Electronic Discovery

If You’re Going to Store Cookies, EU Court Says You Need the Users’ Active Consent: Data Privacy Trends

After two weeks in Italy, of course my first post back had to be a post about Europe, right?  ;o)  Regardless, while I was out last week, a notable decision was announced by the Court of Justice of the European Union which might impact a few people (i.e., anyone from the EU who accesses websites).

Anyway, as covered in Rob Robinson’s terrific Complex Discovery blog last week (Storing Cookies Requires Internet Users’ Active Consent Says Court of Justice of the European Union), in Case C-673/17, Bundesverband der Verbraucherzentralen und Verbraucherverbände ̶ Verbraucherzentrale Bundesverband eV v Planet49 GmbH, the Court of Justice of the European Union decided that the consent which a website user must give to the storage of and access to cookies on his or her equipment is not validly constituted by way of a prechecked checkbox which that user must deselect to refuse his or her consent.

Per the press announcement from the Court of Justice of the European Union, the German Federation of Consumer Organisations challenged the use by the German company, Planet49, of a pre-ticked checkbox in connection with online promotional games, by which internet users wishing to participate consent to the storage of cookies before the German courts.  As a result, the Bundesgerichtshof (Federal Court of Justice, Germany) asked the Court of Justice to interpret the EU law on the protection of electronic communications privacy.  P.S., don’t ask me to pronounce some of these words… ;o)

That decision is unaffected by whether or not the information stored or accessed on the user’s equipment is personal data. EU law aims to protect the user from any interference with his or her private life, in particular, from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge.

The Court notes that consent must be specific so that the fact that a user selects the button to participate in a promotional lottery is not sufficient for it to be concluded that the user validly gave his or her consent to the storage of cookies.

Furthermore, according to the Court, the information that the service provider must give to a user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies.

Interesting data privacy developments continue that will certainly shape how we not only share information, but even use websites going forward.  It will be interesting to see what the landscape for internet use looks like a few years from now.

BTW, as noted above, I’ve been gone for two weeks, so I want to give a BIG THANKS to Tom O’Connor for his terrific white paper on 30(b)(6) witness depositions that we were able to cover as a six-part series on our blog for the past two weeks.  So, instead of giving you the “best of eDiscovery Daily” these past two weeks, we were able to give you new content!

Also, BTW, Complex Discovery is currently conducting its Fall 2019 eDiscovery Business Confidence Survey.  This is the sixteenth quarterly eDiscovery Business Confidence Survey conducted by Complex Discovery.  All questions are multiple-choice, and the entire survey can be completed in about two minutes, so please check it out and feel free to participate.

So, what do you think?  Will this ruling affect how websites request consent for cookies?  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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Six

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, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday, the third part was last Friday, the fourth part was Monday and the fifth part was Wednesday, here’s the sixth and final part.

Conclusions

The rule requires that the designated witness must be able to testify to the knowledge of the entire company on every area designated in your deposition notice. Further, the corporation must produce as many deponents as is necessary to respond to the areas of inquiry set out in the deposition notice. So, the notice should be carefully crafted and specific as to areas of inquiry.

On the other side, the corporation may designate more than one deponent, but it must clearly identify them and describe the areas on which each one will testify.  The deponents need not have firsthand knowledge of the events in question, but if they do not the corporation must provide them with the information necessary to provide “complete, knowledgeable, and binding answers on behalf of the corporation.”

Perhaps the most comprehensive decision on depositions of corporate defendants under Rule 30(b)(6) is QBE Insurance Corporation v. Jordan Enterprises, 277 F.R.D. 676, 687 (2012). In his opinion, Magistrate Judge Johnathon Goodman went beyond the ruling in the case and his decision set forth 39 rules for corporate depositions. They are included below for your reference and consideration.

