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Electronic Discovery

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys

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, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

Approximately 2/3 of my consulting practice revolves around issues with ESI production. Much of that work involves asymmetrical cases where one side, typically corporate defendants, has the vast majority of discovery. And since my experience is not untypical, what we see in eDiscovery practice is a heavy focus in the eDiscovery world on defense strategy, both in actual practice and educational conferences.

But what about strategy for the Plaintiff’s bar? Do they have different even dramatically different needs simply because they have less ESI?  In discussing this article, I was asked the following questions which we will consider below:

  • Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?
  • Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources? Or does it depend on the type of plaintiff?
  • Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?
  • Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting? Should there be a model for requesting parties?

To research this issue, I decided to begin by asking several attorneys with Plaintiffs’ side experience, past and present, the following question, “What would you say are your top 3 pain points in plaintiffs’ eDiscovery work?”

My query went to the following attorneys:

  • Craig Ball, well known consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog;
  • Ariana Tadler, Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover
  • Bob Eisenberg, Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law (CMLaw) eDiscovery Professional Certificate Program
  • Drew Ashby, Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm
  • Jean Martin, head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina

In this paper, we will take a look at their responses and comments regarding the biggest eDiscovery challenges facing plaintiff’s attorneys, as follows:

  1. Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys
  2. Cooperation Challenges
  3. Lack of Competence Challenges
  4. Conclusions

We’ll publish Part 2 – Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys – on Thursday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held this Thursday, May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  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.

Why Do Hackers Hack? It’s About the Money, Apparently: Cybersecurity Trends

Big surprise there, right?  So says the 2019 Verizon Data Breach Investigations Report (DBIR), which analyzes the reported cybersecurity and data breach incidents for the year.  According to this year’s report, senior C-level executives are 12 times more likely to be the target of social engineering attacks, and 9 times more likely to be the target of social breaches than in previous years, with financial motivation the key driver in these attacks.

Many of the attacks on C-level executives are phishing attacks, often where the hackers pose as the CEO, eventually asking for a financial transfer to be conducted to a certain account (I wrote about an attempt I received earlier this year).  As I wrote in that article, marking emails coming from an external source with an “*** External Email ***” marker inserted into the received email has helped us at CloudNine identify those phishing instances.

As always, this year’s report has some interesting findings.  Here are some of them from the 78-page PDF report:

  • They are reporting on over 41,686 incidents and 2,013 confirmed data breaches, both numbers were down this year from last year;
  • 69% of reported breaches were perpetrated by outsiders, 34% by internal actors (last year, the ratio was 73%-28%);
  • 39% of breaches were carried out by organized criminal groups, down 11% from last year;
  • 23% of breaches involved actors identified as nation-state or state-affiliated, up 11% from last year;
  • Who was affected? 16% were breaches of public sector entities, 15% of breaches affected healthcare organizations, 10% of breaches involved the financial industry and 43% of victims are categorized as small businesses.  While that is the highest category, it is 15% lower than last year.
  • How do they get you? 52% of breaches featured hacking, 33% were social attacks (nearly double last year’s 17%), 28% included malware, 21% of breaches had errors as causal events, 15% involved misuse by authorized users and 4% of breaches involved physical actions.
  • Also, 71% of breaches were financially motivated, 25% of breaches were motivated by the gain of strategic advantage (espionage), 32% of breaches involved phishing, 29% of breaches involved use of stolen credentials and 56% of breaches took months or longer to discover. While that number seems remarkable, it is 12% down from last year’s 68%.

As always, the report is chock full of graphics and statistics which makes it easier to read than the size of the report indicates and covers everything from social attacks to ransomware to denial of service to incident classification patterns and coverage of data breaches and other incidents in several industries.

You can download a copy of the report here.  Believe it or not, this is our fifth(!) year covering the report (previous reports covered here, here, here and here).  Enjoy!

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Have you ever experienced any data breaches, either personally or professionally?  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.

Twenty-One Points, Less Than 350 Words: eDiscovery Best Practices

Yesterday, I wrote about whether judges, like lawyers, should have an explicit technical competence requirement as well.  Leave it to Craig Ball to take a somewhat complex technical concept and break it down to the fewest possible words – i.e., in a “nutshell”.  Hey, judges!  This might be a good place to start!

As Craig notes in the latest blog post on his terrific Ball in Your Court blog (Electronic Storage in a Nutshell), he finished the E-Discovery Workbook for the 2019 Georgetown E-Discovery Training Academy (which we covered here).  The readings and exercises in the Workbook “plot the path that evidence follows from the familiar information items called ‘documents’ that lawyers use in court back to the featureless stream of binary electrical impulses common to all information stored electronically.”  While the Workbook is nearly 500 pages, the technology of eDiscovery is its centerpiece, and Craig has added a 21-point synopsis of the storage concepts, technical takeaways and vocabulary covered.

