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Electronic Discovery

ILTACON 2019 Preview Edition: eDiscovery Trends

Hard to believe, but we’re less than a week away from ILTACON 2019, being held this year at the Walt Disney World Swan and Dolphin Resort in sunny (and hot and humid) Orlando!  Yep, we were in NYC in winter for Legaltech and now we’ll be in Orlando in summer for ILTACON!  Maybe one year, we could flip that?  Just sayin’.  The conference kicks off with some networking activities on Sunday and starts in earnest with sessions Monday through Thursday.  As usual, some of those sessions look interesting (especially for litigation support professionals), so let’s take a look at some of the more promising sessions to attend next week.

The Exhibit Hall will also be open for four days, starting with the annual opening reception: A Whole New World of Possibilities-A Journey through Classic TV.  CloudNine will be exhibiting again at this year’s show at booth #624.  I don’t want to give away how we will commemorate the opening reception, except to say that we will be “boldly going” there.  :o)  We’ll also be showcasing several new developments with our products and should be announcing as soon as today what those will be.  If you are attending ILTACON this year and would like to schedule a meeting with us, it’s not too late to go to this page to request a demo and indicate that you want to meet at ILTACON 2019!

Notable sessions for this year’s conference:

Monday

Pitch Your Litigation Support Challenges, 3:30 PM – 5:00 PM ET: This year’s show has plenty of good stuff for litigation support professionals and it starts with this session where you can “[s]ubmit your most difficult Litigation Support Challenges to our panel of experts and they’ll resolve them magically before your very eyes utilizing years of expertise and problem-solving skills.”  Or “[a]t least they’ll try.”  With experienced professionals like Thomas Morrissey, Stephen Dooley, Duane Lites, Chris Haley and Catherine McPherson, it should be an informative and entertaining session.

Tuesday

Data Privacy – Everyone’s Getting In On It – Privacy From Europe to California and Beyond, 1:30 PM – 2:30 PM ET: There’s certainly no more timely topic than data privacy and this session plans to discuss what you have to do to prepare for the future, including what has been effective in the past.  So, if you’re concerned about data privacy, this would be a good session to check out.

Machine Learning and AI in Action (AI Series, Session 2), 3:30 PM – 5:00 PM ET: This session promises to “Demystify Machine Learning and AI by walking through a real-world example of a working model…from prototyping to production”.  If it really does that, then who wouldn’t want to check that out?

Wednesday

Litigation Support Day, 9:00 AM – 4:15 PM ET: Yep, that’s right – a whole day devoted to topics related to litigation support.  It’s ILTACON’s “new concept in educational programming”, featuring “a DAY of SPARK (Short, Provocative, Action-oriented, Realistic, and Knowledgeable) talks by leaders in the industry”.  It’s organized by David Hasman of Bricker & Eckler, David Horrigan of Relativity, and Philip Weldon of Fried Frank and the day’s sessions will be moderated by David Horrigan.  The program will feature presentations on everything from cloud transformation to career development and job interview techniques and end with a keynote presentation by Justice Tanya Kennedy, New York State Supreme Court, New York County.  Check out the list of speakers for the day’s event:

Joy Heath Rush, Wendy L. King, Craig Carpenter, David Horrigan, Craig Ball, Dera J. Nevin, Jared Coseglia, David Greetham, Mary Mack, Patrick Joseph Burke, Chris Haley, Scott Milner, Nicole MacCallum, Sara Skeens, Steven Berrent, Ari Kaplan, David Bryant Isbell, Debbie Reynolds, Rob Robinson, Meagan Sauve, Antonia Karlan, Kelly Friedman, Bryant Lee, Tanya R. Kennedy, Marcin Wojtczak, Kenya Dixon, Rosemary Kuperberg, Amanda Fennell, Mike Gamson.

And me!  I will be discussing Legal trends with David and we will be discussing some of the most interesting and notable cases so far this year (around 9:30am).  For those who attend, I’m planning a special blog post to save you a lot of note taking.