39 Rules for 30(b)(6) Depositions:

  1. The rule’s purpose is to streamline the discovery process. In particular, the rule serves a unique function in allowing a specialized form of deposition. Great Am. Ins. Co. v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 539 (D.Nev.2008).
  2. The rule gives the corporation being deposed more control by allowing it to designate and prepare a witness to testify on the corporation’s behalf. United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.1996).
  3. It is a discovery device designed to avoid the bandying by corporations where individual officers or employees disclaim knowledge of facts clearly known to the corporation. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 361.
  4. Therefore, one purpose is to curb any temptation by the corporation to shunt a discovering party from “pillar to post” by presenting deponents who each disclaim knowledge of facts known to someone in the corporation. Great Am., 251 F.R.D. at 539. Cf. Ierardi v. Lorillard, Inc., No. 90–7049, 1991 WL 66799, *2 (E.D.Pa. Apr. 15, 1991), at *2 (without the rule, a corporation could “hide behind the alleged ‘failed’ memories of its employees”).
  5. Rule 30(b)(6) imposes burdens on both the discovering party and the designating party. The party seeking discovery must describe the matters with reasonable particularity and the responding corporation or entity must produce one or more witnesses who can testify about the corporation’s knowledge of the noticed topics. Great Am., 251 F.R.D. at 539.
  6. The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the corporation, not of the specific individual deponents. A Rule 30(b)(6) designee presents the corporation’s position on the listed topics. The corporation appears vicariously through its designees. Taylor, 166 F.R.D. at 361.
  7. A corporation has an affirmative duty to provide a witness who is able to provide binding answers on behalf of the corporation. Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1147 (10th Cir.2007).
  8. Thus, a Rule 30(b)(6) witness need not have personal knowledge of the designated subject matter. Ecclesiastes, 497 F.3d at 1147; see generally Federal Civil Rules Handbook, 2012 Ed., at p. 838 (“the individual will often testify to matters outside the individual’s personal knowledge”).
  9. The designating party has a duty to designate more than one deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or subpoena. Ecclesiastes, 497 F.3d at 1147; Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C.1989) (duty to substitute another witness as a designee once the initial designee’s deficiencies become apparent during the deposition); Alexander v. F.B.I., 186 F.R.D. 137, 142 (D.D.C.1998).
  10. The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition. Nevertheless, many lawyers issue notices and subpoenas which purport to require the producing party to provide “the most knowledgeable” witness. Not only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule. As noted, the witness/designee need not have any personal knowledge, so the “most knowledgeable” designation is illogical. PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894–95 (7th Cir.2004) (rejecting argument that trial court should not have credited the testimony of a witness who lacked personal knowledge because the witness was a 30(b)(6) witness and “was free to testify to matters outside his personal knowledge as long as they were within the corporate rubric”). Moreover, a corporation may have good grounds not to produce the “most knowledgeable” witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process or the corporation might want to save the witness for trial. From a practical perspective, it might be difficult to determine which witness is the “most” knowledgeable on any given topic. And permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge. For example, if the rule authorized a demand for the most knowledgeable witness, then the requesting party could presumably obtain sanctions if the witness produced had the second most amount of knowledge. This result is impractical, inefficient and problematic, but it would be required by a procedure authorizing a demand for the “most” knowledgeable witness. But the rule says no such thing.
  11. Although the rule is not designed to be a memory contest, the corporation has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects. Great Am., 251 F.R.D. at 540.
  12. The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally known to the designee or to matters in which the designated witness was personally involved. Wilson v. Lakner, 228 F.R.D. 524 (D.Md.2005).
  13. The duty extends to matters reasonably known to the responding party. Fowler v. State Farm Mut. Auto. Ins. Co., No. 07–00071 SPK–KSC, 2008 WL 4907865, at *4 (D.Haw.2008).
  14. The mere fact that an organization no longer employs a person with knowledge on the specified topics does not relieve the organization of the duty to prepare and produce an appropriate designee. Id.; Great Am., 251 F.R.D. at 540; Taylor, 166 F.R.D. at 362; cf. Ecclesiastes, 497 F.3d at 1148 (in “one common scenario,” the corporation designates individuals who lack personal knowledge “but who have been educated about it”) (emphasis added).
  15. Faced with such a scenario, a corporation with no current knowledgeable employees must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge. Great Am., 251 F.R.D. at 540; Federal Civil Rules Handbook, p. 838; see generally Wilson, 228 F.R.D. at 529 (preparation required from myriad sources, including “documents, present or past employees, or other sources”).
  16. In other words, a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary. Wilson, 228 F.R.D. at 529.
  17. As a corollary to the corporation’s duty to designate and prepare a witness, it must perform a reasonable inquiry for information that is reasonably available to it. Fowler, 2008 WL 4907865 at *5; Marker, 125 F.R.D. at 127.
  18. A corporate designee must provide responsive answers even if the information was transmitted through the corporation’s lawyers. Great Am., 251 F.R.D. at 542.
  19. In responding to a Rule 30(b)(6) notice or subpoena, a corporation may not take the position that its documents state the company’s position and that a corporate deposition is there-fore unnecessary. Great Am., 251 F.R.D. at 540.
  20. Similarly, a corporation cannot point to interrogatory answers in lieu of producing a live, in-person corporate representative designee. Marker, 125 F.R.D. at 127.
  21. Preparing a Rule 30(b)(6) designee may be an onerous and burdensome task, but this consequence is merely an obligation that flows from the privilege of using the corporate form to do business. Great Am., 251 F.R.D. at 541; see also Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D.Mass.2001) (review required even if “documents are voluminous and the review of those documents would be burdensome”).