I won’t steal his thunder and go into all 21-points, but it starts from the premise that “Common law imposes a duty to preserve potentially-relevant information in anticipation of litigation” and ends with the understanding that “Hashing facilitates identification, deduplication and de-NISTing of ESI in e-discovery”.  In between are concepts about things like storage media, how computers store data, how file types and file formats are identified, different types of metadata, what happens to files when they’re deleted and how they can be recovered, and so forth.  21 points, comprised of only 349 words (that’s the count you get when you copy and paste them into Word – sans outline, at least).  And, you thought that “Cliff” was good at summarizing large amounts of text (think about it).  Sometimes, you feel like a nut!  ;o)

With regard to the Georgetown E-Discovery Training Academy, Craig notes (as he did in our blog post covering the coming Academy) that no member of the Academy faculty is compensated and that they are all volunteers.  Which is pretty incredible considering that some of them are devoting up to a week to teach eDiscovery concepts.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held next Thursday May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you feel you have an adequate understanding of technical concepts like electronic storage?  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.

Should Judges Have an Explicit Technical Competence Requirement?: eDiscovery Trends

Since the American Bar Association revised the Model Rules of Professional Conduct for lawyers in 2012 to add technology competence to their duty to be competent in the law and its practice, there have been 36 states that have adopted that Model Rule.  How do I know that?  Because Bob Ambrogi keeps track of that on his LawSites blog here.  But, what about judges?  Shouldn’t they have an explicit technical competence requirement as well?

As Bob notes in his latest article in Above the Law (It Is Time To Extend The Duty Of Tech Competence To Judges), it was 2012 when the ABA amended Comment 8 to Model Rule 1.1, which pertains to competence, to say that lawyers have a responsibility to keep abreast of changes in law and practice, “including the benefits and risks associated with relevant technology.”  And, just as there is a model code of conduct for lawyers, there is a corollary model code of conduct for judges. That code, however, contains no parallel duty of technology competence for judges, at least not explicitly. And, despite the fact that most states also have codes of judicial conduct, none of those state codes appears to explicitly require technological competence for judges either.

Bob notes several ways that a judge’s responsibilities intersect with technology, including: ruling on issues of evidence and discovery involving digital sources (obviously, we’ve covered a lot of those on this blog), deciding cases involving issues of technology and ethically using technology and social media in their own professional and personal lives (we’ve touched on that too, including this recent case that we covered where a decision was reversed, based on a judge accepting a Facebook friend request from a party involved in a case in his courtroom).

Bob also cited the 2019 judges survey conducted by Exterro and EDRM/Duke Law which asked federal judges whether they are satisfied with their level of knowledge of eDiscovery technology and practices. Of the 260 judges who responded, less than a third said they require no additional training or education.  In other words, most feel they need to understand it better.

Would an explicit duty to be competent in technology help?  Well, it couldn’t hurt.  While it could be argued that there are plenty of lawyers who still don’t understand technology very well, there are certainly more that do now, possibly due (in part) to the technology ethical requirement.  At least they seem more interested in attending technology-related CLE courses than they used to be, at least the ones we offer.

Since the Model Code of Judicial Conduct was adopted by the House of Delegates of the American Bar Association in August 1990, the longest it has ever gone without being updated is about seven years (from the original Model Code to the first amended version in 1997).  Until now, where it hasn’t been updated since August 2010 (closing in on nine years since the last update).  When you consider how much technology has changed during that time, it’s amazing.  So, it’s possibly overdue for any type of update.  When they do update it next, they will hopefully address technology competence at that time.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you think judges, like lawyers, need an explicit technical competence requirement as well?  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.

Here’s a Webcast to Learn How to Keep Production from Becoming Such a Big Production: eDiscovery Webcasts

Does it seem like eDiscovery production always seems to be such a big production? It doesn’t have to be. There are a number of steps you can take to minimize the stress, cost and rework associated with producing electronically stored information to opposing counsel as well as to ensure that their production to you is as useful as possible.  Here’s a webcast that will help you learn the steps and concepts to keep your productions from turning into a big production.