Thursday

10 Litigation Support Tips in 60 Minutes, 9:00 AM – 10:00 AM ET: Sensing a theme yet?  Not only will they discuss several useful tips, they also promise to provide a handout of those tips in the session.

Choosing a Predictive Coding Approach – “Predictive Coding For Dummies”, 11:30 AM – 12:30 PM ET: OK, I know, I’m in this one too (as moderator), but that’s not the only reason I’m recommending it.  For starters, it’s the only session geared specifically to predictive coding at this year’s conference.  Also, don’t be fooled by the “for Dummies” title, we plan to tailor the discussion to the experience level of the attendees and are planning to discuss some interesting aspects of using predictive coding, including how to make a case for it and how to get started.  With panelists like Doug Matthews (Partner Vorys, Sater, Seymour and Pease LLP), Catherine A. Casey (Chief Innovation Officer DISCO) Lia Majid (CEO and Founder, Acorn Legal Solutions) and Julian Ackert (Managing Director iDiscovery Solutions, Inc.), you’d be a “dummy” to miss it!

I will provide a complete list of eDiscovery, litigation support, information governance and cybersecurity sessions during each day of the conference next week.  Stay tuned!

So, what do you think?  Do you plan to attend ILTACON this year?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

What is the Future of the Legal Technology Conference?

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Thinking Like a Millennial: How Millennials are Changing Discovery.  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled What is the Future of the Legal Technology Conference? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into three parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I was recently asked to write about the upcoming ILTACON19 conference and you can see my full comments here. But that discussion leads naturally to the larger question about the current state of legal tech conferences.

We know for example that Legaltech® quietly discontinued their West Coast event several years ago and that their NYC event has had vendor presence drop dramatically over that same time frame.  At the same time, events which always proudly billed themselves as being free of vendor participation, notably the ABA TechShow and ILTACON, now have numerous vendor speakers and vendor sponsored agenda events.

What exactly is going on here?  A number of renowned legal commentators have been asking the same question all year.  In this series, I’ll take a look at some of their observations and provide some of my own and analysis of legal tech conferences out there today.

We’ll publish Part 2 – Legal Tech Conference Observations from Other Commentators – on Wednesday.

So, what do you think?  Do you attend legal tech conferences and do you think attendance has proven valuable to you over the years?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Case of Judicial “Friending”, But with a Different Result: eDiscovery Case Law

This is the second case we’ve seen recently regarding judges and Facebook “friendship” with other parties – here’s the other one where the case was the reversed and remanded for further proceedings before a different judge due to the judge’s Facebook “friendship” with one of the parties.  This time, it’s the judge’s Facebook friendship with one of the attorneys in the case.  This one had a different outcome.

In the Florida Bar Journal web site (Face-Off on Facebook: Judges and Lawyers as Social Media “Friends” in a Post-Herssein World, written by Ralph Artigliere, William F. Hamilton, David Hazouri, Jan L. Jacobowitz, and Meenu Sasser), the authors ask the question: “Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys?”

The Florida Supreme Court recently answered the question in the negative in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, Case No. SC17-1848, (Fla. Nov. 15, 2018), when it held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification.”

The decision brings Florida in line with the majority view in other states that “have adopted an attitude of, ‘it’s fine for judges to be on social media, but proceed with caution.’”

The authors do a great job discussing the scope of the decision, traditional standards for reasonable basis for a motion to disqualify, the explosion of social media, aspects of judicial disqualification historically and guidance for lawyers and judges after the decision, among other topics.  Instead of recounting them here, I encourage you to read the article.

When we covered the other case – In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019) (technically after the case written about in the Florida Bar Journal site covered in this post) – in our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), I asked Tom O’Connor if judges should ever accept social media friend requests from litigants.  Of course, he gave the answer I would have expected: “it depends”.  In the case we covered, the judge deciding the motion accepted one of the party’s “friend” request on Facebook – after the parties had submitted their written arguments – and he ultimately ruled in her favor.  Even though the Judge didn’t “like” or comment on any of the party’s posts or reply to any of her comments on his posts, when he subsequently granted the party’s modification motion.  The Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.  Clearly, timing played a part in that ruling.  So, should judges be friends with parties or attorneys appearing in their cases?  It depends.  :o)

So, what do you think?  Should judges accepting friend requests from litigants or attorneys disqualify them from ruling in their cases?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

When Preparing Production Sets, Quality is Job 1: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on December 2, 2011 – when eDiscovery Daily was a little more than a year old and continues our two-part series from two Thursdays ago.  Several updates have been applied, so take note!  Enjoy!

