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Electronic Discovery

#metoo and the Increasing Investigation Emphasis on eDiscovery: eDiscovery Trends

In our April webcast (Discovery Isn’t Just for Litigation Anymore), conducted by Tom O’Connor and me, we discussed a number of factors that are increasing the need for eDiscovery software and services, including compliance considerations with the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).  The need for eDiscovery in internal investigations is on the rise as well and one of the most significant factors is workplace harassment and #metoo, which we also discussed in that webcast.  Here’s another indication of the growth of that factor.

In the Legaltech News article As #MeToo Yields Harassment Investigations, Companies Turning to E-Discovery to Help (written by Victoria Hudgins), the author discusses how “e-discovery companies say they’ve seen a noticeable increase in the past two to three years from corporate legal departments leveraging their platform to investigate workplace harassment.”

“We are seeing it across the board, not just specifically to one category but the concept of trying to proactively identify behavior before it becomes a bigger issue and addressing it with additional training or self-reporting,” said Sheila Mackay, managing director of eDiscovery services at eDiscovery provider firm H5.

In our webcast, we referenced the 2019 Litigation Forecast from Crowell & Moring where #metoo was identified as one of the top 2019 litigation trends.  As that report noted: “The ensuing litigation is just beginning to wind its way through the courts, and its full impact is yet to be felt.”

“There have been a lot of complaints raised and individuals terminated, but few cases have been fully litigated,” said Ellen Moran Dwyer, a partner in Crowell & Moring’s Labor & Employment Group and chair of the firm’s Executive Committee. “So we haven’t seen a real shift in the legal and liability standards that apply in harassment cases—but that may be coming. Over time, the courts will have to grapple with these issues.”

Investigations don’t always lead to litigation, but it’s notable that, with regard to the litigation associated with #metoo claims, we’re just getting started.  And, organizations don’t just have to worry about individuals filing harassment claims, states are passing a ton of legislation to establish requirements with which organizations need to comply – over 260 laws directly addressing topics supported by the anti-sexual harassment initiatives within a 30-month period.  And, violations could and probably will lead to states filing claims against employers on behalf of harassment victims.  These are new litigation possibilities that organizations have to be prepared for as well.  Of course, the best litigation is the one you never have to conduct, so the importance of using eDiscovery software and services to identify potential harassment issues within the organization and address them proactively has become more important than ever.

So, what do you think?  How has your organization prepared to identify harassment issues?  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.

The Price is Right. Or is it? You Be the Judge: eDiscovery Trends

Talking about eDiscovery pricing in this industry is like talking about Fight Club, the first rule and second rule seems to be that you don’t talk about it.  Only Rob Robinson could get 81 people to talk about what isn’t talked about in this industry.

But, before I talk about it, I must first issue a “mea culpa”.  Every post for this blog is posted by me (even if not written by me) and I always schedule the posts to hit right after midnight on the day they will be posted.  On Sunday, I wrote the post for Monday and I selected the date and time for the post to issue.  But I forgot to hit the schedule button!!  Doh!!  So, the post didn’t hit our blog site until I noticed it about mid-morning and the daily newsletter wasn’t issued because there wasn’t a new post at “press time”.  Honestly, I’m surprised it hasn’t happened before.

So, if you missed yesterday’s post about my guest post for our good friends and Kansas City partners at Complete Legal regarding Leveraging Your Services Provider to Meet Today’s eDiscovery Challenges, click here to see it referenced on our blog.  Or better yet, click here to go straight to that guest post.  My bad.

Regardless, this post is about the latest survey from Rob Robinson and his terrific Complex Discovery blog.  The eDiscovery Pricing Survey is a non-scientific and non-comprehensive survey designed to provide general insight into eDiscovery pricing as shared by individuals working in the eDiscovery ecosystem.  It consists of 15 multiple choice questions focused on information and metrics related to eDiscovery pricing for collection, processing, and review tasks and it is open to legal, business, security, and information technology professionals operating in the eDiscovery ecosystem.  Individuals are invited to participate semi-annually primarily by direct email invitation from Complex Discovery and leading industry educational partners including the Association of Certified E-Discovery Specialists (ACEDS).