  22. Not only must the designee testify about facts within the corporation’s collective knowledge, including the results of an investigation initiated for the purpose of complying with the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and opinions. Great Am., 251 F.R.D. at 539; Taylor, 166 F.R.D. at 362 (designee presents corporation’s “position,” its “subjective beliefs and opinions” and its “interpretation of documents and events”).
  23. The rule implicitly requires the corporation to review all matters known or reasonable available to it in preparation for a Rule 30(b)(6) deposition. Wilson, 228 F.R.D. at 529 (“good faith effort” to “find out the relevant facts” and to “collect information, review documents and interview employees with personal knowledge”).
  24. If a corporation genuinely cannot provide an appropriate designee because it does not have the information, cannot reasonably obtain it from other sources and still lacks sufficient knowledge after reviewing all available information, then its obligations under the Rule cease. Calzaturficio, 201 F.R.D. at 39; see also Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 76 (D.Neb.1995).
  25. If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely designate additional, supplemental witnesses as substitute deponents. Alexander, 186 F.R.D. at 142; Marker, 125 F.R.D. at 127.
  26. The rule provides for a variety of sanctions for a party’s failure to comply with its Rule 30(b)(6) obligations, ranging from the imposition of costs to preclusion of testimony and even entry of default. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 269 (2d Cir.1999) (affirming order precluding witness five witnesses from testifying at trial); see also Taylor, 166 F.R.D. at 363 (“panoply of sanctions”); Great Am., 251 F.R.D. at 543 (“variety of sanctions”).
  27. The failure to properly designate a Rule 30(b)(6) witness can be deemed a nonappearance justifying the imposition of sanctions. (Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 198 (5th Cir.1993)). See also Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 305 (3d Cir.2000) (a 30(b)(6) witness who is unable to give useful information is “no more present for the deposition than would be a deponent who physically appears for the deposition but sleeps through it”).
  28. When a corporation’s designee legitimately lacks the ability to answer relevant questions on listed topics and the corporation cannot better prepare that witness or obtain an adequate substitute, then the “we-don’t know” response can be binding on the corporation and prohibit it from offering evidence at trial on those points. Phrased differently, the lack of knowledge answer is itself an answer which will bind the corporation at trial. Fraser Yachts Fla., Inc. v. Milne, No. 05–21168–CIV–JORDAN, 2007 WL 1113251, at *3 (S.D.Fla. Apr. 13, 2007); Chick–fil–A v. ExxonMobil Corp., No. 08–61422–CIV, 2009 WL 3763032, at *13 (S.D.Fla. Nov. 10, 2009); see also Ierardi, 1991 WL 66799 at *3 (if party’s 30(b)(6) witness, because of lack of knowledge or failing memory, provides a “don’t know” answer, then “that is itself an answer” and the corporation “will be bound by that answer”).
  29. Similarly, a corporation which provides a 30(b)(6) designee who testifies that the corporation does not know the answers to the questions “will not be allowed effectively to change its answer by introducing evidence at tri-al.” Ierardi v. Lorillard, No. 90–7049, 1991 WL 158911 (Aug. 13, 1991) (E.D.Pa. 1991, at *4).
  30. The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).
  31. If the corporation pleads lack of memory after diligently conducting a good faith effort to obtain information reasonably available to it, then it still must present an opinion as to why the corporation believes the facts should be construed a certain way if it wishes to assert a position on that topic at trial. Taylor, 166 F.R.D. at 362.
  32. There is nothing in the rule which prohibits a corporation from adopting the testimony or position of another witness in the case, though that would still require a corporate designee to formally provide testimony that the corporation’s position is that of another witness. Fraser Yachts, 2007 WL 1113251, at *3.
  33. The rule does not expressly require the designee to personally review all information available to the corporation. So long as the designee is prepared to provide binding answers under oath, then the corporation may prepare the designee in whatever way it deems appropriate—as long as someone acting for the corporation reviews the available documents and information. Reichhold, Inc. v. U.S. Metals Ref. Co., No. 03–453(DRD), 2007 WL 1428559, at *9 (D.N.J. May 10, 2007) (the rule “does not require that the corporate designee personally conduct inter-views,” but, instead, requires him to testify to matters known or reasonably available to the corporation).
  34. Rule 30(b)(6) means what it says. Corporations must act responsibly. They are not permitted to simply declare themselves to be mere document-gatherers. They must produce live witnesses who have been prepared to provide testimony to bind the entity and to explain the corporation’s position. Wilson, 228 F.R.D. at 531; Great Am., 251 F.R.D. at 542 (entitled to “corporation’s position”).
  35. Despite the potentially difficult burdens which sometimes are generated by Rule 30(b)(6) depositions, the corporation is not without some protection, as it may timely seek a protective order or other relief. F.T.C. v. Noble Metals Int’l, Inc., 67 F.3d 766, 772 (9th Cir.1995).
  36. Absolute perfection is not required of a 30(b)(6) witness. The mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation. Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J.2008); Chick–fil–A, 2009 WL 3763032, at *13 (explaining that the corporation need not produce witnesses who know every single factonly those relevant and material to the incidents underlying the lawsuit).
  37. A corporation cannot be faulted for not interviewing individuals who refuse to speak with it. Costa, 254 F.R.D. at 191.
  38. There are certain cases, such as subrogation cases or those involving dated facts, where a corporation will not be able to locate an appropriate 30(b)(6) witness. In those types of scenarios, the parties “should anticipate the unavailability of certain information” and “should expect that the inescapable and unstoppable forces of time have erased items from … memory which neither party can retrieve.” Barron v. Caterpillar, Inc., 168 F.R.D. 175, 178 (E.D.Pa.1996) (concluding that corporation did not act in bad faith when its designee did not remember events from almost thirty years earlier).
  39. A corporation which expects its designee to be unprepared to testify on any relevant, listed topic at the corporate representative deposition should advise the requesting party of the designee’s limitations before the deposition begins. Calzaturficio, 201 F.R.D. at 39.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  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.

