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Electronic Discovery

ESI Cost Budget Calculator – eDiscovery Best Practices

Last month, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  So far, we have reviewed three budget calculators, the E-Discovery Cost Estimator for Processing and Review, the Doc Review Cost Calculator and the EDRM UTBMS eDiscovery Code Set Calculator. Here is the fourth and final calculator (currently) on the site, the ESI Cost Budget Calculator, provided by Browning Marean, DLA Piper law firm.

As described on the site, this budget calculator estimates costs by project phase. The phases are:

  • ESI Collection
  • ESI Processing
  • Paper Collection and Processing
  • Document Review
  • Early Data Assessment
  • Phase 1 Review
  • Phase 2 Review
  • Production
  • Privilege Review
  • Review of Opposition’s Production
  • Hosting Costs

This single-sheet Excel cost calculator is nice and straightforward.  It covers collection through production, even including a section for review of your opponent’s production and hosting costs (which are becoming more commonplace as more organizations choose cloud-based solutions for their eDiscovery needs).  Two things that I particularly like is that it provides a sequential “line” column to make it easier to refer to a particular line item and also a comments/assumptions column for documenting (what else?) your comments and assumptions.  I also like that all of the numbers are in one column (column C), making it easier to follow the cost computations.  The sheet also includes a header at the top with a place to enter the matter name and date of the estimate.

Suggestions for improvement:

  • As the site indicates, cost calculations, by phase and in total, are shown in the yellow cells.  However, there are several other calculated cells that are in white (the same color as the enterable cells).  It would be easier and clearer to identify the enterable cells if all of the calculated cells were in a different color to differentiate them from the enterable cells (maybe a third color to differentiate them from the cost calculations cells);
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a pie chart to the numbers to represent the portion of each phase to the total eDiscovery cost for the project.

This workbook would certainly be useful for tracking eDiscovery costs from collection to production, using the metrics appropriate for each section (e.g., custodians and GB for collection, total files and review rate for the review phases, etc.).  It would also be great to update as the phases progress to continue to refine your project estimate.  You can download this calculator individually or a zip file containing all four calculators here.

So, what do you think?  How do you estimate eDiscovery costs?   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.

Federal Circuit Reduces Award for Defendants Based on Costs of Digital Copies – eDiscovery Case Law

In Phillip M. Adams & Associates, L.L.C. v. Sony Electronics Inc., No. 1:05-CV-64 TS, 2013 U.S. Dist. LEXIS 160728 (D. Utah Nov. 7, 2013), a Federal Circuit court limited awards for the defendant with regard to the costs of digital copies, in a decision that followed the reasoning of the Third Circuit and Fourth Circuit in prior cases.

The initial case and jury trial was brought by plaintiff Phillip M. Adams & Associates, with allegations of patent infringement and trade secret misappropriation against Sony Electronics. In this Federal Circuit case brought on appeal, the court reversed an adverse interference sanction against the defendant imposed by the district court during the jury trial. However, the Federal Circuit upheld the grant of summary judgment in favor of the plaintiff.

After the decision to reverse the sanction, the Federal Circuit turned to the defendants’ request to seek their court costs in the case. The Clerk of Courts taxed costs in favor of the defendants in the amount of $168,812.39, a decision that resulted in motions filed by both the plaintiffs and defendants—the plaintiffs seeking to deny the request, and the defendants looking for allowance of additional costs.

The plaintiffs contested the award for several reasons, one being that the defendants had destroyed evidence, as found by the district court and upheld by the Federal Circuit. However, the court did not grant the plaintiffs’ request for dismissal due to the finding that the district court’s adverse interference sanction had been improper, and further that the plaintiffs “failed to present substantial evidence of infringement within the United States after May 3, 2001.” Additionally, the court stated that with the improper sanction, “it seems to follow that sanctions in the form of reduced or eliminated costs would also not be proper.”

However, the reward was reduced by 25%, due in part to the admittance of the defendant that some costs did not relate to a particular claim for which the two parties had previously agreed to bear their own costs.

