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Electronic Discovery

ARMA/Forrester Survey: Only One in Eight Records Managers Trusts Their ESI – eDiscovery Trends

According to the Forrester Research and ARMA International Records Management Online Survey, Q3 2012, only 12 percent of records managers are “very confident” that, if challenged, their organization could demonstrate that their electronically stored information (ESI) is “accurate, accessible, complete and trustworthy”.  That’s less than one in eight.

The report, co-authored by ARMA and Forrester Research, contains the results of a survey of 354 records managers.

Some of the less than optimistic comments from the report include: “Records managers report abysmally low e-discovery confidence…This bleak data point represents an even lower e-discovery confidence rate than captured in past surveys…[S]urvey data show that integrated legal hold – a critical component needed for successful defensible disposition – is simply missing in organizations.”

And this: “Organizations aren’t sure of the business value or legal obligations to preserve content so they simply continue to accumulate digital debris, slowing down overtaxed systems, adding to storage costs, and posing potential additional litigation and investigation burdens over time.”

Some of the reasons cited as obstacles to improved records management include:

  • Poor systems integration – 74 percent of respondents;
  • Inadequate budget – 73 percent;
  • Lack of experienced staff – 64 percent;
  • Outdated policies or procedures – 55 percent; and
  • Lack of clear leadership – 54 percent.

So, what are organizations doing to address the obstacles?  Here are some indications:

  • 40 percent of survey respondents expect that their organization’s overall records management spending will increase at least 5% from 2012 to 2013;
  • 71 percent currently have implementation plans underway, or plans to implement records management technology within the next year;
  • 81 percent consider an improvement in records management policy consistency an important objective for their organization.

A copy of the report is available here from Forrester Research for $499.

Since, according to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months, you would think organizations would be making greater strides in implementing information governance programs.  Of course, many information governance industry initiatives are still in relative infancy, including the Information Governance Reference Model (IGRM) Project of the Electronic Discovery Reference Model (EDRM), which was started a mere two years ago (click here for information on their newest version).  It appears that organizations still have a long way to go to get their data under control.

So, what do you think?  What, if any, records management obstacles are your organization facing?  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.

Five Reasons to Outsource Litigation Support – eDiscovery Best Practices

When you’re Jackson Lewis and your firm’s national eDiscovery counsel is noted eDiscovery expert and founder of the new Electronic Discovery Best Practices (EDBP.com) (as well as previous thought leader interviewee on this blog) Ralph Losey, it would make sense that you would want to handle all of your litigation support work in house.  Right?  Wrong.

As Losey writes in the Law Technology News article Five Reasons to Outsource Litigation Support, in June, Jackson Lewis “decided to outsource to a vendor all of our nonlegal electronic data discovery work that our litigation support department had been providing to our clients.”  Losey identifies five reasons “[b]ased on our experience” why your organization should consider outsourcing.

  1. Core Competency: Losey asks the question “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.  Losey notes that aside from the outsourcing of document review, the eDiscovery market is not “engaged in the practice of law”.
  2. Complexity: Losey notes that eDiscovery work “is not equivalent to making copies, as some lawyers think, and should not be done in-house, especially when there are so many good companies that specialize in this kind of work.”  Would you go to a general practitioner for heart bypass surgery?  Some tasks are best performed by specialists.
  3. Cost Savings: Keeping a litigation support business staffed with qualified people and current with hardware and software technology is expensive – it also adds considerably to firm overhead.  Losey notes that you “cannot give lawyers yesterday’s technology and expect them to compete.”  Would you give your attorneys out of date books on state and federal statutes for practicing law?  He also says “you can leverage your mass buying power and negotiate a low rate for all of your clients” that use your selected vendor.  Frankly, I’m surprised more firms don’t consider this – it’s a win-win for all as many vendors are willing to discount services for continual business.
  4. Risk: Losey states that “[m]istakes can happen, especially when a firm is operating outside of its core competency” and that firms often build the risk into their rates, which can penalize clients who don’t use the nonlegal services.  Again, giving the work to the organization best qualified to perform the work – the eDiscovery vendor – only makes sense.
  5. Ethics: The Comment to ABA Model Rule of Professional Responsibility 5.7 says, “When a lawyer performs law-related services or controls an organization that does so, there exists the potential for ethical problems.”  Just because “everyone does it” doesn’t make it right.  Losey notes that some ethical issues can be raised by outsourcing as well, but that’s true of any profession and that Jackson Lewis uses “whatever vendor the client wants” with direct billing from vendor to client.  Most vendors like that arrangement as well, it streamlines on time payment of invoices to the vendor for work performed.