Issuing the Hold is Just the Beginning: eDiscovery Throwback Thursdays

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

This post was originally published on March 23, 2012, and concludes our two-part series on this topic.  There is more to litigation holds than just issuing an automated hold, suspending auto-delete programs (including those for text and other messaging apps) and tracking the responses.

Last week, we discussed identifying custodians, preparing a written litigation hold, issuing the hold and tracking responses.  Today, we’ll discuss interviewing hold notice recipients, follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Here are the rest of the best practices for implementing a litigation hold.

Interviewing Hold Notice Recipients: Depending on the case, follow-up interviews (with at least the key custodians) are generally accepted as a best practice and may be necessary to ensure defensibility of the notice.  The point of these interviews is to repeat the duty to preserve, provide a detailed explanation of the requirements of the hold, answer the recipient’s questions (if any), and confirm that the recipient understands and agrees to adhere to the notice. You should keep written records of each of these interviews and document the reasoning for determining which individuals to interview.

Follow-Up on Hold Notices: For a litigation hold plan to be successful and defensible, it needs to include periodic follow-up reminders to recipients of the notices to inform them that the data in question remains under hold until the case concludes. Follow-up reminders could simply be a retransmission of the original notice or they could be a summary of all of the notices the individual has received, if there are multiple cases with holds for that individual. There is no specific requirement on how often the reminders should be sent, but it’s best to send them at least quarterly.  For some cases, it may be necessary to send them monthly.

Release the Hold: Not to be confused with “release the hounds”, it is just as important to inform people when the duty to preserve the data expires (typically, when the case is completed) as it is to notify them when the duty to preserve begins.  Releasing the hold is key to ensure that information doesn’t continue to be preserved outside of the organization’s document retention policies – if it is, it may then become subject to litigation holds in other litigations unnecessarily.  Releasing the hold also helps keep custodians from being overwhelmed with multiple retention notices, which could cause them to take the notices less seriously.  However, the release notification should be clear with regard to the fact that data subject to hold in another matter should continue to be preserved to meet discovery obligations in that matter.