OK, I admit I stole the “Quality is Job 1” line from an old Ford commercial… ;o)

Last time, we talked about addressing parameters of production up front to ensure that those requirements make sense and avoid foreseeable production problems well before the production step.  Today, we will talk about quality control (QC) mechanisms to make sure that the production is complete and accurate.

Quality Control Checks

There are a number of checks that can and should be performed on the production set, prior to producing it to the requesting party.  Here are some examples:

  • File Counts: The most obvious check you can perform is to ensure that the count of files matches the count of documents or pages you have identified to be produced. However, depending on the production, there may be multiple file counts to check:
    • Image Files: If you have agreed with opposing counsel to produce images for all documents, then there will be a count of images to confirm. If you’re producing multi-page image files (typically, PDF or TIFF), the count of images should match the count of documents being produced.  If you’re producing single-page image files (usually TIFF), then the count should match the number of pages being produced.  One notable exception that has become common since this post was originally written is that many image productions these days still often include native productions for Excel and (in some cases) PowerPoint files.  Excel files are often not formatted for printing, so they don’t print well and many parties want to see the underlying formulas, so they get produced natively.  Even in that case, a placeholder image is still produced for each Excel file, so the number of images should match the number of documents or pages (if producing single page text files, count each Excel placeholder image as one page).
    • Text Files: When producing image files, you’ll also usually be producing searchable text files, which will generally be multi-page and should match the number of documents being produced. If there are files with no text in them, you typically still produce a placeholder to indicate as such so that opposing counsel is aware that there was no text to produce.
    • Native Files: Native files (if produced) are of course at the document level, so if you are producing native files, you would want to confirm the correct count for native files you are producing. This goes for partial native file productions as well, so if you are producing images with native production for Excel files, you’ll want to make sure the total number of native files matches the number of Excel files you were expecting to produce.
    • Subset Counts: If the documents are being produced in a certain organized manner (e.g., a folder for each custodian), it’s a good idea to identify subset counts at those levels and verify those counts as well. Not only does this provide an extra level of count verification, but it helps to find the problem more quickly if the overall count is off.
    • Verify Counts on Final Production Location: If you’re verifying counts of the production set before copying it to the final production location (which, these days, is either FTP location or hard drive), you will need to verify those counts again after copying to ensure that all files made it to the final location.
  • Sampling of Results: Unless the production is very small, it’s impractical to open every last file to be produced to confirm that it is correct. However, you can still consider employing accepted statistical sampling procedures (such as those described here and here for searching) to identify an appropriate sample size and randomly select that sample to open and confirm that the correct files were selected, HASH values of produced native files match the original source versions of those files, images are clear and text files contain the correct text.
  • Redacted Files: If any redacted files are being produced, each of these (not just a sample subset) should be reviewed to confirm that redactions of privileged or confidential information made it to the produced image, text and native file. Many review platforms overlay redactions which have to be burned into the images at production time, so it’s easy for mistakes in the process to cause those redactions to be left out, or the redactions may not be carried forward to the text or native files.  It’s very important to check them all.
  • Inclusion of Logs: Depending on agreed upon parameters, the production may include log files such as:
    • Production Log: Listing of all files being produced, with an agreed upon list of metadata fields to identify those files.
    • Privilege Log: Listing of responsive files not being produced because of privilege (and possibly confidentiality as well). This listing often identifies the privilege being asserted for each file in the privilege log.
    • Exception Log: Listing of files that could not be produced because of a problem with the file. Producing these logs is less common, but could be necessary if questions come up about the comprehensiveness of the production.

Each production will have different parameters, so the QC requirements will differ, so there are examples, but not necessarily a comprehensive list of all potential QC checks to perform.