So, what do you think?  How does your organization handle litigation support?  Do you outsource it or do you handle it in house?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded – eDiscovery Case Law

In Carrillo v. Schneider Logistics, Inc. (C.D. Cal. Oct. 5, 2012), California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”.  The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Sequence of Events of Defendant’s Discovery Failures

In this class action wage and hour case against the defendants (a Wal-Mart provider), the plaintiffs filed a Motion to Compel responses to the first set of requests for production of documents.  Here’s a sequence of events that led to the filing of the motion (all dates in 2012):

  • On February 1, plaintiffs propounded their First Set of Requests for Production of Documents to the defendant;
  • The defendant provided its initial responses on March 12 and supplemental responses on April 4;
  • The plaintiffs, believing that the defendant’s document production was incomplete, began a series of meet and confers with the defendant, and expressed concern that the defendant had not produced all responsive non-privileged documents;
  • On May 31, the plaintiffs filed a Motion to Compel regarding the defendant’s failure to produce documents relating to Wal-Mart and their alleged failure to conduct a proper search and produce responsive documents;
  • After the Court ordered the parties to further meet and confer, the parties resolved their dispute and submitted a proposed order, which resulted in the Court ordering the defendant to supplement its responses to the requests for production of documents and produce responsive documents, including those relating to Wal-Mart. The defendant was also ordered to produce a custodian of records and person most knowledgeable regarding Schneider’s document retention policies;
  • Following the Court’s Order, the defendant produced an additional 23,000 documents, many of which related to categories of documents the defendant previously claimed did not exist;
  • The defendant also designated two employees to address the defendant’s retention policies and its efforts to search for responsive documents. When these witnesses appeared for their depositions, however, they were unable to answer many basic questions regarding the defendant’s document retention policies and the defendant’s search for responsive documents;
  • On July 10, the plaintiffs deposed an area manager for the defendant who testified that she had deleted various emails, including reports, continued to delete documents up to the date of her deposition, and that she had never received an instruction advising her not to delete such emails;

This led the plaintiffs to file their Motion to Compel on August 23, as they identified a “substantial number of emails and surveillance videotapes which had not been produced”.

Judge Bristow’s Ruling

Noting that the “record reflects – at best – a haphazard search for records”, Judge Bristow stated that the defendant had “disregarded its obligation to conduct a reasonably diligent search for responsive documents, including, as explained below, electronically stored information.”  Noting that at least 20 employees of the defendant regularly used “@wal-mart.com” email accounts for conducting business, the judge also noted that the defendant had still not produced any emails from those accounts and discounted the defendant’s contention that it had “no control” over those documents since the defendant’s employees used the Wal-Mart email address as their primary work email account.  The judge also ruled that the defendant had withheld surveillance videotapes and that it had not taken adequate steps to preserve documents.

As a result, the defendant was ordered to retain an outside vendor to collect ESI and email correspondence within 45 days and produce all responsive videotapes within 10 days.  The plaintiff was given 11 days to file a brief detailing their claim for attorneys’ fees and costs, with the defendant having two weeks to respond regarding the reasonableness of the stated costs.  Judge Bristow did deny the plaintiff’s request for other sanctions without prejudice as “premature”.

So, what do you think?  Have you seen other cases where parties were ordered to retain an outside vendor?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

As was the case in Mailhoit v. Home Depot previously, Ohio Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012) that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Background on Defendant’s Request

In this employment discrimination action where the plaintiff alleged that male supervisors, senior youth leaders, and coworkers sexually harassed her, the defendant filed a Motion to Compel in August to compel the plaintiff to give them her user names and passwords for each of the social media sites she uses.  The defendant contended that information on the plaintiff’s social media sites “may be relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional state”, indicating their belief that the plaintiff “is not currently impaired by serious emotional distress and is enjoying life”.

The plaintiff contended that the defendant’s discovery request was “overbroad and unduly burdensome” and that the defendant had “offered no evidence or other reason to back up” their speculation that there might be relevant information in the private sections of her social media sites.  The defendant countered that the plaintiff testified as to several impacts of the alleged sexual harassment and that she cannot regularly update her Facebook account, yet her Facebook public pages contained evidence that the plaintiff still regularly updates her account.