Hold Tracking System: It’s important to have a reliable “system” for tracking litigation holds across all matters within the organization. Depending on your needs, that could be part of the litigation hold tracking solution discussed in last week’s post, or it could even be a simple database or spreadsheet to track the information.  You should keep historical tracking data even for completed matters as that information can be useful in guiding hold issuance on new matters (by helping to identify the correct custodians for new matters that are factually similar or related to current closed or open matters).  At a minimum, a tracking system should:

  • Track responses from individual custodians and identify those who have not yet responded,
  • Track periodic reminder notices and release notices,
  • Provide ability to report a list of people with a duty to preserve for a specific matter as well as all matters for which a person is under retention.

So, what do you think?  Do you have a solid “hold” on your hold process?  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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Five

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, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday, the third part was last Friday and the fourth part was Monday, here’s the fifth part.

Specific Strategies to Consider

Some specific strategies to consider include:

Timing of the Deposition

As mentioned previously, strategic timing of the deposition can help streamline the issues and avoid future claims that discovery sought against the organization is a fishing expedition. To this point, it may be helpful to prepare an issue outline before preparing the deposition notice and using it to decide when to conduct the 30(b)(6) depo.

Do not agree to a question-by-question or objection-by-objection format

Some courts have ruled that a defendant should produce a Rule 30(b)(6) witness to testify on objectionable topics and counsel for the witness could then interpose objections on a question-by-question basis. Other courts have rejected this suggestion, calling it:

  1. A veiled attempt to depose the other party’s attorney. & Exch. Comm’n v. Merkin, 283 F.R.D. 689 (S.D. Fla. 2012), objections overruled, 283 F.R.D. 699 (S.D. Fla. 2012)
  2. An impermissible intrusion into work product & Exch. Comm’n v. SBM Inv. Certificates, Inc., Civil Action No. DKC 06-0866 (D. Md. Mar. 2, 2012)
  3. A violation of privileges and other protections. SEC v Rosenfeld, 97 CIV. 1467 (RPP), 1997 WL 576021, at *2-4 (S.D. Fla. April 18, 2002).

Seeking information about allegations in the complaint

Many courts have ruled that Rule 30(b)(6) depositions are not the proper vehicle for discovering facts about the allegations in a civil enforcement complaint, commenting that contention interrogatories are a more appropriate vehicle for fact discovery. CF, Equal Employment Opportunity Commission v. Texas Roadhouse, Inc., No. 11-11732-DJC, 2014 WL 4471521, (D. Mass. Sept. 9, 2014) and Equal Employment Opportunity Commission v. American International Group, No. 93 CIV 6390 (PKL) RLE, 1994 WL 376052 (S.D.N.Y. July 18, 1994).

Seeking discovery of third-party information

Defendants in an enforcement investigation usually recognize the State has gathered facts from third parties as part of their investigation. Rather than invest effort into written discovery or third-party depositions, some defendants attempt to elicit the State’s work product through 30(b)(6) depositions.

Topics that seek information regarding the knowledge of third parties, such as complaint information, persons and documents identified in initial disclosures, or information dealing with the substance of a third party’s knowledge, are improper for Rule 30(b)(6) purposes. If a defendant requires such information, it should conduct written discovery, subpoena the complaint agency, interview or even depose such third parties.

Protection of privileges

As noted previously, many cases discuss protection of the work product privilege. But other privileges may be at risk as well, including:

  1. Common Interest Privilege
  2. Deliberative Process Privilege
  3. The Law Enforcement Privilege
  4. State Secrets Privilege

Depositions of agencies

Depositions of government agencies are explicitly permitted under Rule 30(b)(6), but if the agency happens to be serving as trial counsel in an enforcement action and also conducted or supervised the underlying investigation, many courts refuse to permit the deposition.

The risk is that work product and other privileges overlapping as case facts become mixed with trial counsel’s mental processes and legal strategies. Although the general rule is that defendants have an absolute right to depose the government under Rule 30(b)(6), some courts have carved out exceptions and it is best to research the law in your jurisdiction.

