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Electronic Discovery

University of Florida Brings eDiscovery Teachings to a Chinese University: eDiscovery Best Practices

Needless to say, eDiscovery is becoming more global than ever and we’ve certainly seen a lot of instances where non-U.S. legal practitioners have to not only better understand U.S. discovery obligations, but also understand the methodologies and technologies associated with managing eDiscovery.  One U.S. university recently spent some time bringing some of those teachings to a university in Nanjing, China.

As covered in Legaltech News® (University of Florida Brings E-Discovery Expertise Abroad With Chinese University Partnership, written by Rhys Dipshan), the University of Florida’s Levin College of Law recently partnered with Southeast University in Nanjing, China, to launch an intensive two-week course aimed at educating local law students on U.S. eDiscovery laws and practices. William Hamilton, legal skills professor and executive director of the University of Florida’s E-Discovery Project, led the course, which took place at Southeast University during the last two weeks of August.

Transmitting Hamilton’s wealth of eDiscovery knowledge to the 68 undergraduate and graduate Chinese students who attended the class, and who were all used to a vastly different legal culture, was a challenge. “The e-discovery process is not intuitive to Chinese students,” Hamilton said.  So, he had an idea about how to explain this complex subject matter to e-discovery novices: stick to concrete, real-life examples.

Hamilton designed the two-week course around a fictional cross-border e-discovery case. “We set up the course as though we were in the trenches, and I think that was very helpful for the students to see the context right away, instead of starting with relatively abstract concepts.”  As a result, the cross-border eDiscovery case that Hamilton created was loosely based on actual litigation he handled years ago as a practicing attorney in Florida and involved two fictional companies: “U.S. Computer” and “Nanjing Electric.”

“I created a mock dispute in which Nanjing had manufactured motherboards and shipped those to U.S. Computer to be incorporated into a product that was then sold to consumers. The consumer product, however, allegedly had defects in it, and the U.S. consumers were complaining and returning the product. So U.S. computer sued Nanjing Electric for breach of contract.”

Hamilton asked the class to pretend they were the law firm representing “Nanjing Electric,” and explained the U.S. legal process and e-discovery obligations they would face. From there, he moved on to teaching the students how to use e-discovery tools in preparation for the pretrial discovery.

There are talks between the two schools to extend their partnership and Hamilton noted that Southeast University is “very eager to continue to expand the relationship.”  In fact, given that eDiscovery expertise is fast becoming a much-needed skill in China, he expects such collaborations to become more common in the future.

So, what do you think?  Is your organization dealing with more cross-border eDiscovery?  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.

Houston, We Have an Adverse Inference Finding: eDiscovery Case Law

In Hernandez, et al. v. City of Houston, No. 4:16-CV-3577 (S.D. Tex. Aug. 30, 2018), Texas District Judge Kenneth M. Hoyt, finding that the defendant “intentionally destroyed” evidence by wiping the hard drives of several custodians no longer employed by the City, determined “that entering an adverse inference finding is appropriate” against the defendant.

Case Background

In this case regarding alleged illegal detainment of the plaintiffs in City jail where each of the plaintiffs contends that he was held in the City’s jail for more than 48 hours without a judicial determination or a probable cause hearing, the Court entered an agreed ESI order in November 2017, which promoted cooperation between the parties (including agreement on search terms) and designated thirteen specific custodians, whose records the plaintiffs were seeking.  Weeks after the ESI Order, the defendant had still not supplemented missing metadata from an earlier production to bring the production into compliance with the Court’s Order and, after several meet and confers by phone, defendant’s counsel requested an in-person meeting.

On December 13, 2017, during that in-person meeting, the defendant represented that (i) it had not interviewed any of the custodians listed in the ESI Order, (ii) it had not collected documents from any of the custodians listed in the ESI Order and (iii) it had “wiped” the hard drives of six of those custodians no longer employed by the defendant.  At that meeting, the plaintiffs offered to provide names of vendors to help with document processing and review and offered to pay a substantial portion, if not all, of the costs that might be incurred. The defendant refused this offer and missed its December 15, 2017 deadline to certify document production was complete.