Judge Abel’s Ruling

Judge Abel acknowledged that “[r]elevant information in the private section of a social media account is discoverable”, but that “a litigant has no right to serve overbroad discovery requests that seek irrelevant information”.  Comparing the request of electronic social media data to that of hard copy documents, Judge Abel stated:

“The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files. Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”

Judge Abel did note that the plaintiff “remains under an obligation to preserve all the information” in her social media accounts, so the defendants would presumably be able to access that information through requests for specific relevant information.

So, what do you think?  How does this case compare to other cases (such as these three cases) where user names and passwords to social media sites were 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.

Does This Scare You? – eDiscovery Horrors!

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so every year we try to “scare” you in a different way instead.  Does this scare you?

The defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

What about this?

Even though the litigation hold letter from April 2008 was sent to the primary custodians, at least one principal was determined to have actively deleted relevant emails. Additionally, the plaintiffs made no effort to suspend the automatic destruction policy of emails, so emails that were deleted could not be recovered.  Ultimately, the court found that 9 of 14 key custodians had deleted relevant documents. After the defendants raised its spoliation concerns with the court, the plaintiffs continued to delete relevant information, including decommissioning and discarding an email server without preserving any of the relevant ESI.  As a result, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Or this?

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.

How about this?

There “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”

Or maybe this?

If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Scary, huh?  If the possibility of sanctions, exponential data growth and judges ordering parties to perform predictive coding keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

Those of you who are really mortified that the next post in Jane Gennarelli’s “Litigation 101” series won’t run this week, fear not – it will run tomorrow.

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.

Russell Taber: eDiscovery in Tennessee – eDiscovery Trends

We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI).  But, not all cases are Federal jurisdiction cases.  Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery.  One of those states is Tennessee.  Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.

Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III.  Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee.  His practice focuses on business litigation.  He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery).  Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University.  I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.

Why did you decide to write the book and what are you hoping for readers to learn from reading it?

First of all, thank you for the eDiscovery Daily Blog.  I’ve been a subscriber for some time and have benefitted from its insights.  Thank you also for taking the time for this interview.

I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues.  It begins with the premise: “The era of paper discovery in Tennessee is over.”  Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true.   Virtually all information is created electronically.  EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small.  Even so, eDiscovery can be very challenging, and the stakes can be high.  Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee.   Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.

As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009?  How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?

That’s right.   The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects.   For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue.  The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.

Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court.  Under the Tennessee rule, a judge first determines whether the ESI is subject to production.  If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.

Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?

Yes.  While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose.  In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.

Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc.  The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party.  The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.

Are there any plans to amend Tennessee rules for eDiscovery in the near future?  What do you expect to see in the eDiscovery landscape within the state over the next few years?

I’m not aware of any plans to amend the Tennessee rules for eDiscovery.  A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules).  I think there is a need for more uniformity in the eDiscovery rules in Tennessee.

We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery.  Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees.  These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.

For more information about the book, including the link on Amazon.com to purchase it, click here.

Thanks, Russell, 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.

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law

As reported in Ralph Losey’s e-Discovery Team® blog, Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012) – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

As Ralph notes, this “appears to be the first time a judge has required both sides of a dispute to use predictive coding when neither has asked for it. It may also be the first time a judge has ordered parties to use the same vendor.”  Vice Chancellor Laster’s instruction was as follows:

“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding.  I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor.  Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information.  If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.  The problem is that these types of indemnification claims can generate a huge amount of documents.  That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”

Ralph notes that there “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”  It will be interesting to see if either, or both party, proceeds to object and attempt to “show cause” as to why they shouldn’t use predictive coding.

So, what do you think?  Is this an isolated case or the start of a trend?  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.

Proportionality Rules! (and other proportionality sources) – eDiscovery Best Practices

I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules!  Here are the highlights.

As the author notes, Rules 1, 26 and 37 each provide verbiage addressing proportionality, as follows:

  • Rule 1 states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • In Rule 26(a)(1) disclosures, a party must describe  by category and location all electronically stored information in the party’s possession, custody or control  “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”
  • Rule 26(f) mandates that the parties confer and discuss “any issues about preserving discoverable information; and develop a proposed discovery plan” that indicates the “parties’ views and proposals” concerning, inter alia, issues relating to the disclosure or discovery of ESI, form of production and assertions of privilege.
  • Rule 26(g) requires certification, based on a reasonable inquiry, that Rule 26(a) disclosures were complete and that discovery requests, responses and objections are proper, necessary and reasonable given the law, nature and stage of the case.
  • Rule 37(f) authorizes sanctions for failure to make disclosures or cooperate in discovery, including for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”

The author also recommends two publications from the The Sedona Conference®: Its Cooperation Proclamation and its Commentary on Proportionality (previously covered on this blog here and here), as well as this proportionality test white paper from the American Bar Association.  If you want case law dealing with proportionality, take a look here, here, here, here and here.  And, that’s just this year!