So, what do you think?  Can you think of other appropriate QC checks to perform on production sets?  If so, please share them!  As well as any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: eDiscovery Case News

If you keep track of Hollywood news, you probably already know this story.  But, as David Horrigan discussed in an article last week, you may not know all the details or what it might mean for future cases.

In Legaltech® News (Commonwealth v. Fowler: What the Kevin Spacey Cases Mean for E-Discovery and the Law), David discusses the case Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, stem from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler).

In allegations that made headlines around the world two years later, an 18-year-old employee of a Nantucket restaurant claimed that, in the summer of 2016, Spacey plied him with alcohol and groped him at the restaurant. Of course, Spacey’s lawyers had a different take, arguing the encounter was a “mutual and consensual flirtation” and that the employee had told Spacey he was 23.  And, also of course, Spacey’s lawyers demanded discovery of the employee’s mobile phone, seeking text, video and Snapchat data from the date of the incident to the date of the discovery request.

Text messages between the employee and his girlfriend – purported to have been sent at the time of the alleged incident – had already been entered into the court record via screenshots. They included descriptions of the alleged incident by the employee and text responses from his girlfriend, including some with multiple emojis.  However, Spacey’s defense counsel argued that some of the text messages had been edited and the employee’s mother, a former Boston television news reporter, admitted that she had deleted some data (which she claimed was unrelated to the alleged incident) from the phone before turning it over to law enforcement.

But, that wasn’t the worst issue related to the phone.  The phone itself disappeared.  Law enforcement notes indicated the mobile phone had been returned to the employee’s family, but the family’s attorney told the court, “My clients do not recall ever receiving the phone.”  And, although the employee’s family said the phone had been backed up, Spacey’s counsel argued that wasn’t good enough and that they were entitled to the phone itself.  When Spacey’s counsel asked the employee whether he knew altering evidence was a crime, the employee invoked his Fifth Amendment protection against self-incrimination, which resulted in the charges being dropped in the criminal case (after the civil case had already been dropped a few days before).  No phone = two cases closed.

In his article, David notes several interesting considerations from the cases, ranging from discovery of mobile devices to the use of emojis to the significance of social media (with a Snapchat video being important in the case as well).  Probably his most notable observation was whether the loss of the phone would have thrown out the evidence in the civil case with amended FRCP Rule 37(e) providing that sanctions were available when evidence “cannot be restored or replaced through additional discovery.”  Those phone backups might have led to a different result in the civil case.

I already noted that in our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), Tom O’Connor and I discussed several cases (including this one, this one and this one) where spoliation and sanctions associated with smartphone ESI were the key issue being addressed.  Chalk up another one.

BTW, speaking of David: As I noted before, I am speaking at ILTACON in a couple of weeks as part of ILTACON’s brand new Litigation Support Day, which features a DAY of SPARK (Short, Provocative, Action-oriented, Realistic, and Knowledgeable) talks by leaders in the industry.  I will be participating in Session One – Litigation Support State of the Union from 9:00-10:30am that day (my talk is slated for approximately 9:35). I will be speaking about legal trends in the industry, with David moderating, so that means recent case law trends that should be interesting.  Do you think mobile device discovery will be one of those trends?  If you’re planning to be at ILTACON, come find out!

So, what do you think?  Would the phone backups have enabled the civil case to continue?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Netflix

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s a Webinar TODAY to Learn about Preserving and Analyzing Smartphone Data: eDiscovery Best Practices

In our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), Tom O’Connor and I discussed several cases (including this one, this one and this one, involving the late musician Prince) where spoliation and sanctions associated with smartphone ESI were the key issue being addressed.  Let’s face it, discoverability of mobile devices has become a standard consideration in litigation these days.  But, how can you ensure you’re properly preserving the ESI on your smartphone and how can you get the most out of the data it contains?  Here’s a webinar TODAY that discusses that very topic!