In January 2018, the defendant represented that it had collected 72,000 documents, but had yet to review them, despite the passage of the discovery deadline. By February 28, 2018, when the plaintiffs moved to compel production, the defendant had only produced 126 files from the Mayor’s office – all of which was unresponsive to the plaintiffs’ document requests.  In April 2018, the defendant claimed it had collected 2.6 million documents by running “word searches based on the ESI Protocol” and it would take 17,000 hours to review all of those documents.  Based on these representations, the plaintiffs agreed to provide a narrower set of search terms.  On April 10, 2018, the Court ordered the defendant to “produce all non-privileged documents responsive to the plaintiffs’ requests for production nos. 1-4, 8 and 9 in accordance with the Court’s November 8, 2017, ESI Order” and also notified the defendant that “[f]ailure to comply with this Order will result in sanctions, including but not limited to monetary sanctions and an adverse inference instruction”.

When the defendant ran the plaintiffs’ narrowed search terms, it retrieved 48,976 documents.  However, it then proceeded to unilaterally apply its own search terms, which retrieved 9,992 documents, which were reviewed for responsiveness.  The defendant produced only 368 responsive documents in response to the April 10 court order.

Judge’s Ruling

With regard to the wiped drives for the six custodians no longer employed by the defendant, Judge Hoyt stated: “Those hard drives contained ESI that should have been preserved by the City as soon as it anticipated litigation, and definitely after the instant lawsuit was filed. The City acknowledged its “clear obligation” to preserve all responsive documents after the litigation was pending. Yet the City failed to take reasonable steps to preserve the data on the hard drives and intentionally wiped the drives. The Court determines that the information on the hard drives cannot be restored or replaced through additional discovery.”

Judge Hoyt also found that the defendant had “Made Misrepresentations to the Court About Its Flawed Discovery Process”, indicating that it: 1) “represented that it needed to review 2.6 million documents”, 2) “did not review the 78,702 documents generated by the plaintiff’s April 2018 search terms”, 3) “represented that it had issued a litigation hold” and 4) “obfuscated the status of the hard drives”.

As a result, Judge Hoyt ruled, as follows:

“Federal Rule of Civil Procedure 37(b)(2) provides that an order establishing contested facts as true is an appropriate remedy when a party violates a discovery order. See Rule 37(b)(2)(i)-(ii). This type remedy cures the violation without inflicting additional costs on the parties, and for that reason, the Court determines, in its discretion that entering an adverse inference finding is appropriate…

Therefore, the Court HOLDS that the following inference is appropriate based on the City’s conduct:

It is established that (a) throughout the class period, the City of Houston had a policy of not releasing warrantless arrestees who had not received neutral determinations of probable cause within the constitutionally required period of time; (b) throughout the class period, the City’s policymakers were aware of this policy; and (c) the City’s policymakers acted with deliberate indifference to the unconstitutional policy and the constitutional violations that resulted.”

So, what do you think?  Was the adverse inference sanction appropriate in this case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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 You Prepare for Litigation Before it Happens: eDiscovery Webcasts

Information Governance (IG) has always been part of the eDiscovery landscape and it has always been important for reducing the population of potentially responsive electronically stored information (ESI) that might be subject to litigation by helping organizations adopt best practices for keeping their information “house in order”. But now with an increased concentration on the two-fold concerns of privacy and security, IG has become more important than ever.  Here’s a webcast that can enable you to leverage IG best practices to prepare for litigation before it happens.

Wednesday, September 26th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Preparing for Litigation Before it Happens. In this one-hour webcast that’s CLE-approved in selected states, we will explore the implementation of Information Governance best practices to help organizations better prepare for litigation before it happens. Topics include:

  • Minority Report: Pre-Case for Litigation Avoidance
  • What Information Governance is and What it Isn’t
  • General Principles for Information Governance
  • Who Uses Information Governance?
  • IG Considerations and Issues
  • Basic Information Governance Solutions
  • Information Governance vs. Analytics
  • How Privacy/Security Has Impacted the Importance of an IG Program
  • Recommendations for Implementing an IG Program

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to know how to leverage IG best practices to prepare for litigation before it happens, this is the webcast for you!

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

So, what do you think?  Is your organization as prepared as it could be for impending litigation?  If not, please join us!  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.