With 90% of the data in the world having been created in the last two years, managing eDiscovery of all that data continues to get more and more expensive.  Key to keeping those costs in check is the ability to promote proportionality, especially through the Rule 26(f) meet and confer with opposing counsel, and with the court (especially when the parties can’t agree on conducting eDiscovery more cost effectively).  The sources listed in this article provide excellent ammunition to advocate proportionality in eDiscovery with opposing counsel as well as with the court.

So, what do you think?  Have you disputed eDiscovery scope with opposing counsel in your cases?   If so, how have you addressed those disputes?  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 Announces Several Updates at Mid-Year Meeting – eDiscovery Trends

Last week, the Electronic Discovery Reference Model (EDRM) conducted its mid-year meeting to enable the working groups to meet and further accomplishments in each of the teams for the year.  Having attended several of these meetings in the past, I’ve always found them to usually yield significant progress within the working groups, as well as providing a great opportunity for eDiscovery professionals to get together and talk shop.  Based on the results of the meeting, EDRM issued an announcement with updates from several of their more active projects.

Here are the updates:

  • Data Set: The Data Set project announced the launch of its new file upload utility. “The upload utility will allow us to develop a modern data set that more accurately represents the type of files that are commonly encountered in data processing,” said Eric Robi of Elluma Discovery, co-chair of the project with Michael Lappin of NUIX. The Data Set project also announced a soon-to-be-published “million file dataset” and an upcoming redacted version of the Enron data set, previously described on this blog here.
  • Information Governance Reference Model (IGRM): The IGRM team announced that its updated model (IGRM v3) was recently published and presented at ARMA International’s 57th Annual Conference & Expo and the IAPP Privacy Academy 2012. As discussed on this blog just a couple of weeks ago, the updated version adds privacy and security as key stakeholders in the model.
  • Jobs: The Jobs project continued development of the EDRM RACI (responsible, accountable, consulted, informed) Matrix, a tool designed to help hiring managers better understand the responsibilities associated with common e-discovery roles. RACI maps responsibilities to the EDRM framework so e-discovery duties associated can be assigned to the appropriate parties.
  • Metrics: The Metrics project team refined the EDRM Metrics database, an anonymous set of e-discovery processing metrics derived from actual matters, which will include a CSV upload function to make it easier for vendors and law firms to anonymously submit data to the system.  Having worked on the early stages of this project, my “hats off” to the team for the additional accomplishments.
  • Search: The Search group announced that its EDRM Computer Assisted Review Reference Model (CARRM) soon will be available for public comment. The goal of CARRM is to demystify the predictive coding process and to allow for a common communication platform between vendors and end-users at each phase of the CAR process and it will be interesting to see the document that emerges from these efforts.

EDRM meets in person twice a year, in May for the annual meeting and October for the mid-year meeting, with regular working group phone calls scheduled throughout the year to keep the projects progressing.  The next in person meeting is next year’s annual meeting, currently scheduled for May 7 thru 9, 2013.  For more information about EDRM, click here.  For information on joining EDRM, including fee information for participation, click here.

So, what do you think?  Have you been following the activity of EDRM?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Government Document Productions Can Be Like Water Torture – eDiscovery Case Law

In Botell v. United States, 2012 U.S. Dist. (E.D. Cal. Sept. 18, 2012), Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order.  The US was also still required to produce the documents, whether they planned to use them or not.  Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

In this wrongful death and personal injury action at Lassen Volcanic National Park when a mortared rock wall gave way killing one child and injuring another, the US Government produced over 7,000 pages of documents, yet, it was noted that “there is a glaring lack of production of emails from defendant’s agents and employees” with emails having only been produced from one custodian.  As five other custodians were referenced in the produced emails, the plaintiffs contended that emails should have been produced from them as well.  With regard to the back up of emails, one of the defendant declarations described the backup policy as follows: “[b]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.”

Judge Hollows ordered the defendants to provide a declaration describing “searches conducted to locate physical and electronic copies of emails” responsive to production requests, noting the declaration “shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.”

Summarizing the production issue in his order, Judge Hollows noted as follows:

“At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents.”

As a result, Judge Hollows issued the preclusion order, with the possibility of more sanctions to come.

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

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