And, here’s a spoiler alert!  It’s not even a CloudNine webinar.  This webinar is being hosted by ESI Analyst and Chorus Consulting.  Preservation & Analysis of Smartphone Data for Today’s Connected World will be presented at 2pm ET today (1pm CT, 11am PT).  Topics addressed include:

  • How to direct your client to avoid spoliation
  • Requirements to preserve and collect cell phone data
  • When to call a forensic expert
  • Best ways to analyze data from a cell phone:
    • Text/SMS/MMS including media
    • Chat applications
    • Call logs
    • Geolocation
  • Connecting those elements to create a timeline and tell the story

The webinar will be co-presented by:

  • John Myers of Chorus Consulting, who has been a partner with CloudNine for several years and has over 25 years of experience assisting clients in eDiscovery and forensic collection. John testified in this case having to do with the late Jimi Hendrix (which makes two dead rock stars mentioned in this post and ties my personal record, I think).
  • Trent Livingston of ESI Analyst, who has provided consulting and expert testimony regarding data, automation and analytics over a two-decade career and (with his team) has developed the data visualization and investigation technology platform called (oddly enough) ESI Analyst. Trent was one of the speakers at our NineForum TED Talk series at LegalTech this year.

You can register for the webinar here.  Even if you can’t make it today (but still want to check it out), register and you’ll receive a link to the webinar afterward.  If you want to learn some best practices for smartphone data preservation and analysis from two smart guys uniquely qualified to discuss those topics, check it out!

So, what do you think?  How often does your organization have to address mobile device discovery in litigation?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Having the Right Technology is Only One Piece of the Puzzle: eDiscovery Trends

We all get the eDiscovery technology is changing – in large part because the demands of eDiscovery are changing.  Amazingly enough though, it’s not just about the technology – as a recent article discusses, it’s as much about the training on how to use the technology as it is about the capabilities of the technology itself.

In Corporate Counsel (A Journey of Self E-Discovery, written by Frank Ready), the author speaks with several eDiscovery and technology experts regarding the needs and challenges of selecting eDiscovery providers and training on eDiscovery tools.  For example, Debbie Reynolds, data privacy officer at Eimer Stahl, describes the process of evaluating contracts with eDiscovery providers as a pendulum, a process by which every few years firms take a look at their ongoing budgets and expenditures to reevaluate whether or not they would be better served by bringing eDiscovery process in-house.

“About every three years you can kind of reconsider, ‘Are we doing the right thing? Are we looking at the right software? Do we have the right staffing?’” Reynolds says.

Investing in an array of high-powered eDiscovery tech and software is all well and good, but putting it into the hands of an untrained staff is still akin to tossing a set of Porsche keys to someone who slept through the entirety of drivers ed. As David Hasman, litigation support manager at Bricker & Eckler, says, “The reality of it is that if you don’t have talent to drive that technology, that technology is useless.”

“Really, the biggest spend from a client’s perspective when you’re facing litigation is typically the discovery. … You as a lawyer better be able to talk to your client and educate them on the process, why it’s important and the costs associated with it,” explains Joseph Tate, director of eDiscovery and practice advisory services at Cozen O’Connor.

To be sure, corporate legal departments aren’t immune to the whims of foot-dragging folks either. George Socha, co-founder of EDRM and a managing director in BDO’s forensic technology services practice, pointed out that some companies have never had a reason to focus on eDiscovery. Still, a sudden spike in litigation can force their hand.

But necessity does not always translate to enthusiasm, at least in the eyes of some of the companies that Socha has spoken to about starting down the eDiscovery path. “Their response is, ‘You’ve got to be kidding? This is what’s going on? This is insane,’” Socha says.

But, as we have all heard before, insanity is doing the same thing over and over again, hoping for a different result.  As Tom O’Connor and I discussed in our April webcast (Discovery Isn’t Just for Litigation Anymore), growing data privacy concerns with the General Data Privacy Regulation (GDPR) and California Consumer Privacy Act (CCPA) and increase in harassment claims with #MeToo and rising corporate malfeasance concerns have led to a lot of potential compliance and investigations needs with regard to discovery that organizations have today whether or not they ever lead to litigation.  In short, most organizations are likely to have some need today regarding eDiscovery, even if they never have any litigation.  As a result, more organizations than ever will not only have a need for eDiscovery technology, they will also have a need for training: training to not only understand how to get the most out of the technology, but also training on best practices regarding eDiscovery in general.  This means an increased emphasis on certifications like the Certified E-Discovery Specialist (CEDS) Certification from ACEDS, as well as trainings and certifications on the eDiscovery technology itself.