The Federal Circuit then addressed the additional costs requested by the defendants totaling more than $60,000 for exemplification and for making copies. The breakdown of costs cited by the defendant included “producing TIFF images, OCR, bates labeling, and copying on CDs and DVDs.” Ultimately, the court granted in part and denied in part the request, basing the decision on prior case outcomes for the Third Circuit in Race Tires America, Inc. v. Hoosier Racing Tire Corp. and the Fourth Circuit in The Country Vintner of North Carolina, LLC v. E & J. Gallo Winery, Inc.

Despite the defendants’ argument that “all activities related to the production of ESI [electronically stored information ] should be taxable,” the court rejected approximately half of the costs sought, reasoning that “the process employed in the pre-digital era to produce documents in complex litigation” excluded those steps from taxation that the defendant sought to recover. Therefore, the defendant was allowed only the costs of nearly $30,000 for TIFF imaging and approximately $2,400 for copying to CDs and DVDs. The remaining requests were rejected.

So, what do you think? Should the costs related to digital copying be taxable by courts? Are awards in the production of ESI too generous? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Grants Motion to Compel Defendant to Produce Documents as Requested and Chronicle Approach – eDiscovery Case Law
 

In Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 U.S. Dist. (D. Neb. Nov. 8, 2013), following a motion to compel discovery on behalf of the plaintiff, Nebraska Magistrate Judge Cheryl R. Zwart ordered the defendant to produce documents requested during discovery and required the defendant to produce a sworn affidavit chronicling the methods used in their search for production of the discovery documents.

During this dispute over a franchise agreement, the parties were ordered to meet for a discussion of the discovery matter but failed to resolve any issues.  The plaintiff alleged the documents were not produced due to the defendant’s destruction, deleting, selling, shredding, or otherwise discarding of the documents.  The plaintiff also alleged that their attempts at searching electronically for documents fell short of a good faith effort and was therefore inadequate.  According to testimony by both David and Michelle Florance, the defendants, there was not a thorough search of email accounts for responsive documents.  This “broad” search did not include reviewing client paper files, employee files, caregiver logs, or client care plans or service contracts. 

Additionally, the defendants were unable to explain what efforts their employees used to find information.  Furthermore, their electronic search merely consisted of looking for the words “Home Instead”, and they subsequently deleted any documents found.  The defendants did not retain a copy or forward the document to counsel.  Judge Zwart agreed with the plaintiff and felt they were entitled to a sworn affidavit, “not only to determine the extent of the defendants’ search for production of responsive discovery”, but to also assess the defendant’s culpability in failing to preserve evidence used in litigation.

As to the manner of production, the plaintiff alleged the defendants provided “one large PDF that contains no metadata, no indication of parent-document relationship, on no indication as to the beginning and end of each document.”  The motion requested Judge Zwart to compel the defendants to produce their discovery responses in compliance with the Federal Rules.

According to the parties’ Rule 26(f) report, any document maintained in electronic form during a party’s normal course of business will also be produced in electronic form as “searchable TIFF images with load files to allow images to be loaded into a document production database.”  Those documents not produced in electronic form in a party’s ordinary course of business and not scanned into electronic form prior to the date of production are allowed to be produced in the manner in which they are maintained.  In addition, Rule 34(b)(2)(e) of the FRCP states that a party “must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.”

The defendant’s deposition testimony showed that while the defendants located electronic documents, they did not produce them in an electronic format as required under their agreement with the Plaintiff or the federal rules.  They also failed to organize and label any documents that may have existed in their usual course of business, a requirement under the Federal Rules.  Judge Zwart agreed with the plaintiff, stating that the defendants “failed to organize and label [the documents] as required under the Federal Rules,” and granted the plaintiff’s motion to compel.

So, what do you think?  Should the motion to compel have been granted?   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.

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 4

As we noted on Thursday, Friday and yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).  Today, here are the rest of the cases related to sanctions.

We grouped those cases into common subject themes and have been reviewing them over the previous three posts.  Today is the last post in the series.  Perhaps you missed some of these cases?  Now is your chance to catch up!

