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Electronic Discovery

James D. Zinn, Managing Director of Huron Consulting Group – eDiscovery Trends

This is the third of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is James D. Zinn. James is Managing Director of Huron Consulting Group.  James leads the technology team at Huron Legal, which includes the data collection, processing, hosting, production, and forensic analysis services along with infrastructure, support, and software development. James has extensive experience managing the strategic and tactical use of technology within investigative and litigation consulting matters.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The Legal Tech conference was another good experience for us as a company.  It was an overall good conference for us with good traffic at our booth, great meetings throughout the week and good business opportunities coming from the show.  So, overall our impressions were positive and we felt good about the experience all around.  In fact, I would say that it was one of the best LegalTech experiences ever from our perspective.

As I look around the conference in terms of trends, the biggest trend that I noted was an increase in the discussion about Information Governance.  The whole concept of Information Management and Information Governance has become a popular topic.  There were lots of exhibitors using Information Governance or related language when talking about their products.  There were also several sessions and panel discussions about it, as well.  So, that stood out to me as the biggest trend I saw at the show over the previous year. I think that observation is reflective of an overall trend toward a greater focus on Information Governance and the impact it has on a number of things, including discovery costs and workflow.

The other trend that I see for 2014 is more stratification among the service providers.  Part of the reason for that is continued industry consolidation.  I think there is a growing differentiation between service providers, which we feel from our own experience, as well.  On one hand, a number of providers are continuing to mature and develop their full service offerings while on the other hand; there are new entrants into the market focusing on the application of technology as a differentiator from legacy service providers.

A related trend is greater acceptance of cloud-based solutions.  I think a number of providers are focusing on leveraging cloud-based infrastructures and technologies in their solutions.  I’m sensing an increased acceptance within the marketplace for cloud-based solutions.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t have any particular source of information that would lead me to do anything more than speculate on the timing of their approval, but I do see them being accepted this year.  While the amendments have generated a fair amount of discussion, I think they represent a positive trend and will be approved and enacted.  I think the impact on the up front preparation and speed of litigation has been talked about extensively and will be a natural evolution for those who are already well prepared in that area. They will cause even more pain than the last amendments for those who are not as organized.  The impact on the early calendar of litigation may come as a shock to the litigants who aren’t as organized as they need to be.  I also think the introduction of proportionality via the amendments is a good thing and will bring some reasonableness to the burden of discovery that many of our clients face.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

That’s an interesting question because I wonder how much my experience personally and our experience as an organization is influenced by attorneys who are self-selecting.  In other words, do we see a representative sample of attorneys in the marketplace?  I would argue that we’ve seen an increase in the sophistication of our clients, both our clients at law firms and those at corporate legal departments.  To generalize them as a group, they are definitely more educated and more knowledgeable around eDiscovery issues than they were a few years ago.  But, I don’t know if that’s because of the nature of the types of clients we tend to attract are those that have recurring needs for discovery services and have been dealing with it for a number of years.

I do think that, as an industry, there are a lot of resources available to educate, so for those who do not avail themselves of those resources, it may be a reflection of their lack of a regular need for those services.  It’s easy to say that there could always be more education provided, but I think that you’re correct in the assessment that there are a number of good resources already.

What are you working on that you’d like our readers to know about?

We pride ourselves on being close to our clients and their needs and so we are continuing the development of our full-service offerings.  Our focus continues to be around holistic solutions to our clients’ problems, discovery being one of them, Information Governance certainly being another, compliance being a third, and so on.  So, in each of these areas, our focus is on how we can provide a complete solution to our clients.  By “complete”, I’m referring to everything from strategy and organizational assistance to help with the implementation of technologies or procedures and then on to the actual provision of services.  Huron is continuing within eDiscovery and beyond eDiscovery within the legal industry to focus on providing relevant, holistic solutions.

Thanks, James, for participating in the interview!

And to the readers, 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.

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

This is the second of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC, is a consulting practice serving the legal services industry. Tom has an extensive record of working with law firms, corporate counsel and legal services providers as a consultant, advisor, project manager, and has also held the CIO position at two major law firms.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

While I didn’t attend the show this year (for the first time in many years), I have been monitoring communications about the show and what took place and have talked with a number of attendees, so I do have some perspectives about it.  Not surprisingly, a major theme this year was the surge in attention to Information Governance.  Information Governance is becoming the area that is grabbing attention within organizations, and rightly so.  We’ve been saying for quite some time in “EDRM-land” that if you can get your electronic house in order, eDiscovery challenges are mitigated and costs can be considerably reduced.