As I mentioned, there were 81 respondents for this Summer survey – 84% of which were providers (Software and/or Services Provider – 38.3%, Law Firm – 32.1% and Consultancy – 13.6%).  That’s 68 providers talking about eDiscovery pricing!  :–O

I won’t steal Rob’s thunder in this blog, check out the survey results here.  This is the second eDiscovery pricing survey published by Rob – check out the first survey here.

So, what do you think?  How do those results compare with what you pay for eDiscovery services?  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.

My Guest Post for Complete Legal: eDiscovery Best Practices

You might think that since I write a daily blog, I have no time to do any other writing on the side.  And, a lot of times, that’s true.  However, I wrote a guest blog post recently for our good friends and Kansas City partners at Complete Legal and so I’ve decided to point to that blog post for today to give our readers a chance to read that post.

The blog post is titled Leveraging Your Services Provider to Meet Today’s eDiscovery Challenges: eDiscovery Best Practices and it’s on Complete Legal’s site here.  We’ve been partners with Complete Legal for several years and have worked with co-founders Jeff Dreiling and Eric Kelting for several years before that.  In the post I noted that in this era of automation in eDiscovery, you might think that the need for eDiscovery services is dwindling, but nothing could be further from the truth – the need to partner with an experienced eDiscovery services provider to ensure a successful outcome to your case is more important than ever.

I covered several topics in the post, including some interesting statistics that illustrate that the demand for eDiscovery services is as strong as ever, why you need an eDiscovery provider, making sure you select a provider with the right experience, getting your eDiscovery “geek” involved early and often, working with your eDiscovery service provider as a partner (not as a vendor) and how familiarity breeds “content” – which is to say that developing a comfort level with the right vendor can be a beautiful partnership that lasts for years.  That’s something we can all appreciate!

Again, the post is here, so please check it out!  Consider it today’s post, just in a different place.  See what I did there?  Sneaky, huh?  :o)

So, what do you think?  How do you work with your eDiscovery services provider?  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 Orders Plaintiff to Share in Discovery Costs of Non-Party: eDiscovery Case Law

In Lotus Indus., LLC v. Archer, No. 2:17-cv-13482 (E.D. Mich. May 24, 2019), Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Case Background

In this civil RICO and First Amendment retaliation case associated with redevelopment of property in Detroit, the Plaintiff filed a motion to compel production of documents requested in his September 2018 subpoena to nonparty DDA in January 2019.  A hearing was held on the plaintiff’s motion on March 26, 2019, after which the Court entered an order granting in part and denying in part Plaintiff’s motion, ordering DDA to produce, by April 26, 2019, documents responsive to Request Nos. 4-6 of Plaintiff’s subpoena for the November 19, 2016 to present time period, and to produce a privilege log for any documents withheld on the basis of privilege.

On April 19, 2019, DDA filed the instant motion for protective order, seeking an extension of time to produce responsive documents and requesting that the plaintiff pay DDA its share of the expenses of production before being obligated to begin to comply with the Court’s order, contending that the volume of potentially responsive documents was substantially larger than anticipated (48.5 GB of data) and would impose a significant expense on DDA to produce and require far more time to complete than allowed by the Court’s order.  DDA initially anticipated the total expense of production at $127,653.00, which included $21,875.00 in costs to upload the data and approximately $105,778.00 in attorney’s fees in connection with a privilege review. DDA requested Plaintiff pay the $21,875 in costs and 25% of the anticipated attorney’s fees ($26,444.50); in response, the plaintiff opposed that motion and questioned why the costs were so high.