SANCTIONS

Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Oh, and, apparently, having your case dismissed isn’t the worst that can happen to you for spoliation of data.  Here are the remaining 13 cases:

Judge Rules Against Spoliation Sanctions when the Evidence Doesn’t Support the Case.  In Cottle-Banks v. Cox Commc’ns, Inc., California District Judge Gonzalo P. Curiel denied the plaintiff’s motion for spolation sanctions because the plaintiff was unable to show that deleted recordings of customer calls would have likely been relevant and supportive of her claim.

Spoliation of Data Can Get You Sent Up the River.  Sometimes, eDiscovery can literally be a fishing expedition. I got a kick out of Ralph Losey’s article on E-Discovery Law Today (Fishing Expedition Discovers Laptop Cast into Indian River) where the defendant employee in a RICO case in Simon Property Group, Inc. v. Lauria threw her laptop into a river. Needless to say, given the intentional spoliation of evidence, the court imposed struck all of the defenses raised by the defendant and scheduled the case for trial on the issue of damages.

Adverse Inference Sanction for Defendant who Failed to Stop Automatic Deletion.  Remember the adverse inference instructions in the Zubulake v. UBS Warburg and Apple v. Samsung cases? This case has characteristics of both of those. In Pillay v. Millard Refrigerated Servs., Inc., Illinois District Judge Joan H. Lefkow granted the plaintiff’s motion for an adverse inference jury instruction due to the defendant’s failure to stop automatic deletion of employee productivity tracking data used as a reason for terminating a disabled employee.

Appellate Court Upholds District Court Discretion for Determining the Strength of Adverse Inference Sanction.  In Flagg v. City of Detroit, the Sixth Circuit held that the district court did not abuse its discretion in issuing a permissive rather than mandatory adverse inference instruction for the defendant’s deletion of emails, noting that the district court has discretion in determining the strength of the inference to be applied.

eDiscovery Vendors Are Not Immune to eDiscovery Sanctions.  In Nuance Communications Inc. v. Abbyy Software House et al., California District Judge Jeffrey S. White refused Wednesday to dismiss Nuance Communications Inc.’s patent infringement suit against Lexmark International Inc. and Abbyy Software House, and awarded reimbursement of plaintiff’s attorneys’ fees and costs in excess of $130,000 as part of discovery abuse sanctions resulting from the late production of relevant documents from Abbyy.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later.  If you think discovery violations by the other side can cause you problems, imagine being this guy. As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

When Lawyers Get Sued, They Have Preservation Obligations Too.  In Distefano v. Law Offices of Barbara H. Katsos, PC., New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile.  In Gatto v. United Air Lines, Inc., New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright. Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

The Hammer Comes Down on Losing Plaintiff for Spoliation of Data.  Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data. You can also be ordered to pay the winning party over $200,000 in fees and costs for the case. In Taylor v. Mitre Corp., Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence.

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages.  In Christou v. Beatport, LLC, Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost. However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

JP Morgan Chase Sanctioned for a Failure to Preserve Skill Codes.  In EEOC v. JP Morgan Chase Bank, District Judge Gregory L. Frost granted the EEOC’s motion for sanctions for spoliation of data, entitling the plaintiff to “a permissive adverse jury instruction related to the spoliation if this litigation proceeds to a jury trial”, and denied the defendant’s motion for summary judgment.

EEOC Sanctioned for Failing to Comply with Motion to Compel Production.  As noted previously in this blog, the Equal Employment Opportunity Commission (EEOC) was ordered to turn over social media information related to a class action case alleging sexual harassment and retaliation. Apparently, they were less than cooperative in complying with that order. In EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael E. Hegarty sanctioned the EEOC for failing to provide discovery of social media content.

Blind Reliance on Vendor for Discovery Results in Sanctions.  In Peerless Indus., Inc. v. Crimson AV, LLC, Illinois Magistrate Judge Susan E. Cox sanctioned the defendant for a “hands off approach” to discovery by relying on a vendor for conducting the discovery from a closely related non-party to the suit.

That’s our eDiscovery case review for 2013.  Let’s do it again next year!