One of the results that you’re starting to see is the appearance of tools to help with that whole Information Governance process of: What do you have?  Who has it?  Where is it?  How do you curate it?  How do you identify what you no longer need to hold onto and effectively get rid of it?  And, when litigation does occur, how do you effectively hone in on the ESI that you need for that particular matter?

Another trend that I’m seeing in general is really two somewhat related trends: Metrics and Project Management.  Metrics has been something that has been slow to catch on for a long time, but I think organizations are now catching on to the fact that if you don’t measure it, you can’t manage it.  The light is coming on for people who are realizing that “yeah, I’d better start tracking these things”.  Metrics have really started to become more mainstream within the industry.  Associated with that is Project Management.  In eDiscovery, you have to have a well-defined, repeatable process to manage the projects effectively.  The more disciplined you are, the better your outcomes will be.  So, metrics and project management are really “coming of age”.

We’re also seeing more and more activity with mobile devices.  You’ve got smart phones, iPads and other tablets, BYOD, etc.  And, that’s really where more and more ESI will be.  I think mobile platforms are starting to take over as far as the means of communication and, in many cases, that’s where the story is.  And, what eDiscovery is all about is finding out the story.  Not that email is going to dry up any time soon, but you’re starting to see that the growth is in mobile and social media.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I agree.  From what I’m seeing, it may have gotten a little bit better, but not a whole lot.  For change to come, the impetus has to come from clients.  Clients need to be more demanding and validate their outside counsel attorney’s claims of “I know all about eDiscovery” when maybe all they did was attend a CLE.  There has to be proof of their knowledge, but I’m not sure how clients will go about obtaining that proof.  But, they’re the ones paying the bill, so the impetus will have to come from them.  I don’t think it will come from a bar association.

What are you working on that you’d like our readers to know about?

I’m very enthused about EDRM this year from a couple of aspects.  One, we’re very excited that we’re moving towards a non-profit model for EDRM.  There’s been a lot of work so far and there’s still a lot of work to do, but I think we’re on track to complete that this year.  I think that’s really going to serve EDRM well for the longer term.  What I mean by that is that it’s been the “George and Tom show” and we realize that it can’t be if it’s going to continue and flourish for the long term.  There’s a lot of energy and a lot of good minds behind this initiative and I’m looking forward to that.

As far as projects are concerned, the Data Set group has been busy further developing the Privacy & Security Risk Reduction Model.  There are some new frameworks coming out and a few other things that we will hopefully be able to announce fairly soon.  The projects are continuing to create and update helpful tools and frameworks which, to some extent, address the education question you asked me earlier.  Information Governance is one of those project teams that is working on some interesting items.  Also, we started in October with a monthly update, so we’re doing a better job of letting people know about all of the accomplishments of EDRM.  In retrospect, we should have been doing that a lot earlier.  You don’t realize on a day-to-day basis what we’re accomplishing, but when we put together a monthly update, we realize that we did accomplish a lot.  Our 2013 end of year update shows that there were several things we accomplished in 2013 that were valuable to the industry.  So, the future is bright for EDRM from a variety of perspectives.

With regard to Apersee, we’re still working to prove to providers that there is value in maintaining their profiles about their products and services.  We understand that it takes effort to do so and we’re still trying to demonstrate the value to them.  The more providers put into it, the more valuable it becomes to consumers.  The Apersee Special Requests are a bright spot. When we distribute Apersee special requests from the consumer, looking for a specific complex, time-sensitive service, we get dozens of responses from providers within minutes to a couple of hours.  Generally, the consumer tells us within a day or less “Stop, we’ve got enough responses, this is great.”  So, the effectiveness of the Apersee special request tells us that there is a need to be fulfilled.  We’ve been told by consumers that it’s very valuable service, so we’re excited about that.

Thanks, Tom, for participating in the interview!

And to the readers, 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.

Houston, Hello! The Sedona Conference is Coming! – eDiscovery Trends
 

If you’re in my hometown of Houston and want to learn more about eDiscovery from a well-respected panel of judges and eDiscovery experts, you have an excellent opportunity next month to do so at The 8th Annual Sedona Conference® Institute Program on eDiscovery in a New Era: New Technologies, New Media, New Rules.

