for litigation, and certainly not for this specific litigation.”

Further, Judge McDade reasoned that “bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” Bad faith might have been inferred, had the destruction of the audio recordings occurred before the defendants had reasonable indication of the possibility of litigation. However, the plaintiff was unable to establish the exact time period when the tapes had been destroyed, and therefore “[i]n such a case, the Court will not infer bad faith.”

Without evidence of the timing of the destruction, which was deemed a key factor in the defendants’ “duty to preserve that arises in direct relation to the pendency of potential litigation,” Judge McDade found that sanctions were “not appropriate under these circumstances.” The matter was then referred back to the district court to resume pre-trial proceedings.

So, what do you think? Should the burden to prove timing for the destruction of evidence in order to demonstrate bad faith rest with the plaintiff? Are sanctions warranted in cases where bad faith might be inferred, save for one factor that cannot be demonstrated? 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.

Government Attorneys Have eDiscovery Issues Too – eDiscovery Trends
 

When many eDiscovery professionals talk about their clients, they’re usually talking about law firms and corporations.  However, government agencies have their own eDiscovery challenges.  According to findings from Deloitte’s 7th Annual Benchmarking Study of e-Discovery Practices for Government Agencies, attorneys and other professionals in government agencies have their own problems and concerns when it comes to eDiscovery.

One hundred twenty three (123) professionals from various government agencies participated in the survey, with attorneys comprising 80% of the respondents.  Depending on the area, the respondents showed different levels of confidence in their preparedness regarding discovery and handling of discovery matters:

  • When it comes to challenges with regard to handling, processing, reviewing, or producing ESI, the respondents ranked the most significant challenges as follows: 1) Internal systems and processes, 2) Buy-In from senior management, 3) Communicating with IT, 4) Budgetary issues/constraints;
  • When asked if they felt adequately prepared to discuss matters regarding eDiscovery with opposing counsel, 53% of the respondents said ‘Yes’;
  • However, when asked if they feel that you have adequate technical support when dealing with opposing counsel regarding electronic discovery, only 25% of the respondents said ‘Yes’;
  • 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;
  • Predictive coding may be the wave of the future, but only 17% of survey respondents indicated that they had used it in any of their cases;
  • When asked what issues are driving upper management to explore more advanced electronic discovery solutions, the most commonly identified issue was ‘respond to increasing amounts of data’ (20% of respondents).  However, 19% of respondents indicated that their upper management is not actively looking for an eDiscovery solution;
  • Top three challenges in identifying ESI identified by respondents were: 1) Volume of data, 2) obsolete or proprietary data and 3) insufficient manpower.

You can download Deloitte’s 4 page report here.  If you’re not in a mood to read and you like your findings condensed USA Today infographic style, you can open up their one page infographic here.

So, what do you think? Do you work for, or with, government agencies?  If so, do any of these findings surprise you? 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.

Smaller Law Firms Save Big with Cloud-Based eDiscovery – eDiscovery Trends

According to a new article in ABA Journal (Cloud-based e-discovery can mean big savings for smaller firms, written by Joe Dysart), if you are a smaller law firm, it may make more sense to “rent” your eDiscovery applications in the “cloud” rather than bring a full-fledged hardware and software solution in-house.

Dysart’s article quotes a couple of panelists from a panel session at the recent LegalTech (LTNY) conference, including panelist Alan Winchester, a partner at the New York City firm Harris Beach, who stated: “For firms without robust IT departments, it grants them the experts to manage the technology operations and security.”

The article also identifies some benefits of using cloud-based eDiscovery solutions, including:

  • No need for software updating: Updates to cloud software tend to evolve over time, with users easily absorbing smaller, steadier changes over a much longer time span.
  • Best practices are continually updated: eDiscovery cloud vendors learn to avoid the pitfalls with software much more quickly, given that they are working with multiple law firms at once. Essentially, the mistakes and misunderstandings that can happen with an eDiscovery software package tend to happen at a much faster rate.
  • No need for yearlong rollouts: With eDiscovery in the cloud, all the hardware and software installation logistics are sidestepped. Instead, firms can focus entirely on training staff and bringing them up to speed.
  • The return on investment can be very attractive: Smaller law firms may go months or even years before needing a robust eDiscovery package. Instead of spending major dollars – and then watching helplessly as the system grows obsolete – they can go to the cloud for eDiscovery on an ad hoc basis and often save handsomely.

As platform manager for CloudNine Discovery’s OnDemand® eDiscovery review application (shameless plug warning!), I can attest to the benefits above with some of our own clients.  When we have software updates to apply, it’s a simple rollout (typically on a Saturday night for up to a couple of hours – our developers have no life!) for all users of the software.  And, assisting various clients has enabled us to learn how the software can be modified to meet their needs (the priorities in our ever-changing development roadmap are largely influenced by our own clients’ requests).

If you’re a small firm shopping to “rent” an eDiscovery application, consider this:

  • Know where your data is stored: It’s your data, so you should be able to know where it’s stored and know that it’s secure.  Is it stored in the US or internationally?  You don’t want to have issues getting to your data when you need it most.
  • Try it before you buy it: The cloud provider should let you conduct a no risk trial with your own data before you have to make a purchasing decision (see the banner below if you want to check out CloudNine’s no-risk trial offer).
  • Training and support should be free: The application should be easy to use, but it still helps to get training as well as application support when questions arise.  However, you shouldn’t have to pay for it.

As Dysart’s article concludes, “law firms do need to take a hard look at the technology both ways before taking the plunge”, so it’s always important to consider the pros and cons as it applies to your firm.  Nonetheless, the benefits of cloud-based eDiscovery solutions make it an attractive option for many law firms today, especially small firms with limited budget and resources to manage the ESI in their cases effectively.

So, what do you think? Have you considered cloud-based solutions for your eDiscovery projects? 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.