So, what do you think?  Did you miss any of these?  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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted on Thursday and Friday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Friday, we looked back at cases related to production format disputes, search disputes and technology assisted review.  Today, let’s take a look back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue, including the most viewed post in the history of this blog.  Here are three such cases:

Is a Blended Document Review Rate of $466 Per Hour Excessive?  Remember when we raised the question as to whether it is time to ditch the per hour model for document review? One of the cases we highlighted for perceived overbilling was ruled upon last month. In the case In re Citigroup Inc. Securities Litigation, New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

Court Rejects Defendants’ Claim of Undue Burden in ERISA Case.  In the case In re Coventry Healthcare, Inc.: ERISA Litigation, Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough.  In United States ex rel. King v. Solvay, S.A., Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

SANCTIONS

Yes, once again, the topic with the largest number of case law decisions related to eDiscovery is those decisions related to sanctions.  Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Here are the first 13 cases:

Company Should Have Preserved Personal eMails, But No Sanctions (Yet).  In Puerto Rico Telephone Co. v. San Juan Cable LLC, Puerto Rico Magistrate Judge Bruce J. McGiverin found that “plaintiff has proffered sufficient evidence to establish that [the defendant] OneLink failed to preserve relevant emails within its control”, but denied the plaintiff’s request for sanctions at this time because of the “absence of bad faith” on the defendant’s part and the plaintiff’s failure to demonstrate prejudice.

The Ubiquitous Apple Samsung Case and “Patentgate”.  When something gets the “gate” suffix added to it, that’s not a good thing. It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million, then increased back up to $930 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Duty to Preserve Triggered When Litigation is “Imminent”, Not “Reasonably Foreseeable”.  In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

Leaving Your Hard Drives in a Rental House is Negligent, Court Rules.  In Net-Com Services, Inc. v. Eupen Cable USA, Inc., the plaintiff’s destruction of evidence was negligent where its principal failed to take steps to preserve evidence he had stored in a home he rented to nonaffiliated lessees.

Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions. In Anderson v. Sullivan, a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, “scrambling” of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet.  In Logtale, Ltd. v. IKOR, Inc., California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct. The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Imagine if the Zubulake Case Turned Out Like This.  You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data.  If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

Permissive Adverse Inference Instruction Upheld on Appeal.  In Mali v. Federal Insurance Co., the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

Default Judgment Sanction Upheld on Appeal.  In Stooksbury v. Ross, the Sixth Circuit upheld the entry of default judgment as a sanction against defendants that repeatedly failed to comply with discovery obligations, including producing a “document dump” of tens of thousands of pages of nonresponsive information that prejudiced the plaintiffs.

Spoliation Sanctions Can Apply to Audio Files Too.  In Hart v. Dillon Cos., Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer.  On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

Appellate Court Denies Sanctions for Routine Deletion of Text Messages.  In PTSI, Inc. v. Haley, the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

Tune in tomorrow for the remaining thirteen sanctions cases in 2013!

So, what do you think?  Did you miss any of these?  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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 2

As we noted yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and eDiscovery cost reimbursement.  Today, let’s take a look back at cases related to production format disputes, search disputes and technology assisted review.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

PRODUCTION FORMAT DISPUTES

Disputes regarding the form of production appear to be on the rise.  Typically, judges are instructing to provide searchable productions with metadata, but at least one judge ruled that “without Bates stamping and .tiff format, the plaintiff’s production was not reasonably usable”.  Go figure.  Here are the six cases involving production format disputes:

Court Declines to Impose Default Judgment, But Orders Searchable Production and Extends Deadlines. In Kwan Software Engineering, Inc. v. the defendant Technologies, LLC, California District Judge Susan Illston denied the plaintiff’s motion for terminating sanctions against the defendant for late, non-searchable productions, but did order the defendant to produce documents in a searchable format with metadata and extended the pretrial schedule so that the plaintiff would not be prejudiced by the late productions.