Wednesday, May 29th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Keeping Production from Becoming a Big Production. In this one-hour webcast that’s CLE-approved in selected states, we will discuss some of the most common steps you can take during the discovery life cycle to keep your eDiscovery production on track. Topics include:

  • When to Start Thinking About the Production
  • Proactively Addressing Inadvertent Privilege Productions
  • Up Front Planning to Reduce Your Production Burden
  • Avoiding Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Eliminating Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Avoiding the Redaction “Epic Fail”
  • Understanding Load Files and Common Issues with Them
  • Ensuring a Smooth and Accurate Production Set

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose white paper regarding production challenges and how to address them 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 want to learn about blockchain and how it can affect your job as a legal professional, this webcast is for you!

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you find your productions always turn into a big production?  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.

Florida Appeals Court Upholds Ruling that Non-Party Had No Duty to Preserve Evidence: eDiscovery Case Law

In Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019), the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Case Background

In the case originally involving the Appellant’s suit against the City of Daytona Beach over zoning, the Appellee was never a party to the Appellant’s action against the City, but the Appellant’s operative complaint contained two references to the Appellee in its general allegations.  During the case, the Appellant sought to take the Appellee’s deposition and served several notices of deposition and subpoenas on the Appellee, beginning in May 2011 and ending ten months later with a sixth amended notice of taking deposition in March 2012, which was the only one that included a duces tecum request for documents to be produced at the deposition.

The Appellee’s deposition was taken in April 2012, where she testified that she had obtained a new desktop computer and had destroyed her old computer in December 2011. She did not preserve any records, documents, or emails from her old computer and did not inform anybody, including the City Attorney, that she was destroying it. Her testimony established that she destroyed her old computer after receiving the first deposition notice but before receiving the sixth amended deposition notice that for the first time included a duces tecum request.

The Appellant then filed a two-count complaint against the Appellee, alleging that she either intentionally destroyed her old computer or “negligently destroyed [it] in bad faith.” In that case, the Appellee and the Appellant filed competing motions for summary judgment regarding whether the Appellee had a duty to preserve her computer or its contents.  The Appellant argued, citing League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015), that the Appellee therefore had a duty to preserve evidence based on the foreseeability of litigation, but the trial court denied the Appellant’s summary judgment motion and granted the Appellee’s. It found that there was no genuine issue of fact that the Appellee had no statutory or contractual duty to preserve evidence; thus, the Appellant had to rely on a duty imposed by a discovery request.

Judge’s Ruling

In the opinion authored by J. Sasso, the court, after considering several cases cited by the Appellant, concluded that “no Florida court has yet recognized a common law duty for third-party preservation of evidence based on the knowledge or foreseeability of litigation”.  As a result, the court stated:

“In this case, there was no statute, contract, or discovery request that would impose a clearly defined duty on Remark to preserve any potentially relevant evidence. Thus, a duty would arise only through Remark’s purported knowledge of Shamrock’s pending litigation and her anticipation that something in her control could potentially be of use to that litigation. As such, Shamrock would like us to announce that Remark owed a duty to it based on the foreseeability of litigation. Considering the traditional approach to defining legal duty, we decline to do so. Indeed, such a broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits. There are innumerable circumstances in which a nonparty to litigation may have evidence relevant to a case and may know of its relevance. But that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation of litigation…While we do not speculate as to every circumstance under which a third party to litigation may have a legal duty to preserve evidence, we hold that the trial court properly determined here that Remark did not owe a legal duty to Shamrock. The summary judgment in favor of Remark is affirmed.”

So, what do you think?  Would the decision be different in other jurisdictions?  Should it be different?  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.

Here’s the “eDisclosure” Systems Buyers Guide for 2019: eDiscovery Trends

Yep, it’s that time of year again.  Time for Andrew Haslam’s annual eDisclosure Systems Buyers Guide!

Authored once again by litigation support and “eDisclosure” (that’s what they call eDiscovery across the pond) expert Andrew Haslam and published in conjunction with Legal IT Insider – and now in its seventh edition, the eDisclosure Systems Buyers Guide has become an industry bible for tracking providers in the industry. As always, the Guide provides an overview of key technology considerations, industry approaches and vendor capabilities regarding eDisclosure.  Covering topics from the EDRM Model to vendor service and software analysis, the guide provides a complete and credible resource for legal and IT professionals seeking to understand and apply eDisclosure concepts, processes, techniques, and tools.

The target audience for the Guide are those individuals who understand they have a requirement, but don’t know how to proceed with the next steps. Andrew says that Chapter 6 (the procurement Chapter) provides the “meat” of the document with example requirements for scanning, coding, data collection and litigation support services. There is also a reference Chapter (Chapter 7) for additional links to other useful sites and then the specific details of suppliers and software.