At the May 8, 2019 hearing on the motion, the parties agreed on new search terms to further refine the number of responsive documents and the Court scheduled a status conference for May 23, 2019 to discuss the results of that search. On May 22, 2019, DDA submitted a supplemental brief explaining that the revised search yielded 8.5 GB of data that must be reviewed for privilege, at a cost of $2,125.00 to upload the data to counsel’s eDiscovery platform and anticipated costs of $44,705.00 in attorneys’ fees to conduct a privilege review, so it sought an order for the plaintiff to pay DDA $2,125.00 in costs and $11,176.25 in attorneys’ fees (still 25% of the total attorneys’ fees anticipated).

Judge’s Ruling

Judge Patti found that “DDA has sufficiently established that it will be forced to incur $2,125.00 in fixed costs to upload the 8.5 GB of data to its third-party e-discovery platform in order to review it for production, and that it anticipates incurring $44,705 in attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production.”

He also noted that “DDA has demonstrated that it has no interest in the outcome of this litigation, as it is not a party and Plaintiff’s prior case against it was dismissed as a sanction for Plaintiff’s ‘repeated misrepresentations’ and ‘failures to comply with discovery orders — despite warnings and the imposition of less severe sanctions…While DDA may more readily bear the expense of production than Plaintiff, that factor alone does not dictate that Plaintiff is relieved of the obligation to pay for some of the expense of production, particularly where this litigation has no particularized public importance and considering the ‘unusual circumstances’ in this case, including that Plaintiff’s prior lawsuit against the DDA was dismissed as a sanction, and he and his clients have been at the receiving end of multiple sanction awards in related and unrelated litigation, significant portions of which this particular plaintiff and his counsel have apparently failed to pay…In addition, the subpoena was directed in part at the general counsel for DDA, and Plaintiff should have anticipated that production of documents in response would require a robust privilege review prior to production, especially given the litigation history between Plaintiff and the DDA.”

As a result, DDA’s motion was granted in part and denied in part without prejudice and Judge Patti ordered that:

  1. “Plaintiff must pay to DDA the sum of $4,360.25, which constitutes the $2,125.00 in costs to upload the 8.5 GB of data to DDA’s counsel’s e-discovery platform, and $2,235.25 in attorneys’ fees (5% of the anticipated attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production).
  2. Plaintiff must deliver the $4,360.25 check payable to City of Detroit Downtown Development Authority (although the check can be delivered to counsel for DDA) on or before 5:00 p.m. Monday, June 3, 2019. Plaintiff shall also promptly certify such payment to the Court, and include a copy of the check.
  3. DDA need not continue further efforts to produce documents until it is paid in full. Once paid, DDA shall have 45 days from that date to produce responsive documents, and a privilege log for any documents withheld on the basis of privilege.”

So, what do you think?  Do you agree with the distribution of costs?  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.

No Bates, No Problem for Native Files: eDiscovery Throwback Thursdays

If you read my blog post on Tuesday, you saw my coverage of Craig Ball’s blog post regarding whether we’ve “lost the war” on eDiscovery.  Craig particularly lamented the lack of focus on practical eDiscovery skills, especially in the eDiscovery conferences we attend, where they have moved on to “anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  Certainly, that sentiment probably extends to publications as well, as we have covered a lot of those “anti-discovery” topics extensively.  But we used to cover a lot more of the practical eDiscovery best practices in the early years of the blog.  And, that got me thinking that maybe we should revisit some of those topics.

So, I’m starting a new series – Throwback Thursdays – here on the blog, where we will do just that – revisit 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.  That’s not a new idea: Craig did that on his blog in the past and we have re-played some of our own best practice posts (with some updates) when the topic came up again in our dealing with our clients.  We even had a previous “Throwback Thursday” series on this blog that my former colleague Jane Gennarelli wrote about the early days of technology in litigation support.  Nonetheless, we will start running this series on Thursdays (most of them, anyway) for a while as many of these topics were covered by this blog when we had a lot less readers than we do now.  It’s new if you haven’t heard it, right?  :o)

Our first Throwback Thursday post is one we published back in March 2011 – when the eDiscovery Daily blog was less than six months old.  It’s one that made me laugh when I read it – not because the advice is any less sound, but because I stated that is has become “commonplace” for parties to agree (and courts to accept) a file-level ‘Bates’ or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number.