Court Denies Plaintiff’s Request for Native Production, Allows PDFs Instead. In Westdale Recap Props. v. Np/I&G Wakefield Commons, North Carolina Magistrate Judge James E. Gates upheld the plaintiff’s motion to compel the defendants to conduct supplemental searches and production, but denied the plaintiff’s motion with regard to requiring the defendant to produce ESI in native format, instead finding that “production in the form of searchable PDF’s is sufficient”.

Judge Sides with Both Parties in Form of Production Dispute. The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

Defendant Compelled by Court to Produce Metadata. In AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society, Idaho District Judge B. Lynn Winmill granted the plaintiff’s motion to compel documents, ordering the defendant to identify and produce metadata for the documents in this case.

Court Rules Production Must be TIFFs with Bates Numbers. In Branhaven, LLC v. Beeftek, Inc., Maryland Magistrate Judge Susan K. Gauvey sanctioned plaintiff’s attorneys for wrongfully certifying the completeness of their eDiscovery production and also ruled that defendants “demonstrated that without Bates stamping and .tiff format”, the plaintiff’s production “was not reasonably usable and therefore was insufficient under Rule 34”.

Waste Management Wants to Throw Away the Metadata. In the case In Re: Waste Management of Texas, Inc., a Texas appeals court refused to grant Waste Management’s petition for writ of mandamus to direct the trial court to withdraw its order to produce native, electronic format with all metadata.

SEARCH DISPUTES

Disputes regarding search terms, with regard to which terms to perform and also whether search terms should be disclosed, were also on the rise this year.  Believe it or not, one plaintiff referred to Boolean searching as “unprecedented”.  Here are the five cases we covered regarding search term disputes:

Court Orders Plaintiff to Perform Some Requested Searches Despite the Plaintiff’s Claim that they’re “Unprecedented”. In Swanson v. ALZA Corp., California Magistrate Judge Kandis A. Westmore granted in part and denied in part the defendant’s request to compel the plaintiff to apply its search terms to his ESI, ordering some of the search terms to be performed, despite the plaintiff’s assertion that the “the application of Boolean searches was unprecedented”.

Without Meet and Confer Approval of its “Triangulating” Approach to Discovery, Defendant Ordered to Supplement Production. In Banas v. Volcano Corp., California District Judge William H. Orrick determined that a defendant’s approach to discovery in which identifying the relevant documents by “triangulating” the defendant’s employees wasn’t discussed with the plaintiff beforehand in a meet and confer. Despite the fact that the court did “not find that defendant’s production technique was unreasonable”, the defendant was ordered to supplement its responses since the approach wasn’t discussed and it left out multiple deponents.

Use of Model Order Doesn’t Avoid Discovery Disputes. In MediaTek, Inc. v. Freescale Semiconductor, Inc., when the parties could not agree on search terms, California Magistrate Judge Jacqueline Scott Corley ordered one party to run test searches before lodging objections and required both parties to meet and confer before approaching the court with further discovery disputes.

If Production is Small, Does that Mean ESI is Being Withheld? In American Home Assurance Co. v. Greater Omaha Packing Co., Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

Court Forces Defendant to Come to Terms with Plaintiff Search Request. In Robert Bosch LLC v. Snap-On, Inc., Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform. The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

TECHNOLOGY ASSISTED REVIEW

With technology assisted review having been approved in several cases in 2012, we started to see some results of that process last year and conclusion of the plaintiff’s efforts to recuse Judge Peck in DaSilva Moore.  We also saw the approval of a multi-modal approach in one case and asked the question whether 31,000 missed relevant documents is an acceptable outcome in another.  Here are six cases related to technology assisted review from 2013:

Plaintiffs’ Supreme Effort to Recuse Judge Peck in Da Silva Moore Denied. As we discussed back in July, attorneys representing lead plaintiff Monique Da Silva Moore and five other employees filed a petition for a writ of certiorari with the US Supreme Court arguing that New York Magistrate Judge Andrew Peck, who approved an eDiscovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding. On October 7, that petition was denied by the Supreme Court.

Judge Says “Dude, Where’s Your CAR?” Ralph Losey describes a unique case in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One). In Northstar Marine, Inc. v. Huffman, the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case?  Back in June, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process. The sticking point may be the ESI consultant in dispute.