Court Compels Non-Party Insurance Agents to Produce Text Messages in TCPA Case: eDiscovery Case Law

In Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018), Missouri District Judge Rodney W. Sippel granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting the agents’ argument that compliance with the subpoenas would violate their Fifth Amendment right against compelled, self-incriminating testimony.

Case Background

In this Telephone Consumer Protection Act (TCPA) case, the plaintiff alleged that, at the direction of the defendant insurance companies, non-party Farmers Insurance agents James Lohse and Joe Ridgway sent text messages to her without her consent, in violation of the TCPA. The plaintiff sought to represent similarly situated plaintiffs who received messages without their consent marketing certain Farmers Insurance products.

To obtain information on potential plaintiffs and the alleged TCPA violations generally, the plaintiff served subpoenas on the non-party agents, which requested that the agents produce phone numbers of potential customers to which text messages were sent; the content of those text messages; any contracts, correspondence, invoices, and payment records the agents have with other entities that facilitated the alleged spam texts or provided the potential customers’ numbers; documents concerning any purchase of an insurance policy by the recipients of these texts; and any documents reflecting that the recipients of these texts consented to receive those messages.

The non-party agents objected and refused to produce documents responsive to these requests, initially arguing that such discovery was inappropriate until the parties’ resolved an initial question of consent. After the defendants’ declined to file a motion summary judgment on the issue of consent, the agents changed their objections, stating that compelling their production of the requested records would violate their Fifth Amendment Right against self-incrimination, and that the plaintiff’s requests were overly broad and burdensome. The plaintiff moved to compel the production, and the non-party agents moved for a confidentiality order.  The non-party agents argued that their answers to the plaintiff’s production requests would tend to incriminate them because the call logs in question could show a violation of 47 U.SC. § 227(b)(1).

Judge’s Ruling

Noting that the Fifth Amendment “privilege applies specifically to testimony, and not the production of documents, per se”, Judge Sippel stated that “where the documents themselves are incriminating, but their possession, control, and authenticity does not incriminate, the privilege would not apply.”  Continuing, he said:

“In this circumstance, the Agents’ mere possession, production, or authentication of call logs and other documents is not the act that would tend to incriminate them. The Fifth Amendment protection against self-incrimination accordingly does not protect against disclosure of the requested documents because of the ‘settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.’…The Agents also argue that Gould’s production request is overbroad and burdensome. I disagree. The documents that Gould requests all pertain to whether the Agents texted potential consumers without their consent, and if so, how they did that.”

As a result, Judge Sippel granted the plaintiff’s motion to compel and denied the non-party agents’ motion for a confidentiality order.

So, what do you think?  Should production of potentially incriminating documents be protected under the Fifth Amendment?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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

Here’s Another Survey to Check Out on the eDiscovery Uses and Capabilities of Office 365: eDiscovery Best Practices

A survey a day keeps the…blog posts written!  Yesterday, we covered the survey on Rob Robinson’s Complex Discovery site regarding predictive coding technologies and protocols.  Today, here is another survey worth participating in regarding the use of Microsoft Office 365’s eDiscovery capabilities.

On his Techno Gumbo blog, my colleague Tom O’Connor poses the question: Can eDiscovery Really Be Done Within Microsoft Office 365? Help Us Find Out. (Okay, that’s a question and a statement, but anyway…)

Tom is working with Don Swanson, president of Five Star Legal, to find out just how many firms out there are actually using Office 365 for eDiscovery. Most people know Office 365 as a software-as-a-service (SaaS) offering of email, word processing, spreadsheet and presentation applications. Office 365 and the Microsoft Cloud are not only used by most of the Fortune 500, it’s also used by many federal, state and local governments and educational institutions – and a growing number of businesses of any size.  To that end, they have come up with the O365 Challenge, a successor to the 2009 EDna Challenge posed by noted eDiscovery thought leader Craig Ball (which he reprised in 2016) and Tom’s 2011 follow up to that, the Ernie Challenge.