The Guide is based on Andrew Haslam’s general experience in the marketplace, also drawing from a number of vendor procurement exercises. The information on firms and software tools has been provided by the organizations themselves, with moderation from the author.  As in previous editions, Andrew sprinkles boxes throughout the guide that are notes, best practice recommendations and warnings (which are designated by a bomb with a lit fuse icon) to help provide guidance to readers for best practices.

There have been 43 modifications to the entries, with the Guide showing 98 (the same as last year) suppliers and 68 (down from 73 last year) products.  If you provide both services and software, you’re listed in both sections.  So, for example, CloudNine (shameless plug warning!) is listed on both page 103 of the document in the suppliers section and page 260 of the document in the software section – needless to say, we have a few more products to report on than last year!

Though the overall number of suppliers has stayed the same, there have been 12 companies leaving the Guide and 12 joining, with three name changes.  Some of the departing companies have been as a result of mergers, others have not supplied updated details and have been removed to keep the content current. The software figures reflect the removal of 11 applications and the arrival of 6 entries into the marketplace.

When it comes to coverage of the providers, the Guide is more than just a cursory listing, it’s a detailed listing that includes a detailed description of their services, providing the buyer with a terrific head start in understanding what each company does and whether their services and/or software might meet their needs.

Andrew is currently employed as the UK eDisclosure Project Manager for Squire Patton Boggs, so, as always, he makes sure to note that all opinion within the Guide is Andrew’s personal viewpoint and does not represent any views, opinions or strategies of Squire Patton Boggs.  The 445 page(!), 18 MB(!!) PDF can be downloaded directly from the Legal IT Insider website here.

So, what do you think?  Are you in the market for an eDiscovery (eDisclosure) provider or solution?  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 Rules Defendant Objections to Discovery Requests Are Too Late, Too Little: eDiscovery Case Law

In Thomas on Behalf of Estate of Thomas v. Bannum Place, Inc., No. 4:17-cv-13492 and No. 4:18-cv-10222 (E.D. Mich. Feb. 6, 2019), Michigan Magistrate Judge Anthony P. Patti granted and denied the plaintiff’s motion to compel in part, ruling that all of the defendant’s objections to the plaintiff’s discovery requests “are WAIVED…because of its failure to timely respond and object to either set of Plaintiff’s discovery requests.”  Judge Patti also granted “reasonable expenses” to the plaintiff in bringing her motion to compel.

Judge’s Ruling

Having considered the motion papers and the oral argument of counsel regarding the defendant’s objections to discovery requests and the plaintiff’s motion to compel, Judge Patti stated:

“All of Defendant Bannum’s objections to Plaintiff’s first and second sets of discovery requests are WAIVED, including objections based on the attorney-client privilege or attorney work product doctrine, because of its failure to timely respond and object to either set of Plaintiff’s discovery requests…Moreover, Defendant not only failed to make timely objections on the basis of privilege or any other bases, but also failed to provide a privilege log or to otherwise meet its burden of establishing the existence of a privilege as to any of the documents at issue. Finally, even to the extent that Defendant has attempted to lodge any untimely objections on the basis of privilege, it has failed to do so “with specificity” and to demonstrate “good cause” for its tardiness, as required by Rule 33(b)(4), and failed to “state whether any documents are being withheld on the basis of that objection[,]” as required by Rule 34(b)(2)(C).”

Judge Patti also ordered the defendant (which had previously served unsigned responses to Plaintiff’s first set of interrogatories) to “serve signed, sworn responses to Plaintiff’s first set of interrogatories by February 19, 2019, without objections, all objections having been waived pursuant to Fed. R. Civ. P 33(b)(4).”  He also ruled on several specific discovery requests still at issue that had been agreed to at a hearing.

Judge Patti also noted that “Rule 37 ‘provides generally for sanctions against parties or persons unjustifiably resisting discovery’” and stated that “Plaintiff is entitled to her reasonable expenses incurred in bringing her motion to compel, because the motion was necessary, Defendant’s failure to timely respond to discovery was not substantially justified, and there are no other circumstances that make an award of expenses unjust. Because the motion was granted in part, with Plaintiff obtaining nearly all of the relief sought, the Court will apportion the award and reduce it by fifteen percent, after calculating the total reasonable attorney fee associated with this motion.”  As a result, Judge Patti ordered the plaintiff to “submit a bill of costs, or stipulated bill of costs, by February 19, 2019 for time incurred ‘for the motion,’ including time drafting the instant motion to compel, reply, and the joint statement, and time traveling to and from and spent attending the hearing”.

So, what do you think?  Should untimely objections always be waived or should special circumstances be considered?  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.