Depositions of opposing counsel

The leading case on the standards for deposing opposing counsel is the Eighth Circuit case of Shelton v. American Motors Corporation. 805 F.2d 1323 (8th Cir. 1986) in which the court reaffirmed the general disapproval of attempts to depose opposing counsel. The Shelton court established a three-part test for situations in which a deposition of opposing counsel is sought, stating that the moving party must establish that:

  • no other means exist to obtain the sought information;
  • the information is relevant and non-privileged; and
  • the information is crucial in the case.

Deposing the plaintiff

Several leading cases have granted protective orders to the government or denied defense motions to compel in cases where defendants have attempted to depose enforcement plaintiffs under Rule 30(b)(6).

These include:

Securities and Exchange Commission v. Rosenfeld, op cit

Securities and Exchange Commission v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003).

Securities and Exchange Commission v. SBM Investment Certificates, Inc., D. Maryland, Civil Action No. DKC 2006-0866 (D. Md. Feb. 23, 2007)

Equal Employment Opportunity Commission v. Evans Fruit Company, Inc., 2:2011cv03093, (E.D. Wash. 2013)

Other cases have allowed Rule 30(b)(6) depositions of enforcement authorities to proceed as noticed, including.

Securities Exchange Commission v. Kramer, CASE NO.: 8:09-cv-455-T-23TBM (M.D. Fla. Apr. 1, 2011)

Securities and Exchange Commission v. Merkin, Case No. 11-23585-CIV, United States District Court, S.D. Florida, Miami Division. 3012 

Securities and Exchange Commission v. McCabe, No. 2:2013cv00161 – Document 57 (D. Utah 2015)

Federal Trade Commission v. DIRECTV , Inc., Case No. 15-cv-01129-HSG. United States District Court, N.D. California. (2018)

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, 918 F.Supp.2d 1171 (2013)

We’ll publish Part 6 – Conclusions – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  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 Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: eDiscovery Case Law

In Ewing v. Aliera Healthcare, No. 19cv845-CAB-LL (S.D. Cal. Aug. 12, 2019), California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

Case Background

In support of his motion, the plaintiff stated that “Local Rule 83.4 requires civil, courtesy and dignity in all communication, oral and written.”  The plaintiff also noted that defendant’s counsel “admitted to hanging up the phone on Plaintiff to the Court’s law clerk” and also requested permission to file a reply.

The defendant opposed the plaintiff’s motion on the grounds that “Plaintiff has failed to establish why Judge Lopez should sanction counsel for Aliera” noting that at issue is only “one phone call between Plaintiff and Aliera’s counsel on July 24, 2019.”  The defendant also stated:

“Plaintiff insists on recording every phone conversation, despite counsel for Aliera objecting to such recordings…The reason counsel cut his July 24 phone conversation short was because he had already confirmed that the meet and confer meeting with Plaintiff would take place on July 30; not on July 25 as Plaintiff later demanded, and despite Plaintiff’s protestations and desire to schedule it for the week of July 22…Plaintiff [then] insisted on demanding why Judge Lopez allowed Aliera’s counsel, Dwight Francis, to appear at the ENE on July 1, 2019. This extraneous demand was irrelevant to the topic of the July 24 call, and followed up on a letter Plaintiff had earlier written counsel on the same non-issue. Counsel, who was extremely busy, informed Plaintiff that he would need to take that issue up with Judge Lopez, and ended the call.”

Judge’s Ruling

Judge Lopez began her ruling by stating: “As an initial matter, the Court denies Plaintiff’s request for leave to file a reply. The Court has reviewed the briefing and finds that it has sufficient information on this issue. Notably, Plaintiff’s Motion lacks any law or authority in support of the request for sanctions.”

She ended her ruling by stating: “Here, the conduct at issue in Plaintiff’s Motion, defense counsel hanging up the phone prematurely one time during a conversation with Plaintiff, does not warrant sanctions. Indeed, defense counsel’s opposition sets forth a reasonable explanation of why defense counsel “cut short” the July 24, 2019 phone conversation. Accordingly, the Court DENIES Plaintiff’s request to impose sanctions. The Court also DENIES Defendant’s request to order Plaintiff to compensate Defendant for the time incurred in having to oppose the instant Motion. However, the Court reminds the parties that any future unprofessional conduct or otherwise improper conduct (including but not limited to filing motions with no basis in the law) may warrant a motion for sanctions by either party.”

So, what do you think?  Should attorneys be sanctioned for hanging up on each other?  Or for filing sanctions motions for opposing counsel doing so?  Or both?  ;o)  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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Four

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, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday and the third part was last Friday, here’s the fourth part.