Well, I might have overstated that a bit!

Especially when you consider this case from less than a year ago where a Kansas Magistrate Judge stated that “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly”.  It seems like many attorneys and some courts still have to learn that you can produce in native format and still support the idea of presenting in image format.

So, it was probably accurate when I stated that “it seems to ‘upset the legal apple cart’ when attorneys have to contemplate applying Bates numbers to native files.”  No kidding!  As I noted back then, “many native file types are not stored in a typical paginated, document-oriented format, [so] it is difficult to impossible to determine the number of pages for each file.  Because attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily.  That would be like printing out every email in your Inbox before reading them.”

Back then, I talked about accepting a file-level Bates number where each file is named with a prefix and a sequential number (just like a Bates number, only they’re not stamped in the file, but used as the file name).  These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.  I also noted that “[i]f there’s a concern about referencing individual page numbers at deposition or trial, any files used as exhibits can still be converted to image (or printed) and a number applied.  You could simply use the UPI as the prefix, followed by a sequential number, so page 3 of the 11th file in the production could be stamped like this: PROD000011-00003.  This enables you to uniquely identify each native file, and still correlate the native file with pages when printed.”

Makes sense, right?  If so, why are we still debating this over eight years later?  Regardless, here’s the post we originally published back in March 2011.

So, what do you think?  Are your productions routinely in native format?   If not, why not?  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.

Here’s a Webcast to Help Plaintiff’s Attorneys Conquer Their Biggest eDiscovery Challenges: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, it seems as though the eDiscovery deck is stacked against plaintiff’s attorneys.  Defendants seem to have all the resources, the technical know-how and the interest of the major eDiscovery vendors while the plaintiffs often have few resources, technical knowledge or eDiscovery experience.  How do plaintiff’s attorneys bridge that gap?  Here’s a webcast that will help put those plaintiff’s attorneys on a more equal footing with their defendant counterparts.

Wednesday, June 26th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Conquering the Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the biggest eDiscovery challenges facing plaintiff’s attorneys and provide best practices for addressing those challenges to give plaintiff’s attorneys the best chance to get the evidence they need for their case. Topics include:

  • Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys
  • Ethical Duties and Rules for Understanding Technology
  • Does the eDiscovery Market Care About Plaintiff’s Attorneys?
  • Understanding the Fundamentals of eDiscovery
  • Your Clients May Have More ESI Than You Think
  • How to Request the Right Form of Production from Opposing Counsel
  • Mechanisms and Approaches for Getting the Data to Make Your Case
  • What You Need to Know About Technology Assisted Review
  • Resources You Need to Bridge Your Understanding Gap

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose aforementioned white paper regarding the biggest eDiscovery challenges facing plaintiff’s attorneys was published last month on the blog.  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’re a plaintiff’s attorney looking to better handle eDiscovery challenges or a defense attorney wondering what “secrets” we’re passing onto those plaintiff’s attorneys, this webcast is for you!

So, what do you think?  Are you a plaintiff’s attorney who feels that the eDiscovery deck is stacked against you?  If so, please join us!  If not, please join us anyway!  And, 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.

If You’re Reading This, It Probably Doesn’t Apply to You: eDiscovery Best Practices

On the veritable eve of the annual Georgetown Law Center eDiscovery Training Academy (covered by us here), Craig Ball (who is in the midst of that very academy now) has asked the question Have We Lost the War on E-Discovery?  But, if you’re reading that (or this blog post), it probably doesn’t apply to you.

In Craig’s post from last Thursday, he notes that the idea that there is a war on eDiscovery “[s]ounds like a paranoid notion, but the evidence is everywhere.”  He observes that he is “flummoxed by how the tide has turned to anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  He notes that “[t]hese are important topics” and that “[d]iscovery needs to be just, speedy and inexpensive”, but asks “why do we keep forgetting that there’s a comma in there?  Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone?”