Never Mind! Plaintiffs Not Required to Use Predictive Coding After All. Remember EORHB v. HOA Holdings, where, in a surprise ruling, both parties were instructed to use predictive coding by the judge? Well, the judge has changed his mind.

Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected. In the case In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), the Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching. Indiana District Judge Robert L. Miller, Jr. denied the request.

Is 31,000 Missed Relevant Documents an Acceptable Outcome?  It might be, if the alternative is 62,000 missed relevant documents. In January, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin. Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.

Tune in Monday for more key cases of 2013!

So, what do you think?  Did you miss any of these?  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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 1

It’s time for our annual review of eDiscovery case law!  We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, production formats and search parameters, among other things.  So, as we did last year and also the year before, let’s take a look back at 2013!

Last year, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  As always, there are numerous disputes about data being produced and not being produced.  Here are ten cases related to admissibility and the duty to preserve and produce ESI:

Court Rules Defendant Doesn’t Have Controls of PCs of Former Members, Denies Plaintiff’s Motion to Compel.  To require a party to produce evidence in discovery, the party must have “possession, custody, or control” of the evidence. In Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Nemaha Brown Watershed Joint District No. 7, the defendant did not have control over the personal computers of its former members, employees, or staff; it did not have the legal right to obtain information from them “on demand.” Therefore, the court rejected the plaintiff’s motion to compel and refused to order the forensic examination of the personal computers of current or former members, employees, or staff.

Court Rejects Defendant’s “Ultra-Broad” Request, Denies Motion to Compel Production.  In NOLA Spice Designs, LLC v. Haydel Enters., Inc., Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info.  In Salvato v. Miley, a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant.  In Moore v. Miller, Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

Court Rules that Stored Communications Act Applies to Former Employee Emails.  In Lazette v. Kulmatycki, the Stored Communications Act (SCA) applied when a supervisor reviewed his former employee’s Gmails through her company-issued smartphone; it covered emails the former employee had not yet opened, but not emails she had read but not yet deleted.

Google Compelled to Produce Search Terms in Apple v. Samsung.  In Apple v. Samsung, California Magistrate Judge Paul S. Grewal granted Apple’s motion to compel third party Google to produce the search terms and custodians used to respond to discovery requests and ordered the parties to “meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.”

Plaintiff Granted Access to Defendant’s Database.  In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

Yet Another Request for Facebook Data Denied.  In Potts v. Dollar Tree Stores, Inc., Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

Stored Communications Act Limits Production of Google Emails.  In Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., California Magistrate Judge Paul S. Grewal granted much of the defendant’s motion to quash subpoena of Google for electronic communications sent or received by certain Gmail accounts allegedly used by employees of the defendant because most of the request violated the terms of the Stored Communications Act.

Another Social Media Request Denied as a “Carte Blanche” Request.  In Keller v. National Farmers Union Property & Casualty Co., the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests. While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

EDISCOVERY COST REIMBURSEMENT

As usual, eDiscovery cost reimbursement was a “mixed bag” as the cases where the prevailing party was awarded reimbursement of eDiscovery costs and the cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted) was about even.  Here are six cases, including one where the losing plaintiff was ordered to pay $2.8 million for predictive coding of one million documents(!):

Cost-Shifting Inappropriate when Data is Kept in an Accessible Format.  In Novick v. AXA Network, New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

Apple Wins Case, But Loses its Bid to Have Most of its Costs Covered.  In Ancora Technologies, Inc. v. Apple, Inc., California District Judge Yvonne Gonzalez Rogers granted in part and denied in part Ancora’s Motion for Review of Clerks’ Order on the Bill of Costs of prevailing party Apple, reducing the awarded amount from $111,158.23 down to $20,875.48, including disallowing over $71,000 in storage and hosting costs.

Another Case where Reimbursement of eDiscovery Costs are Denied.  In The Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., when deciding which costs are taxable, the Fourth Circuit chose to follow the Third Circuit’s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., which read 28 U.S.C. § 1920(4) narrowly. Specifically, the court approved taxation of file conversion and transferring files onto CDs as “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case” but no other tasks related to electronically stored information (ESI).