Like EDna and Ernie, the matter in question still has a budget restriction but all relevant data now resides within Microsoft Office 365.  Tom and Don really want to know if Office 365’s eDiscovery capabilities are for real, whether litigants can achieve the goals outlined in EDna and Ernie within Office 365 and whether big case eDiscovery processes can be handled within Office 365 on a small budget.

As with any good challenge, Tom provides on his blog the hypothetical scenario and describes the challenge, which includes several goals identified by the company general counsel noted in the hypothetical.  Then, Tom and Don have built a survey which asks about eDiscovery capabilities in Office 365, including each of the phases of the EDRM model.

Tom provides a link to the five-question survey in the post in SurveyMonkey (check the post link above to get it) and survey responses submitted before October 15 will be included in the white paper detailing the Microsoft Office 365 Challenge findings which Don and Tom will publish sometime in Q4.  You can also just send your comments directly to Don or Tom to include them in the final report.

While more and more organizations are using Office 365, I’m not sure they are fully using the eDiscovery capabilities of it, nor am I sure that they are finding those capabilities sufficient to accomplish what they need to accomplish to meet their eDiscovery burdens and goals.  I’ll be looking forward to the white paper to see what people have to say about it.

P.S.: For more about Tom and his latest video with Craig regarding Forensic Examination Protocol, click here.

So, what do you think?  Does your organization use Office 365?  If so, does it use its eDiscovery capabilities and find them useful?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Microsoft Corporation

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 an eDiscovery Professional Interested in Predictive Coding, Here is a Site You May Want to Check Out: eDiscovery Trends

On his Complex Discovery site, Rob Robinson does a great job of analyzing trends in the eDiscovery industry and often uses surveys to gauge sentiment within the industry for things like industry business confidence.  Now, Rob is proving and overview and conducting a survey regarding predictive coding technologies and protocols for representatives of leading eDiscovery providers that should prove interesting.

On his site at Predictive Coding Technologies and Protocols: Overview and Survey, Rob notes that “it is increasingly more important for electronic discovery professionals to have a general understanding of the technologies that may be implemented in electronic discovery platforms to facilitate predictive coding of electronically stored information.”  To help in that, Rob provides working lists of predictive coding technologies and TAR protocols that is worth a review.

You probably know what Active Learning is.  Do you know what Latent Semantic Analysis is? What about Logistic Regression?  Or a Naïve Bayesian Classifier?  If you don’t, Rob discusses definitions for these different types of predictive coding technologies and others.

Then, Rob also provides a list of general TAR protocols that includes Simple Passive Learning (SPL), Simple Active Learning (SAL), Continuous Active Learning (CAL) and Scalable Continuous Active Learning (S-CAL), as well as the Hybrid Multmodal Method used by Ralph Losey.

Rob concludes with a link to a simple three-question survey designed to help electronic discovery professionals identify the specific machine learning technologies and protocols used by eDiscovery providers in delivering the technology-assisted review feature of predictive coding.  It literally take 30 seconds to complete.  To find out the questions, you’ll have to check out the survey.  ;o)

So far, Rob has received 19 responses (mine was one of those).  It will be interesting to see the results when he closes the survey and publishes the results.

So, what do you think?  Are you an expert in predictive coding technologies and protocols?  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 Battle to Recognize Bloggers at ILTACON: eDiscovery Trends

If you attended ILTACON last month, you probably enjoyed another great conference.  But, behind the scenes, the show hit a few bumps, especially for the blogger community.  Oh, and the CEO left before the show too.

Before the show on August 9, Bob Ambrogi detailed the departure of ILTA’s CEO Dan Liutikas in his LawSites blog post titled Déjà Vu All Over Again that revisited recent management reshuffling of key ILTA personnel the past three years right around conference time.  Bob’s post included verbiage from a letter sent to ILTA partners by Angela Dowd, president of the ILTA board to announce the departure of Liutikas.

That’s just the CEO.  But, then, there was the whole blogger “fiasco” this year.  Now, that’s serious!  :o)

My colleague, Tom O’Connor detailed the leadership issues and also the blogger issue in his blog post (WHAT IN THE WIDE WIDE WORLD OF SPORTS IS GOING ON AT ILTA?) on his Techno Gumbo site back on 8/13.  As Tom noted, “a number of prominent bloggers who had been long time supporters of the group and its conference were surprised to find that their application for a press pass to attend and report on the show were denied.”