It’s a two-day program on March 13 and 14 at the Hilton Americas Hotel in downtown Houston.  As the Sedona Conference site states:

“The undisputed, non-partisan thought leaders in eDiscovery will gather in Houston to explore emerging challenges and trends that stem from evolving technology. Co-chairs Monica Latin of Carrington, Coleman, Sloman & Blumenthal, L.L.P. and Eric Schwarz of Ernst & Young have gathered an extraordinary faculty of judges, top eDiscovery practitioners, in-house counsel, and experts to lead the dialogue on the following topics:

  • Case law update
  • Pending amendments to the Federal Rules of Civil Procedure
  • Data breach incident investigation and response
  • eDiscovery in a crisis, while under scrutiny, in a regulated industry
  • TAR and predictive coding
  • Professional responsibility with social media, mobile devices and the cloud
  • Corporate counsel perspectives on new media in terms of preservation, collection, and review
  • Judicial Roundtable
  • eDiscovery outside the courtroom”

Judicial experts on the panel include Texas Supreme Court Chief Justice Nathan Hecht, Texas District Judges Lee Rosenthal and Xavier Rodriguez and New York Magistrate Judge Andrew Peck.  There will also be eDiscovery experts on the panel, including Jason R. Baron and Maura Grossman, and corporate experts from Raytheon Company, GlaxoSmithKline, Intel Corporation and BP America, among others.

Sessions include: Case Law and Rules Amendments updates, eDiscovery Under Pressure, Technology Assisted Review (with Jason R. Baron, Maura Grossman and Judge Peck on the panel, that should be a can’t miss!), Professional Responsibility in Social Media and the Cloud, Making the Business Case for eDiscovery, a Corporate Counsel Roundtable and Responding to Data Breach Incidents.  There is also reception after the sessions on the first day.  Sessions end at 1:00 pm on Day 2 to give time for travelers to return home.

The session is still available, but limited to 200 participants.  It’s not free, costing $1,295 for regular attendees – government employees get a discount down to $845 and Working Group Series (WGS) members down to $1,195.  On the site, The Sedona Conference notes that “We are applying for advance accreditation for 660 minutes of MCLE credit, including 60 minutes of ethics credit in states requested by those who register.  For the benefit of ARMA members, we will also apply for ICRM Certification Maintenance Program (CMP) advance accreditation.”  If you have any questions about the status of those CLE and certification accreditations, contact The Sedona Conference.

For more information about the program, including a full agenda and list of speakers, click here.

So, what do you think? Do you plan to attend the program? 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.

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad also writes the Litigation Support Industry Blog, which covers news about litigation support and eDiscovery companies’ funding activities, acquisitions & mergers and notable business successes. He has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!

What significant eDiscovery trends do you see for 2014?

Well, I think that technology assisted review tools will continue to gain traction and the software will continue to make the review process more intuitive.  I think predictive coding software is evolving to provide real-time predicted relevance scores for the collection as each document is reviewed.  One of our partners, Hot Neuron, announced last month that Version 4.0 of their Clustify software, is the first technology-assisted review tool to offer real-time predictive coding.  I also think that the technology associated with predictive coding will be used more in other areas of the eDiscovery life cycle, particularly Information Governance.

Another trend, one that I discussed last year, is integration of “best of breed” cloud-based applications to make the discovery process more seamless. Our alliance with BIA and the integration of their TotalDiscovery legal hold and collection tool to our review application, OnDemand®, has continued to be used by our clients to support preservation through production.  BIA has tremendous expertise and software to support the left side of the EDRM model and it’s a logical fit for the services and software we provide from collection to production.  Personally, I believe that the “best of breed” integrated applications approach is a preferable alternative to a complete solution because it’s difficult to be an expert in all phases of discovery.

I also think that it’s more difficult than ever for the small to medium sized firm to compete with the big firm that has most of the attention from the eDiscovery vendor market and has more resources in house to manage their discovery workload.  Most small to mid-sized firms lack the core competency, the infrastructure, the project management expertise and the overall personnel in house to provide the full range of services that large corporate clients are demanding, especially for litigation support and discovery services.  More than ever, these firms will need to leverage virtual resources to compete and provide the level of services their clients expect.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t really have a prediction as to whether they will be approved this year.  I know there has been controversy with some of the proposed rules changes, especially Rule 37(e), regarding the level of culpability required to justify severe sanctions for spoliation and that Judge Scheindlin and others have criticized the rule.  I wouldn’t be surprised to see some changes to that rule before adoption.  Regardless, it seems like a lot of attorneys don’t follow the rules adopted back in 2006, so the rules will only be effective if attorneys adhere to those rules and courts hold them to those standards.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Yes, I agree.  We work with a lot of firms whose attorneys lack basic eDiscovery fundamentals.  In some cases, the managing partners know that and have been asking for us to provide seminars and webinars to educate them on eDiscovery best practices.  And, we have been providing more consulting than ever to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production such as native files with included metadata.