It’s Time for the EDRM 2019 Workshop and Forum at Duke Law School: eDiscovery Best Practices

Two days, two posts about eDiscovery education and best practices at law schools!  Yes, it’s time for the annual Duke/EDRM Workshop in Durham, NC, later this month.  And, you don’t have to be a member of Duke/EDRM to attend!

The annual Duke/EDRM workshop/forum will be held this year on May 15-17.  It brings together highly motivated judges, practitioners, consultants, service providers, and software vendors to work collaboratively on exciting and challenging eDiscovery and other IT projects that impact the industry and the profession.   The group critically examines and discusses pending projects, providing their collective wisdom and guidance on the projects’ challenges, problems, and issues, and proposes new projects.

Over the past year, Duke/EDRM was busy.  TAR Guidelines were approved, a draft of a TAR protocol is reportedly progressing nicely, and more than 250 federal judges responded to a discovery survey administered by EDRM/Exterro.  At the workshop/forum, the leaders of teams handling eight pending projects will seek input and guidance from the group on the biggest challenge, issue, or problem they are encountering.  The projects range from AI, to a compliance code of conduct governing GDPR, to a proportionality template and much more.

Also, Duke/EDRM notes some new activities to the workshop/forum that include 1) A panel of in-house counsel from major corporations (Exxon/Mobil, American Airlines, and GSK) discussing their biggest eDiscovery challenges and how best to work with outside eDiscovery consultants, service providers, and software vendors; 2) A panel of four judges addressing what eDiscovery information is most useful to them and what information they consider to be the least useful; and 3) A review of Herb Roitblat’s FOMO paper, which corroborates the anecdotal experience of TAR users using mathematical and probability equations that null sets rarely include significant new documents.

Speaking of “FOMO”, do you have fear of missing out this year?  If so, you can still register.  The registration fee is $650.  If you’re a current Duke/EDRM member, you can request a promo code for $150 off registration by emailing lora.farmer@law.duke.edu.  If you’re not a member, you can add an annual Duke/EDRM membership for just $50 more when registering for the workshop/forum, for a total payment of $700.

Here’s a link to the workshop main page, the agenda, a list of panelists, a list of materials that will be included, hotel accommodations (the Washington Duke Inn is very nice) and the registration page.

So, what do you think?  Are you going to this year’s Duke/EDRM workshop/forum?  And, have you ever seen more slashes (“/”) in a single blog post?  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.

Ready for In-Depth eDiscovery Training? Head to Georgetown: eDiscovery Best Practices

There are training courses and there are training courses, but there is no more in-depth eDiscovery training course than the Georgetown Law Center eDiscovery Training Academy.  Once again, it is coming up in just over a month.  And, if you hurry, you can save on registration!

The Academy’s full-week curriculum is intended to give you a “total immersion” in the subject of eDiscovery, featuring a highly personalized and interactive instructional approach designed to foster an intense connection between all students and a renowned faculty.  And, it has been designed by experts to be a challenging experience leading to a comprehensive understanding of the discipline. As the Academy summary notes, it is demanding, but it will be one of your most exciting and successful learning experiences if you are determined to invest the time and effort.

Renowned faculty?  Check.  How about people like Craig Ball, Maura Grossman, Mark Sidoti, Tom O’Connor, Hon. John M. Facciola (Ret.) and Virginia Magistrate Judge Hon. John Anderson?

Total immersion?  Check.  How about topics ranging from Introduction to Electronically Stored Information to Proportionality to Ugly Truths about Electronic Search to Meet and Confer Strategies?  There’s also Authentication and Admissibility, Forms of Production, Preservation and Sanctions and Technology-Assisted Review (“TAR”) for eDiscovery.  Even Mobile Data Preservation, Rule 502 and Ethics.  With plenty of exercises to test your knowledge and Mock 26(f) Conferences on the last day.  And, there is CLE credit to boot!

Here’s a link to the complete agenda for the Academy.

The Academy runs from Sunday, June 2, 2019 to Friday, June 7, 2019 at the Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001.  With regard to the cost for participating, the Regular Registration price is $3,650 for the entire week; however, if you register by tomorrow, it is discounted to $3,450.  If you’re Georgetown Law Alumni ($3,150) or a Government employee ($2,650), it’s even cheaper – for a full week of instruction.  Scholarships can also be requested by Monday, May 13.  If you want to achieve “total immersion” in all educational topics eDiscovery – this is the place to do it!

So, what do you think?  Have you attended the Georgetown Law Center eDiscovery Training Academy in the past?  If so, what did you think of it?  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.