Craig also notes that “Impractical, misplaced and mistimed topics like blockchain,” (oops, we did that in a blog series and webcast) “Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction.”  In asking you whether there is a war on eDiscovery, Craig also challenges you to “[l]ook at the agenda of any major e-discovery conference” and “[c]ount the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence”, then “count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots.”

Craig, in referencing the “last round of e-discovery rules amendments”, also observes that requesting parties are not winning the war on eDiscovery and notes that “Corporations spent more money lobbying for the 2015 e-discovery rules changes than has ever been spent in support of procedural rules amendments since 1939.   Final score: Funders 1, Founders 0.”

Craig is not wrong about any of this.  He was one of the experts that discussed the challenges facing plaintiff’s attorneys in Tom O’Connor’s recent series on our blog.  There are a lot of challenges and we will touch on that tomorrow and later this month in our monthly webcast.

But, here’s the problem.  Most of the people who are in this predicament are probably not reading about this in Craig’s blog – or here.  They aren’t requesting those hours of instruction on practical eDiscovery skills.  They aren’t reading the blogs and other publications to learn more about what they should be doing (at least when we do cover those topics).

If they did, the webinars and blogs and conferences might just cover those topics more.  They cover what their viewers/readers/attendees are asking for.  And, it’s not usually the practical eDiscovery skills because many of the people who view the webinars, read the blogs and attend the conferences have learned about those already.  They are among the small percentage who have obtained that knowledge already and want to move onto newer topics that are more interesting to them.  It’s the rest of the people who haven’t.  And, unfortunately, they are the ones who are not reading Craig’s blog, or this one.

So, what do you think?  Do you want to see more practical eDiscovery skills covered on this blog?  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.

With No Showing of Prejudice, Court Denies Spoliation Sanctions Against Defendant: eDiscovery Case Law

In Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM (N.D. Okla. May 21, 2019), Oklahoma Magistrate Judge Frank H. McCarthy, finding that the plaintiffs “have not demonstrated they have been prejudiced” by the loss of the plaintiff former employee’s work computer, denied the plaintiffs’ motion for sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach” for the defendant’s “clear failure” to preserve the computer.

Case Background

In this employment discrimination action filed by a former employee of the defendant who was terminated on July 5, 2018 for alleged performance issues, the plaintiff submitted an EEOC charge of discrimination on August 1, 2018 and issued a Right to Sue letter on August 15, 2018.  The plaintiffs commenced the action in October 2018 and the action was removed to federal court in November 2018.  On October 29, 2018, defendant’s counsel sent an email to plaintiffs’ counsel instructing them about plaintiffs’ obligation to preserve data on all electronic media and lectured plaintiffs about their duty to preserve evidence in a subsequent email.

However, an IT supervisor for the defendant stated in his deposition, that (the former employee) Mrs. Mafille’s computer was given to a charitable organization with other retired computers on November 3, 2018 and as a result the data contained on the computer was not preserved and presumably destroyed.  While Mrs. Mafille stated that she was “unaware of the extent of information that might have been on her [work] computer”, the plaintiffs nonetheless asserted that Mrs. Mafille’s workplace computer was willfully and intentionally destroyed, that it may have provided a “treasure trove” of information concerning her work performance over the entire term of her employment, and that as a result the plaintiffs had been irretrievably prejudiced.

Judge’s Ruling

Judge McCarthy stated: “In defense of its failure to preserve the computer, Defendant makes what the court views as an ill-considered assertion that if Plaintiffs had made a request for the computer earlier than they did, the computer could have been pulled and saved…As evidenced by the emails from Defendant’s attorney lecturing Plaintiffs about their obligation to preserve electronically stored evidence, it is abundantly clear that counsel was aware of Defendant’s own responsibility in this regard. The duty to preserve the electronically stored evidence exists independent of a specific request that the evidence be preserved. It is exceedingly poor form, and beyond zealous advocacy, for Defendant to attempt to blame Plaintiffs for its own obvious failing. The court finds that Mrs. Mafille’s work computer should have been preserved and further that Defendant is solely and entirely at fault for failing to take reasonable steps to preserve the computer.”