As for what can be done, I think it’s imperative for each provider to provide resources to educate their clients and the legal profession as a whole.  We do that with our blog, eDiscoveryDaily.  As we approach 300,000 lifetime hits and 1,000 lifetime posts, both of which we will reach later this year, I’m proud of the knowledge base that this blog has become.  This year, we are also looking to really ramp up CLE training for attorneys that want to become more comfortable with technology.  There are numerous other great blogs and resources out there too.  I think we have to keep pushing and keep finding ways to reach attorneys and give them useful resources that can simplify the discovery process, which is what we’re all about at CloudNine.

What are you working on that you’d like our readers to know about?

In addition to our continued integration success with BIA and our partnership with Clustify, we recently released a brand new version of our review application OnDemand® , called Universal OnDemand.  We called it “Universal” because we have re-designed it to work in any browser, so clients can use it whether they prefer Internet Explorer, Firefox, Google Chrome or even Safari on a Mac.  We will be working to expand the application to support use with tablets this year and, as always, working to add features requested by our clients, who are the primary drivers of our development priorities.

We have also been working on a new advanced program that we call the Virtual BIG Firm™ program.  It’s a unique package of the full range of services that we have provided for years, along with our OnDemand review platform, for mid-sized firms that want to compete with the big firms, but don’t have the personnel, infrastructure or expertise to make it happen.  We created our Virtual BIG Firm program based on our experience working with over one hundred law firms for more than eleven years.  Our Virtual BIG Firm program appeals to firms interested in growing their practice.  These firms value continuing legal education, technology advances and they feel comfortable delegating.  It’s not for everybody, so we continue to offer our basic services and software as we always have, but for the firm that has a significant litigation workload but not the resources to fully manage it effectively, it’s a program that provides those resources at a fraction of what big firms spend on personnel & technology.

Thanks, Brad, for participating in the interview!

And to the readers, 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.

Dispute over Production Format and Search Terms for Electronic Discovery Highlights the Need for Cooperation – eDiscovery Case Law
 

In Saliga v. Chemtura Corp., No. 3:12cv832 (RNC), 2013 U.S. Dist. (D. Conn. Nov. 25, 2013), a discrimination case heard by Connecticut Magistrate Judge Donna F. Martinez, the plaintiff and the defendants had spent a year arguing over the format of production for Electronically Stored Information (ESI) to be used in discovery, as well as relevant search terms, before the plaintiff filed a motion to compel.

Prior to this motion, Judge Martinez had held a status conference and chastised both parties concerning the issue of cooperation, noting that discussions about ESI should begin early in the case under Rule 26(f), which requires that both parties confer in order to develop a discovery plan that addressed “any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.” However, it was determined that given the current state of impasse, another meeting between parties would not reach a resolution, necessitating court intervention.

The format for production was the first matter addressed. Originally, the plaintiff had asked that the defendant produce emails for discovery in native format, which would contain application metadata and could also contain system metadata relevant to the litigation, such as file creation dates or the identity of the computer on which the email was created. The defendants’ objection stated that “standard practice is to produce ESI in searchable PDF or TIFF and there is ‘no basis or need’ to produce the emails in native format.”

However, the defendants did not claim any undue burden or expense with regards to the requested production format, nor did they offer a reason why they were unable to comply. Therefore according to Rule 34(b)(1)(c), which states that the requesting party, in this case the plaintiff, may “specify the form or forms in which electronically stored information is to be produced,” Judge Martinez ordered the defendant to produce the requested emails in native format.

The next issue addressed was a complaint by the defendant that two of the requests for production from the plaintiff were overly broad, and therefore unduly burdensome. The plaintiff listed 14 employees to search, and the defendant stated that search results for the employees’ emails yielded more than 925,000 hits. In addition, the complaint claimed this request was a duplicate of the plaintiff’s requested search terms, which caused similar problems.