That’s one of the many things great about our industry – there’s always a lot of new things to learn!

So, what do you think?  How does your organization address technology and best practice training needs?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Sanctions Plaintiff for Spoliation of Facebook Account: eDiscovery Case Law

Shark Week on the Discovery Channel concludes this weekend, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) concludes as well (don’t be sad, it will be back next year!).  During our webcast on Wednesday on Key eDiscovery Case Law Review for the First Half of 2019 (which, if you missed it, can be viewed here), Tom O’Connor and I discussed several cases that couldn’t quite get to the stage of issuing an adverse inference sanction for spoliation of ESI.  This case shows that there are still cases out there where these sanctions happen – when the intent to deprive is clear enough.

In Cordova v. Walmart Puerto Rico, Inc. et al., No. 16-2195 (ADC) (D.P.R. July 16, 2019), Puerto Rico District Judge Aida M. Delgado-Colon granted in part and denied in part the defendant’s motion to dismiss for fraud on the Court, denying the defendant’s request for dismissal, but imposing a sanction of adverse inference regarding the content of the plaintiff’s Facebook page and her deletion of the related account.  Judge Delgado-Colon also ordered the defendant to “submit a proposed adverse-inference jury instruction to that effect before trial.”

Case Background

In this case filed by the plaintiff against the defendant alleging unlawful discrimination, retaliation, and unjust dismissal, when the defendant issued a set of interrogatories and request for production of documents asking the plaintiff to disclose and produce information and documents regarding her social media accounts, among other requests. The plaintiff responded, in essence, that she once had a social media account, but that it was closed and that she did not recall the name under which she had the account.

The defendant filed a motion to compel, contending that “the discovery was relevant in order to address plaintiff’s allegations of disability and her substantial allegations of severe mental, psychological, moral and emotional pain anguish and distress, loss of happiness and loss of capacity to enjoy life.”  The plaintiff claimed that prior to the discovery request, she had lost her cell phone, after which “she tried to access [her] Facebook account using [her] home computer” but got blocked out for unsuccessful attempts to log into the account and when she got a new phone, she tried again to access her Facebook account but was unable to do so and she did not “ha[ve] access to [the] Facebook account ever again.”  In a meeting between parties, the plaintiff was unsuccessful in accessing her Facebook account.

However, on September 19, 2018, the defendant was able to identify plaintiff’s public Facebook profile under the name `Córdova Eigna’—essentially, plaintiff’s second last-name and her first name spelled backwards.  That account was opened in 2009, the plaintiff updated her cover photo on August 23, 2018, and included a comment about `living happily ever after’ and posted a comment regarding the same as recently as September 6, 2018.  That same afternoon, however, the account became unavailable.  As a result, the defendant filed a motion, asserting that the plaintiff was duplicitous about the Facebook discovery in question and requested case dismissal.

Judge’s Ruling

Judge Delgado-Colon found that “Mercado failed to comply with her obligation under Fed. R. Civ. 26(e) to supplement discovery responses to Walmart’s requests regarding her Facebook account. Specifically, taking as true Mercado’s contention that she was blocked out of said account for a period of time after having lost her cell phone, she was obligated to voluntarily inform Walmart when she later regained access and resumed her activities on Facebook. In that respect, the Court rejects Mercado’s explanation that she was unaware of having to do so because discovery had concluded, and Walmart’s summary judgment motion was pending adjudication. Those are not valid reasons for Mercado’s non-compliance with her disclosure obligations under Fed. R. Civ. P. 26(e), especially regarding an ongoing, contentious discovery issue and given that Mercado has been represented by counsel at all times in this case.”