Those bloggers included longtime ILTA participants like Craig Ball, Chris Dale, Kevin O’Keefe of LexBlog and even Tom himself.  For the first time in several years, I did not apply for a press pass as I had a full schedule of meetings and didn’t feel like I would attend enough sessions to make it worthwhile (I still covered the show on this blog, BTW).

Apparently, to qualify for a press pass this year, you had to “work for a publication, news service, broadcast outlet or news site that is regularly issued and published primarily for the dissemination of news, and operates independently from any commercial, political, government or special interest. Only media whose primary responsibility is the coverage of the legal, legal technology, technology industry, workforce tech issues, and related news will be considered for credentials.”

Which eliminated a lot of people.  Would probably have eliminated me if I had applied.  Kevin also covered the topic on his Real Lawyers blog (Legal bloggers are part of the press – for conferences too).  As he noted, “Apparently the goal in declining press passes to the organization’s members is to force those members who blog to pay registration fees and to blog favorably of the conference and the association.”

No, what it does instead is cause them to stay home and not attend – at least in many cases.

Well, Tom’s post was picked up – a lot.  People took notice of ILTA’s issues – at both the leadership level and with regard to its blogger policy.

And, here’s the good news: ILTA seems to have learned from its mistakes on that front.  As Kevin noted in his blog: “During the conference, ILTA reached out to bloggers and other members of the press to formulate a more progressive policy when it came to bloggers… My understanding is that ILTA attempted to work with bloggers who attended so they were included as press and is now looking to bloggers to help formulate a new policy going forward.”

Live and learn!  ILTACON is a great conference every year – hopefully, next year, the behind the scenes issues will take a back seat to the quality of the conference overall.

So, what do you think?  Did you enjoy ILTACON this year?  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.

Time for Another Relativity Fest? Giddyup!: eDiscovery Trends

We’re about three weeks out from the 2018 Relativity Fest conference, conducted every year by Relativity, which is three weeks earlier than last year!  I guess they couldn’t wait!  Anyway, Relativity Fest is an annual conference designed to educate and connect the eDiscovery community and features panel discussions, hands-on labs, breakout sessions, and insights from Relativity staff, Relativity users, and industry leaders.  It’s a big show with over 1,800 attendees and a lot going on.

This year, Relativity Fest is September 30 through October 3 in Chicago at The Hilton Chicago (which was the largest hotel in the world when it opened in 1927 and cost ten times more to build than the original Yankee Stadium).  As a development partner in the Relativity ecosystem, CloudNine will once again be the conference and will be there to provide demonstrations of our Outpost for Relativity capability that automatically ingests and loads data into Relativity based on your specified criteria.

Also, I will be covering the show for eDiscovery Daily, and I’m delighted to say that I will also once again be speaking at a session at the conference.  My session is Social Media Law and Practice, on Tuesday, October 2 at 3:40 pm, with Phil Favro, Consultant with Driven, Amy Sellars, Associate General Counsel with Wal-Mart and Gareth Evans, Partner with Redgrave LLP.

In addition to that session, there are several other interesting looking sessions at the conference.  No “yada, yada, yada” here.  Here are a few of them:

  • Beer and Basics: e-Discovery 101 and Relativity Fundamentals, Sunday (9/30) at 5:30pm with Constantine Pappas of Relativity, Peggy Gianuca of The Walt Disney Company, Michael Quartararo of eDPM Advisory Services, Tessa Jacob of Husch Blackwell and my colleague Tom O’Connor of Gulf Coast Legal Tech Company. Starting an eDiscovery than beer and wine?  That’s mighty fine!
  • The Internet of Things from a Legal and Regulatory Perspective, Monday (10/1) at 11:00am, a panel led by the ubiquitous David Horrigan (who once again seems to be leading almost every educational panel) that includes Gail Gottehrer of Akerman, Ed McAndrew of Ballard Spahr LLP and noted eDiscovery thought leader Craig Ball. Get Out!
  • The Judicial Panel, Monday (10/1) at 1:00pm, with David moderating discussions with Judge Nora Barry Fischer, Judge Xavier Rodriguez, New York Supreme Court Justice Tanya Kennedy and retired Judge Andrew Peck (now Senior Counsel at DLA Piper) – none of whom is a close talker or a low talker – to discuss the latest legal developments in eDiscovery.
  • International e-Discovery and Data Protection, Tuesday (10/2) at 8:30am. Chris Dale of the eDisclosure Information Project leads the discussion on a hot topic this year with GDPR.  Serenity now!
  • ILTA and Relativity Fest Present Finding the Fun in Writing Fundamentals, Tuesday (10/2) at 11:10am, with David moderating a panel that includes Judge Peck and Gary Kinder of WordRake. Hey, after 2,000 or so blog posts, maybe I can finally learn how to do it right!
  • e-Discovery Law and Practice: Case Studies in Cooperation, Wednesday (10/3) at 9:00am, David leads a panel with Chad Roberts and Suzanne Clark of PLLC, Kelly Twigger of ESI Attorneys and Kathleen Porter Kristiansen of Advanced Discovery.

To register to attend Relativity Fest, click here.  It’s not too late!  And, the Cubbies appear headed for the baseball playoffs again – though the Astros are going to win it all again this year.  Hey, I was right when I predicted it last year!

BTW, the Seinfeld references are at the request of David Horrigan, who appreciated my Festivus reference last year.  Cosmo Kramer would be proud.  Though Relativity will be skipping the “airing of grievances” this year (I think)… :o)

So, what do you think?  Are you attending Relativity Fest this year?  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 that Defendant’s Boilerplate Objections Results in Waiver of Those Objections: eDiscovery Case Law

In Halleen v. Belk, Inc., No. 4:16-CV-55 (E.D. Tex. Aug. 6, 2018), Texas District Judge Amos L. Mazzant, III granted the plaintiffs’ motions in part, ruling that the defendant had waived its objections to the plaintiffs’ RFPs and Interrogatories by including “subject to” or boilerplate language in its responses and also granted the plaintiffs’ request for ESI for identified corporate custodians and 30(b)(6) witnesses.

Case Background

In this Fair Labor Standards Act (“FLSA”) conditionally classified collective action against the defendant over failure to pay overtime compensation, the plaintiffs filed a Motion to Compel Production of Documents and Electronically Stored Information, and Proper, Complete Answers to Interrogatories in March 2018.  In their motion to compel, the plaintiffs requested that the Court compel the defendant to (1) produce all documents responsive to plaintiffs’ Requests for Production (“RFP”), (2) provide complete answers to all Interrogatories, and (3) search and collect, via specified search terms and parameters, all electronically stored information (“ESI”) germane to identified corporate custodians and 30(b)(6) corporate representatives.

The plaintiffs argued that the defendant’s objections to their RFPs and Interrogatories were “deficient, inapplicable, and/or without merit”, but the defendant, whose responses and objections consisted of assertions of privilege or contain “subject to” or boilerplate language, responded that its objections were not only appropriate but necessary to protect itself from Plaintiffs’ abusive discovery requests.  The plaintiffs claimed that the defendant failed to provide a privilege log accompanying its objections, but the defendant contended that it was not withholding any information on the basis of privilege. The plaintiffs also sought an order compelling the defendant to produce ESI for identified corporate custodians and 30(b)(6) witnesses, referencing an exhibit which list search terms, sample percentages, and specific custodians.  In response, the defendant stated that the plaintiffs’ suggested search terms and requests were overly broad and contended that the parties were still working on agreed search terms and have yet to reach an impasse warranting a motion to compel.

Judge’s Ruling

With regard to the defendant’s objections, Judge Mazzant ruled: “The Court finds that Defendant’s inclusion of ‘subject to and without waiving these objections’ is not supported by the federal rules and goes against the purposes of a just, speedy, and inexpensive resolution…Further, by answering questions in such a manner Defendant fails to specify the scope of its answer in relation to the request. This makes it impossible for Plaintiffs or the Court to assess the sufficiency of the response. Therefore, Defendant has waived each objection by including ‘subject to’ or boilerplate language in its responses…As such, Defendant’s failure to specify specific grounds in the objections results in waiver of those objections…As a result, Defendant is ordered to provide amended responses as discussed below.”