Prior to the complaint, the parties had failed to agree on the search terms to be used, or how the search should proceed. The unresolved dispute necessitated Judge Martinez’s intervention, despite the fact that the court was “loath to decide the search terms to be used because the parties are far better positioned to do so.” In the discovery request, the plaintiff asked for the defendants to use 12 relevant words and phrases, variously combined with versions of the custodians’ names to create 37 search terms in total. The defendants objected to one of the 12 base search terms, “India Audit,” and claimed that inclusion of the custodians’ names would be “cumulative and unnecessary.”

Judge Martinez agreed that it would be “superfluous” to incorporate the names of the custodians into the search terms, but denied the defendants’ request to discard the contested search term “India Audit” and ordered that it be included.

Finally, the plaintiff’s request for information on the defendants’ data collection process was considered, in light of a letter the plaintiff had submitted to the defendants three months prior that contained “three pages of technical questions about the defendant’s system configuration, acquisition methods and data extraction” and told the defendant “not to produce any ESI discovery until the plaintiff was satisfied that her concerns and questions were resolved.” Judge Martinez rejected this request, stating that “the plaintiff’s questions may not impede the defendant’s production, which must take place immediately.” The plaintiff was advised to address the opposing counsel should she have any legitimate concerns about the procedures for data collection.

So, what do you think? Should the court step in to define search terms when both parties fail to agree on them? Should the plaintiff’s right to specify a production form for ESI supersede standard practices? 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.

Bad Faith Violations in Discovery Lead to Sanctions for Defendant – eDiscovery Case Law

Regarding the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385, 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. (S.D. III. Dec. 9, 2013), the defendants’ repeated failure to preserve and produce documents during discovery was found to be in bad faith. The defendants were ordered to produce the documents, or to explain why they couldn’t be produced, and to pay a hefty fine plus the plaintiff’s costs and fees for pursuing discovery motions. The order left room for additional future sanctions, should the bad faith behavior continue.

In the case before Chief District Judge David R. Herndon, the Plaintiffs’ Steering Committee (PSC) filed a motion to seek sanctions against the defendants due to failure to preserve evidence and a faulty discovery hold. The PSC stated four types of discovery violations outlining the defendants’ failure to: (1) identify and preserve the files of a key custodian, (2) preserve evidence or disclose and produce evidence in a timely manner, (3) preserve or produce text messages from employees in a timely manner, and (4) provide passwords for use in collecting documents, resulting in a delay for identifying and producing data.

Judge Herndon noted in addressing the motions that the defendants “have simply failed to follow the Court’s orders,” stating that the “ongoing discovery abuses” by the defendants have “plagued” the proceedings nearly since the beginning of this litigation. He went on to say that he had “never seen a litigation where the problems are just ongoing and continual, and every month or every week there’s an issue of this failure and that failure and the other failure. It is just astounding.”

Due to the egregious and continued issues brought on by the defendant’s “numerous and substantial” discovery violations, as well as the effect of prejudicing the plaintiffs and the defendants’ “contumacious disregard for [the Court’s] authority,” Judge Herndon followed Rule 37 which grants the Court the inherent authority to award sanctions and fined the defendants nearly $30,000 – an amount that is roughly equal to $20 per case in this multidistrict litigation (MDL). The defendants were also warned that Judge Herndon believes in “progressive discipline,” a clear statement that further sanctions would be imposed if the defendants’ “endless parade of excuses” continues.

Furthermore, the defendants were ordered to audit their records in an attempt to determine whether additional undiscovered material existed. While Judge Herndon expected that some deficiencies would be found, the audit uncovered a “growing number of ‘gaps’ in production” resulting from the defendants taking liberties with the company-wide litigation hold by applying a “too narrow and an incremental approach.”

Judge Herndon remarked to each of the excuses offered by the defendants with regards to various failures to preserve discovery documents and electronically stored information (ESI), stating that the defendants “do not get to pick and choose which evidence they want to produce from which sources” and that their “efforts to suggest that they and they alone decided to implement such a proportionality test to the litigation hold smacks of a post-debacle argument in desperation to salvage a failed strategy regarding production evasion.” Therefore, the defendants’ attempt to claim good faith was dismissed, as sanctions were imposed.

This case was previously covered on this blog here.

So, what do you think? Were these sanctions a strong enough deterrent to discovery violations in other cases? Or should apparent deliberate evasion and ignoring court orders lead to stiffer penalties? 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.