However, Judge McCarthy also observed that “Defendant asserts that sanctions are not appropriate because Plaintiffs have not demonstrated they have been prejudiced by the loss of Mrs. Mafille’s work computer. According to Defendant, a policy was in place requiring that materials be uploaded to Defendant’s LAN Server daily. As a result, there should not have been relevant materials on the subject computer that are not also accessible on the LAN Server. Defendant also asserts that it has requested Plaintiffs to identify what items were on Mrs. Mafille’s computer so an attempt can be made to recover the items from the LAN Server, but Plaintiffs have not identified any such items.”

Stating “[b]efore an order of sanctions may be entered, there must be a showing of prejudice”, Judge McCarthy denied the plaintiffs’ Motion for Sanctions “without prejudice to reassertion of the motion if through discovery it is determined that some specific evidence is beyond Plaintiffs’ reach because of what the court views as Defendant’s clear failure to preserve Mrs. Mafille’s work computer.”

So, what do you think?  Did the defendant get lucky there?  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.

If You’re “Certifiable”, You Must Be “Committed”: eDiscovery Trends

Despite what the title might suggest, this is an eDiscovery related post, not a psychological one.  Certifications have become increasingly important in eDiscovery today and a couple of recent events illustrate how “committed” CloudNine is to eDiscovery professionals who are “certifiable”.

I can’t believe it has taken me this long to mention it, but I was recently interviewed by Jared Coseglia, founder and CEO of TRU Staffing Partners for Legaltech® News regarding our training and certification program for our CloudNine LAW product (The LAW PreDiscovery Certification is Back).  In that interview, Jared and I discussed the direction of LAW and how much CloudNine has invested in the product since we acquired it (along with Concordance and Early Data Analyzer, now rebranded as CloudNine Explore) in terms of doubling our development and customer success staff for the products.  As a result (shameless plug warning!), we have rolled out a number of new features and capabilities, including our new 64-bit ingestion “Turbo Import” module that has increased ingestion speed as much as 1200 percent in our tests.

But, another big part of LAW being back has been re-instituting the training and certification program for LAW.  While all these changes in functionality mean updates to the training and certification program, we have been working hard to make those updates to support a training and certification program that reflects those updates.  The end result is a certification program that reflects the most recent updates to the product and CloudNine will be looking to implement a two-year renewal to make sure that certified LAW professionals have certified training on the latest features.

If you’re an organization that uses LAW (or develops the product, like we do), that up-to-date certification will become more and more important in hiring eDiscovery professionals with experience in LAW.  Let’s face it, given the choice between two otherwise equivalent professionals – one who has an up-to-date certification in LAW and one who doesn’t – who wouldn’t pick the one who has the up-to-date certification every time?

Which leads me to the other event: yesterday’s announcement that CloudNine has renewed its partnership affiliation with the Association of Certified eDiscovery Specialists (ACEDS).  How far has ACEDS come in the past three plus years?  ACEDS today has 20 chapters across the globe, and over 10,000 professionals tuned into their weekly newsletter, which is great and it’s due to the leadership of ACEDS executive director Mary Mack and VP of Client Engagement Kaylee Walstad (and the team that support them).

Like CloudNine and our eDiscovery Daily Blog, ACEDS has been committed to education of eDiscovery professionals in a variety of ways, through webinars (some of which we have partnered with them on) and other educational programs, and especially through certifications.  It wasn’t that long ago that an industry survey showed that eDiscovery professionals were only slightly more than 50-50 on eDiscovery certifications, but the ACEDS certification today has clout like never before.  The ACEDS certification could make the difference between getting that important eDiscovery job and not getting it.  So, if you’re certifiable – and you’re committed – that could actually be a good thing (at least from an eDiscovery standpoint, if not a psychological one).