In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to Plaintiff.  In United States ex rel. Becker v. Tools & Metals, Inc., a qui tam False Claims Act litigation, the plaintiffs sought, and the court awarded, costs for, among other things, uploading ESI, creating a Relativity index, and processing data over the objection that expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client.” The court also approved electronic hosting costs, rejecting a defendant’s claim that “reasonableness is determined based on the number of documents used in the litigation.” However, the court refused to award costs for project management and for extracting data from hard drives where the plaintiff could have used better means to conduct a “targeted extraction of information.”

Court Says Scanning Documents to TIFF and Loading into Database is Taxable.  In Amana Society, Inc. v. Excel Engineering, Inc., Iowa District Judge Linda R. Reade found that “scanning [to TIFF format] for Summation purposes qualifies as ‘making copies of materials’ and that these costs are recoverable”.

Must Losing Plaintiff Pay Defendant $2.8 Million for Predictive Coding of One Million Documents? Court Says Yes.  In Gabriel Technologies Corp. v. Qualcomm Inc., District Judge Anthony J. Battaglia awarded the defendant over $12.4 million in attorneys’ fees to be paid by the losing plaintiff in the case. The amount included over $2.8 million for “computer-assisted, algorithm-driven document review” and nearly $392,000 for contract attorneys to review documents identified by the algorithm as responsive.

We’re just getting started!  Tomorrow, we will cover cases related to production format disputes, search disputes and technology assisted review.  Stay tuned!

So, what do you think?  Did you miss any of these?  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.

Split Decision between Plaintiff and Defendant Regarding Search Terms – eDiscovery Case Law
 

In Federal Deposit Insurance Corp. v. Giannoulias, No. 12 C 1665, 2013 U.S. Dist. (N.D. III Oct. 23, 2013), Illinois District Judge John F. Grady resolved several motions regarding discovery proceedings in a $114 million lawsuit. Two of the motions concerned search terms for documents and electronically stored information (ESI), in which the plaintiff opposed the defendants’ request for six additional terms to be included in retrieving discovery documents. The court ruled that four additional search terms would be added, while two would be excluded.

This discovery dispute arose in a lawsuit filed by the Federal Deposit Insurance Corp. (FDIC) as a receiver for Broadway Bank, which alleges that several former officers and directors of the now-closed bank had “negligently approved” 20 commercial real estate loans, resulting in losses to the FDIC of $114 million. During the first phase of discovery, the defendants had served 242 requests for production, and in response the plaintiff produced 500,000 pages of documents that pertained to the loans in question.

The dispute occurred during the second phase of discovery concerning the ESI, which in this case consists of mostly emails. The plaintiff and defendant had cooperatively generated a list of around 250 unique search terms, which the plaintiff applied to the ESI and produced approximately 150,000 hits. The defendant then requested that six further search terms be included. Combined, the six terms produced around 16,800 additional hits.

The plaintiff disagreed with the addition of the search terms and both parties failed to reach an agreement regarding what, specifically, should be done with the data resulting from the finalized ESI search terms. A proposal from the defendants requested that the plaintiff be required to review the filtered ESI to determine which materials were responsive to the defendants’ request, and also that the plaintiff organize and label the production of filtered results.

However, the plaintiff contended that the proposed ESI Protocol would be “unduly burdensome,” and instead proposed to provide a database in Relativity to contain all documents generated by the finalized search terms. The defendants would then be allowed to search and review the database, identify the documents of interest, and subject the chosen documents to a review by the plaintiff for privilege before being furnished with any non-privileged documents.

Judge Grady’s ruling split the additional six search terms in question, allowing four specific and relevant terms to be added to the discovery, and disallowing two general terms: “capitalized” and “capitalization.” This decision was based on the nature of the plaintiff’s business, and the view that “the connection between the terms ‘capitalized’ and ‘capitalization’ and the complaint’s core negligence allegations is tenuous, and the likelihood of entirely irrelevant hits appears high.”