As a result, Judge Delgado-Colon granted in part and denied in part the defendant’s motion, stating: “Walmart’s request for dismissal is denied. However, the Court hereby imposes as sanction an adverse inference regarding the content of Mercado’s Facebook page and her deletion of the related account. Accordingly, Walmart shall submit a proposed adverse-inference jury instruction to that effect before trial.”

So, what do you think?  Did the spoliation warrant the adverse inference instruction?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

In Search of Cases Where Production of Databases Has Been Ordered: eDiscovery Case Law

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  Despite a few technical difficulties early on, Tom O’Connor and I had another great webcast yesterday on Key eDiscovery Case Law Review for the First Half of 2019 (which, if you missed it, can be viewed here).  During the webcast, one attendee asked about case law examples where parties have been ordered to produce (or provide access to) databases in response to discovery requests, so I’ve done some research and have the results here.

In his question yesterday, he provided an example of a party having to provide an actuarial database, but was looking for case law where parties have had to produce any kind of database in discovery.

With over 693 lifetime posts covering over 550 cases lifetime in eDiscovery Daily, I started with a search of cases there to see what I could find.  Here are three cases where parties were required to produce databases, or provide access to those databases or provide metadata from database systems:

Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., No. 1:12-CV-296 (N.D. Ind. Feb. 25, 2013): 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.

Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., No. 13-784 (D. Utah, Mar. 22, 2016): Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018): New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

Another part of the discussion related to production of source code, so here are a couple of cases where source code production was compelled (including one just last week):

ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016): Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source Code in part, “to the extent there are any files that MasterCard has not produced responsive to the parties’ previously established joint Search Protocol.”

Opternative, Inc. v. Jand, Inc., 17-CV-6936 (RA)(SN) (S.D.N.Y. July 12, 2019): New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files.  Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.

However, I was unable to find a case where an (actual) actuarial database was required to be produced.  So, I decided to do a search in eDiscovery Assistant, which is the site we’ve been using for most of our case opinions over the past couple of years.  In a search for “actuarial”, I found a number of cases and finally found this case, all the way back from 2007:

Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, No. 1:05-CV-2343-RWS (N.D. Ga. 2007): Georgia Richard W. Story granted the plaintiff’s Motion to Compel Production of Sequel Database, ordering the defendant to “produce, within eleven (11) days of the entry of this Order, a complete copy of the Sequel Database and a copy of any historical backup copies of the Sequel Database between 1998-2003”.

Yes, that was a request to produce their “sequel” database.  I had to laugh at that one.  :o)

So, what do you think?  Are you aware of any other cases where parties were required to produce (or provide access to) databases?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Today’s Webcast Will Help You Learn About Key eDiscovery Case Law in 2019 (so far) and How it Affects You: eDiscovery Webcasts

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  So far, 2019 has been another interesting year with notable and important case law decisions related to eDiscovery best practices. What do you need to know about the cases to avoid mistakes made by others and save time and money for your clients?  In today’s webcast, you can catch up on twenty-two (!) cases from the first half of the year and find out what they mean to you!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2019.  This CLE-approved* webcast session will cover key case law covered by the eDiscovery Daily Blog during the first half of 2019 to identify trends that lawyers should consider for their own practices. Key topics include:

  • Can ESI related to an unsolved murder case be compelled to be produced in a related civil case?
  • Is the use of biometric fingerprint scanning technology an invasion of privacy?
  • When can non-parties be compelled to produce ESI in litigation?
  • Are social media photos that you didn’t post discoverable if you’ve been tagged in them?
  • Can sanctions be so important that you fight NOT to have a claim against you dismissed?
  • Is being forced to provide your cell phone password the “death knell” for fifth amendment protection?
  • Should a case ruling be reversed if a judge is Facebook friends with one of the parties?
  • Should discovery be stayed while a motion to dismiss is being considered?
  • Does Rule 37(e) eliminate the potential for obtaining sanctions for spoliation of ESI?

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn from past eDiscovery case law decisions, this is the webcast for you!

So, what do you think?  Do you think case law regarding eDiscovery issues affects how you manage discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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