So, what do you think?  Do you have an ACEDS certification or some other eDiscovery related certification?  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.

Does Louisiana’s Tech Ethics Opinion Miss the Mark? Depends on Who You Ask: eDiscovery Trends

Last week, I read an article from Bob Ambrogi on Above the Law, that discussed his opinion (as well as that of Nicole Black, discussed in her Sui Generis blog) that the recently adopted Louisiana ethics opinion misses the mark with regard to guidance to lawyers regarding their ethical duty to understand technology.  When I saw that, I reached out to my good buddy Tom O’Connor (and the longest tenured Louisiana attorney I know, sorry Craig), for his take.  Did he agree with that assessment?  As Tom put it in his own Techno Gumbo blog (channeling his internal Lee Corso), “not so fast, my friend”.

The first shortcoming that Bob and Nicole point out has to do with language that seems to indicate that the duty to be competent in technology should kick in only if a lawyer “chooses” to use technology.  Two quotes from the opinion are as follows:

Spanning the bottom of page 1 and top of page 2: “The consensus is that if a lawyer is going to use technology, that lawyer has a duty to comply with Rules 1.1, 1.3, 1.4, 1.6 and 1.15 of the ABA Model Rules of Professional Conduct.”

First paragraph at the top of page 7: “Additionally, lawyers have ethical rules that require confidentiality of client information.  Thus, if a lawyer chooses to use technology in the lawyer’s practice, basic issues must be addressed.”

Bob identified a second shortcoming of the opinion via the Conclusion on page 9, that it “is directed solely at a lawyer’s own use of technology”, which “misses a critical component of the duty of technology competence – understanding the client’s use of technology”.

Here is that Conclusion: “A lawyer must consider the benefits and risks associated with using technology in representing a client.  When a lawyer uses technology in representing a client, the lawyer must use reasonable care to protect client information and to assure that client data is reasonably secure and accessible by the lawyer.”

Bob also referenced that “the ABA’s first opinion to address Model Rule 1.1, Comment 8 — Formal Opinion 477 issued in 2017 — makes the point repeatedly that the duty of technology competence encompasses the ability to understand how the client uses technology, what technology systems the client uses, and the client’s degree of technology sophistication.”

Tom noted that ABA Model Rule 1.1, Comment 8 was “horribly vague” when it was passed in August of 2012 and merely says  “ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  He also noted that Formal Opinion 477 dealt specifically with Securing Communication of Protected Client Information, the actual title of the Opinion and was “a specific technical discussion and not that of an overall duty of technical competence.”

Tom also noted that “everyone discussing this topic, quotes the The State Bar of California’s Formal Opinion No. 2015-193 with its ‘6 things ever lawyer needs to know about technology’ emphasis”, but that opinion is positioned as “advisory only” and “specifically refers ONLY to eDiscovery matters.”  Despite the fact that California is the only state to issue an eDiscovery competence opinion, they are one of only 14(?) states now that still hasn’t adopted the ABA Model Rule for technology competence.  Go figure.

With regard to whether the Louisiana opinion implies a choice of whether or not to use technology. Tom says “I personally think that’s splitting hairs in a way the Code doesn’t intend.  Perhaps a better word would have been ‘when’ not ‘if’, but still, do we seriously think anyone is NOT using technology? I mean they could choose not to use a phone either but I’m guessing their work would diminish. Rapidly.”  And, he notes that only two states have passed a subsequent CLE requirement for gaining that tech competence, so, by that standard, nearly every state (except for Florida and North Carolina) falls short.  That may be the real indicator that we still have a long way to go on attorney tech competence across the country.

I hit the highlights of the respective arguments, but I encourage you to read each of their articles/posts for more information.

So, what do you think?  Did Louisiana miss the mark with its ethics opinion on lawyers’ use of technology?  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.