With regards to responsiveness review and organization of document production, the court ruled that while the plaintiff must filter the discovery documents according to the agreed-upon search terms by conducting “a diligent search, which involves developing a reasonably comprehensive search strategy,” the plaintiff is not obligated to “examine every scrap of paper in its potentially voluminous files” to comply with discovery obligations. Further, the court ruled in favor of the plaintiff toward organizing and categorizing relevant ESI according to the numerous discovery requests by the defendants, agreeing that such a process would “impose a substantial burden” on the plaintiff.

So, what do you think?  Is the plaintiff meeting discovery obligations without a full responsiveness review? Should all of the requested search terms have been added? 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.

Six eDiscovery Predictions for 2014, Part Two – eDiscovery Trends

It’s that time of year, where people make predictions for the coming year for all sorts of things, including electronic discovery trends for the coming year.  Friday, we covered my first three eDiscovery predictions for 2014.  Here are the remaining three predictions.

Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.

According to the 2013 survey entitled Security Snapshots: Threats and Opportunities that was conducted by the ABA’s Legal Technology Resource Center (available to members here), “Fully 70% of large firm respondents reported that they didn’t know if their firm had experienced a security breach”.  15% of survey respondents had experienced a security breach.

With notable security breaches happening at major corporations like Target, who recently provided an update to their holiday data breach issue that “the stolen information includes names, mailing addresses, phone numbers or email addresses for up to 70 million individuals”, and at our own Federal government, data security is becoming a major priority for everybody.

Law firms are no different.  As The American Lawyer’s 18th annual survey of law technology noted, eighty-six percent of respondents – technology directors and CTOs from 87 Am Law 200 firms – say they are more concerned about security threats now than they were two years ago.  To address the threat, law firms will have to be prepared to beef up their security infrastructure, either internally or via virtual resources.

Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.

Speaking of virtual resources, it is becoming more difficult for law firms, especially small to medium sized firms, to keep up and compete.  Many small to mid-sized firms lack the project management expertise, the core competency, the infrastructure and the personnel in house to provide the full range of services that clients are demanding, especially for litigation support and discovery services.

Not only that, but maybe it’s not such a good idea for firms to handle all of their litigation support work in house?  “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”  Collection, forensic analysis, processing, database creation and other related tasks are highly technical, nonlegal tasks that are the core competency of eDiscovery vendors, not law firms.  Through the use of virtual resources on a continual basis, “you can leverage your mass buying power and negotiate a low rate for all of your clients”.

Those aren’t my words, they’re the words of eDiscovery thought leader Ralph Losey (a little over a year ago) talking about his own firm, Jackson Lewis, and their decision to outsource their litigation support work.  If a firm like Jackson Lewis decides it’s best to make use of dedicated virtual resources, maybe it makes sense for your firm?  Regardless, I expect that more firms will be forced to outsource and leverage virtual resources to compete with the big firms and the small to medium sized firms that already outsource.

Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.

When we started eDiscovery Daily three years ago, some of my friends questioned whether there would be enough topics to justify a daily blog about eDiscovery.  Not only have there been enough topics, we’ve had to choose which topics to cover regularly.  There is plenty of information out there regarding eDiscovery trends and best practices, not just from this blog, but numerous other sources as well.

And, there are numerous industry thought leaders who have spent considerable efforts to educate attorneys on eDiscovery basic concepts and best practices.  People like Craig Ball, Ralph Losey, George Socha and Tom Gelbmann, Tom O’Connor and others have spearheaded initiatives to help attorneys (and law students aspiring to become attorneys) to understand eDiscovery better (here is a link to last year’s thought leader interviews if you want to check out their thoughts about education).

Unfortunately, many of the attorneys that I talk to still understand very little about eDiscovery.  Most of those don’t think there is a need to learn about it – often, they’ll tell me that they “don’t have big enough cases” to need to know about it.  I’ve heard other industry professionals discuss similar experiences about the attorneys they meet.  So, while we’ve done a lot in the industry to educate lawyers about eDiscovery, it appears we still have a long way to go.

So, what do you think?  Do you have any eDiscovery predictions for 2014?  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.