Announcing Fourth Annual LTNY Thought Leader Series! – eDiscovery Trends

Bad weather, travel cancellations and stolen laptops could not keep us from keeping the tradition alive.  It’s time for another thought leader interview series!

In our efforts to continue to bring our readers perspectives from various thought leaders throughout the eDiscovery community, eDiscoveryDaily has published several thought leader interviews over the nearly 3 1/2 years of our existence.  The past two years at LegalTech New York (LTNY), we were able to conduct interviews with several eDiscovery industry thought leaders and announced the schedule for those interviews after the show.  Click here to see the schedule for last year’s interviews and here to see the 2012 interview schedule with links to each interview we conducted in each year.

We had a full slate of interviews that were cancelled because of our travel difficulties to New York.  Thankfully, every interviewee graciously rescheduled with us over the past few days.  We really appreciate it!  We’re pleased to introduce the schedule for the series, which will begin next Monday, February 24.

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

Monday, February 24: Brad Jenkins, President and CEO of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Thursday, February 27: Tom Gelbmann, Principal Analyst of Gelbmann & Associates and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  Since 1993, Tom has helped law firms and Corporate Law Departments realize the full benefit of their investments in Information Technology.

Friday, February 28: James D. Zinn, Managing Director of Huron Consulting Group.  James is the Laboratory Director for Huron’s National Digital Evidence Laboratory. He manages a team of professionals in the efficient and effective performance of digital evidence and computer forensics examinations. James also helps organizations develop and improve their business processes and technology to provide efficient and cost-effective electronic discovery and computer forensic examinations.

Monday, March 3: Laura Zubulake, Plaintiff in the landmark Zubulake vs. UBS Warburg case.  Laura is also the author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here.

Wednesday, March 5: Alon Israely, Manager, Strategic Partnerships, Business Intelligence Associates (BIA).  Alon has over eighteen years of experience in a variety of advanced computing-related technologies and currently leads the Strategic Partner Program at BIA.

Friday, March 7: Adam Losey, President and Editor-in-Chief, IT-Lex.  Adam is president and editor-in-chief of IT-Lex, a technology law not-for-profit educational and literary organization.  He is also an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

Monday, March 10: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  As President of Socha Consulting LLC, George offers services as an eDiscovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support.

Wednesday, March 12: Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.

Friday, March 14: Tom O’Connor, Director of the Gulf Coast Legal Technology Center.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.

Monday, March 17: Ralph Losey, Partner and National eDiscovery Counsel for Jackson Lewis, LLP.  Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery, a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog, founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world and the creator of the Electronic Discovery Best Practices (EDBP.com) model.

Thursday, March 20: Craig Ball, Law Offices of Craig D. Ball, P.C.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com.

Thanks to everyone for their time in participating in these interviews and rescheduling them after my travel issues!

So, what do you think?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

EDRM Updates Privacy & Security Risk Reduction Model – eDiscovery Best Practices

The Electronic Discovery Reference Model (EDRM) continues to pile up the accomplishments. In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback and EDRM also published new Collection Standards for collecting electronically stored information (ESI).  Now, EDRM is making updates to earlier accomplishments from just five months ago.

As they announced last week, EDRM announced the reintroduction and refinement of its Privacy & Security Risk Reduction Model (PSRRM). Initially introduced last September by EDRM’s Data Set group (and covered on this blog here), the model provides a process for reducing the volume of private, protected and risky data by using a series of steps applied in sequence as part of the information management, identification, preservation and collection phases of the Electronic Discovery Reference Model.

The PSRRM model is used prior to producing or exporting data containing risky information such as privileged or proprietary information. The middle steps are cyclical and are repeated until the amount of private material is reduced to a desirable amount. The private data is finally quarantined in the final step before the remaining information is produced.

Recent high profile data breaches at Target and Neiman Marcus are prime examples to illustrate that high risk data can cause significant trouble and exposure for organizations today.  As their press release notes, EDRM has revised the PSRRM to include industry feedback and real-world experiences using the model in data remediation and eDiscovery projects to help companies address this exposure in an organized and systematic manner.

The current resource page for the PSRRM model is located here.

So, what do you think?  How do you handle security of your organization’s sensitive data?  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.

Effective Information Governance Takes Initiative – eDiscovery Best Practices

Despite the fact that I missed LegalTech New York (LTNY) last week because of travel difficulties, eDiscoveryDaily is still conducting our fourth annual LTNY thought leader interview series again this year.  I owe a BIG thank you to the thought leaders who were gracious enough to reschedule with me this week and early next week.  We will publish the schedule for posting the interviews early next week.  Stay tuned!