With regard to the plaintiffs motion to compel production of specified ESI, Judge Mazzant ruled: “The Court finds that Plaintiffs’ request for ESI as specified in Exhibit 1 to its Reply is appropriate and should be granted. Although Defendant asserts that the parties are not at an impasse, the Court finds that given the ongoing discovery disputes and inability to cooperate the requested relief is necessary. Plaintiffs further request an order requiring Defendant to produce a randomized five percent of content on a share drive from 2013 to the present regarding various divisions of employees, including STMs. Because this request is raised for the first time in Plaintiffs’ reply, the Court declines to grant such relief at this time. Rather, the Court encourages Plaintiffs to confer with Defendant to reach a common ground on the amount of share drive that needs to be produced and for which specific divisions.”

As a result, the defendant was ordered to: 1) provide a privilege log for each assertion of privilege made within seven days, 2) serve upon plaintiffs’ counsel amended, corrected and complete sets of answers to plaintiffs’ Interrogatories and Requests for Production and 3) produce, in TIFF format, the ESI requested by the plaintiffs within two weeks.

So, what do you think?  Should parties be allowed to correct their “boilerplate” objections before they are waived?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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

California’s AG is Not Happy with the State’s New Consumer Privacy Act: Data Privacy Trends

As I noted a couple of months ago, 2018 is certainly on its way to becoming the year of data privacy rights for the individual.  And, back in June, the California Consumer Privacy Act of 2018 was approved unanimously by the state Senate and Assembly and was signed by Gov. Jerry Brown.  But, California’s AG has just ripped lawmakers for ‘unworkable’ provisions in the new law.

As discussed in Legaltech® News (California AG Rips Lawmakers for ‘Unworkable’ Provisions in New Data Privacy Law, written by Mike Scarcella), California Attorney General Xavier Becerra lashed out at lawmakers for imposing “unworkable obligations and serious operational challenges” on his office by effectively making him the chief enforcer of the new law.

In an August 22 letter to legislators who helped get the law passed in June, Becerra complained that his office is not equipped to handle all the related duties, including quickly drafting regulations and advising businesses about compliance with the California Consumer Privacy Act, or CCPA.

“Failure to cure these identified flaws will undermine California’s authority to launch and sustain vigorous oversight and effective enforcement of the CCPA’s critical privacy protections,” Becerra wrote in the letter.  Becerra also questioned the legality of the civil penalties included in the new law, which he said improperly modified the state’s Unfair Competition Law, or UCL.

“The UCL’s civil penalty laws were enacted by the voters through Proposition 64 in 2004 and cannot be amended through legislation,” Becerra wrote. The data-privacy law’s “constitutional infirmity” can be cured “by simply replacing the CCPA’s current penalty provision with a conventional stand-alone enforcement provision” that does not purport to change the Unfair Competition Law.

Lawmakers tried to address some of the attorney general’s concerns in clean-up legislation that was pending Wednesday in the Assembly. One bill, SB 1121, drops a requirement in the Consumer Privacy Act that consumers must first notify the attorney general’s office before suing over a data breach. The pending legislation recasts the civil penalty provisions and delays enforcement of the new law until six months after the attorney general publishes new regulations or July 1, 2020—whichever is sooner.

A separately pending budget bill would also appropriate $700,000 to Becerra’s office for help drafting and enforcing the new regulations.  But, the changes do not include a broader private right of action—sought by the attorney general—that would shift the litigation burden to consumers. Such a provision would have attracted fierce opposition from business groups that oppose any expansion of plaintiffs’ ability bring class actions and individual suits.

Becerra’s beefs with the Consumer Privacy Act foreshadow the fights that are looming over the state’s sweeping digital information law as interests, including those in government, push to alter its reach and enforcement before it goes into effect in 2020.  And, the business lobby is already pushing to narrow what they have to disclose to consumers about information that is collected about them. Companies are also lobbying the federal government for industry friendly rules that would preempt California’s new law.  It looks like California’s new privacy law may look a bit different when it goes into effect in January 2020 – if that timeline still holds.

So, what do you think?  Will California’s privacy law still hold as is?  Or will it be changed significantly?  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.