One of the best side-benefits I get from conducting thought leader interviews for the blog is that I get to learn about new programs in the industry that promote best practices.  I learned about one such new program in my thought leader interview with Jason R. Baron, Of Counsel with Drinker Biddle & Reath LLP and former long-time Director of Litigation for the U.S. National Archives and Records Administration (NARA).  Through my interview with Jason, I learned that the Information Governance Initiative (IGI), a cross-disciplinary consortium and think tank focused on advancing information governance, launched last week.

As announced on their expansive launch press release, the IGI will publish research, benchmarking surveys, and guidance for practitioners on its website. The research will be freely available, and the group will also be providing an online community designed to foster discussion and networking among practitioners.

The IGI was founded by Barclay T. Blair, who is the group’s executive director and Bennett B. Borden, who is the organization’s chair, with Jason R. Baron as co-chair. Jay Brudz is general counsel.

As Jason stated on the press release, “I see the IGI’s mission as sounding a call to arms that current information practices are unsustainable in our increasingly big data world, and that IG solutions exist that better leverage new technology and smart practices. Unless corporations and government agencies take more concerted actions, information overload and mismanagement may pose a serious threat to the economy and even to the justice system itself.”

The IGI identifies several leading providers as supporters and is also partnering with several organizations to bring IG stakeholders from different disciplines together to work on the information governance problem, including The CFO Alliance and ARMA International.

Best of all, it’s free to join and receive updates from the IGI and to gain access to their publications when they are available.  Click here to join.

Based on the thought leader interviews that I’ve conducted so far, Information Governance was the most talked about trend at this year’s LTNY.  It will be interesting to see what impact the IGI has on providing best practices and guidance for managing information.

So, what do you think?  Are you interested in the IGI? Will you join?  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.

Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff – eDiscovery Case Law
 

In Brown v. West Corp., No. 8:11CV284, 2013 U.S. Dist. (D. Neb. Dec. 4, 2013), the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

The most recent motion saw the plaintiff asking for sanctions under Federal Rule of Civil Procedure 37(b), stating that the defendant failed to comply with the prior order, the purpose of which was stated to “lay bare the defendant’s search process and expose any deficiencies that might be a basis for plaintiff’s motion to compel a more stringent search of potentially relevant ESI for preservation.” In addition, the plaintiff asked that additional discovery be permitted.

However, the defendant had in fact complied with the prior order and explained its search processes regarding ESI, noting that its system did not permit a “‘global search’ of all electronic information in West’s possession.” The substance of the magistrate judge’s concerns regarding the prior order had concerned preservation of ESI, and not necessarily discovery requests. Judge Strom noted that the plaintiff had misinterpreted the prior order, and that the defendants had addressed concerns by “explaining the process by which West employees were directed to identify, preserve, and search potentially relevant materials.” Therefore, “the court finds no reason to require more from the defendant by way of evidence of a proper search.”

In the same motion and combined with the efforts to seek expanded discovery, the plaintiff raised two issues of spoliation. One that the defendant had erased the data of three potential custodians who had left the company, and two, that the defendant had failed to halt the automatic deletion of e-mail which may have been relevant to discovery.

Regarding these issues, Judge Strom once again rejected the contentions, stating that the defendant had repurposed the computers of former employees in apparent good faith, and as a regular business practice, “only after making a determination that all of the relevant information stored on those computers was preserved.” Additionally, the objection to automatic email deletion was dismissed because the plaintiff had not identified relevant emails or email categories that are “not subject to defendant’s preservation process or that have been deliberately destroyed in an attempt to thwart discovery.”

Finally, the plaintiff’s request to overturn the magistrate judge’s order that limited discovery to certain custodians was denied. Regarding Federal Rule 26(b), which states in part that requests for discovery should be limited due to “relevance and the balance between likely benefit and the burden on the producing party,” the magistrate judge had found nothing that would “suggest sufficient benefit [to the plaintiff] to warrant the expansive scope of the requested discovery” as outlined by the plaintiff. Such a scope, the magistrate judge felt, would be “grasping at the periphery by reviewing thousands or tens of thousands of emails,” and further that, “a few pointed questions in a deposition [would be] less burdensome.”

So, what do you think?  Should defendants be permitted to limit responses to discovery when producing ESI due to the limitations of their technology? 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.