Common Mistakes

Here are some of the common mistakes associated with preparation for 30(b)(6) witness depositions:

Failure to Thoroughly Review the Deposition Notice

The rule requires that it describe the matters for examination with reasonable particularity. Thus, the witness need be prepared only for what is described. The deposing party may ask a witness questions that are outside the scope of the matters for examination but counsel for the deponent should be prepared to object and make clear that any answers provided are not binding on their client.

Designating the Wrong Representative or Failing to Designate Multiple Representatives

30(b)(6) requires that the organization “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” In addition, the organization may set out the matters on which each person designated will testify and note that testimony is limited in scope to the issues of which they have personal knowledge.

If the potential witness does not have such personal knowledge it may be better to designate another witness or use multiple witnesses to discuss specific matters. The point is that the party upon whom the notice or subpoena is served is required to designate which individual or individuals are appropriate to testify on which topics.

Because testimony generated during a deposition has the potential to be admitted into evidence at trial, a witness testifying about a subject outside his or her direct knowledge could lead to damaging testimony at trial. Costly delays from resolving these issues at trial are one factor in the proposed rule changes discussed above.

Inadequate Preparation of Witness

Rule 30(b)(6) requires that a corporation do more than merely gather documents and produce a witness with general knowledge about the issues in the case. It must produce a witness who has been prepared.

But the rule does not require perfection; the mere fact that a witness can not answer every question on a certain topic does not mean that the corporation failed to comply with its obligation.

Still, the duty is significant and has even been described by one court as “onerous.” because, in the words of the Court, “… we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.” Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638. (D. Minn. 2000)

We’ll publish Part 5 – Specific Strategies to Consider – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Three

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, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday and the second part was Wednesday, here’s the third part.

Proposed Rule Change

The current Rule provides little guidance on how much notice is required, how a 30(b)(6) deposition counts towards the limit and duration of depositions, the presumptive limit on the number of deposition topics and the process for objecting to, and resolving disputes about, the scope of a notice.

With that in mind, the Advisory Committee on Civil Rules began considering a variety of changes to the Rule beginning in April 2016. The amendment eventually put forth by the Committee says that “[b]efore or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

Public comments on the proposed changes closed in February of this year and many major corporations voiced concern over these proposed changes. Over 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter to the committee objecting to the new language.

Specifically, these organizations voiced the following concerns:

  • An organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses and the subject matters these witnesses will testify about without input from opposing counsel.
  • The rule needs to provide more guidance. For example, the language requiring counsel to confer about “the number and description of the matters for examination” is unclear and fails to lay out with specificity what the parties need to address prior to the deposition.
  • An amendment forcing the parties to confer would increase, rather than decrease, discovery disputes.

The Committee felt, however, that the amendment will not increase discovery disputes, but instead reduce these issues and streamline litigation. Their belief was that having the parties confer with each other prior to the deposition may help bring issues to the forefront so the court can handle the matters promptly rather than the current method of interrupting a deposition or even a trial to handle arguments about testimonial issues then.

The Draft Committee Note addresses some of the concerns that were raised and specifically reiterates that the “named organization ultimately has the right to select its designees,” and notes that “the amendment does not require the parties to reach agreement.”. The Advisory Committee’s official position paper can be found here. If approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, the Amendment would go to Congress for final approval and become effective on December 1, 2020.

We’ll publish Part 4 – Common Mistakes – next Monday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  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.

Hold It Right There!: eDiscovery Throwback Thursdays

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

This post was originally published on March 22, 2012, when eDiscovery Daily was just over a year and a half old.  Even though the Federal Rules changes of 2015 have made sanctions more difficult to obtain with the “intent to deprive” standard in Rule 37(e) for significant sanctions for spoliation of ESI, failure to issue a litigation hold has been seen in the eyes of some courts as an intentional act, leading to adverse inference instruction sanctions or even dismissal or default judgment of the case.  So, implementing a solid litigation hold is as important than ever.  Also important is suspending any auto delete programs that are running for key custodians.  Seven and a half years ago, those were primarily associated with email auto delete programs, but it now is just as important for text message and other message programs as well, as illustrated by these three recent cases.  Enjoy!

When we review key case decisions every year related to eDiscovery, the most case law decisions are almost always those related to sanctions and spoliation issues.  Most of the spoliation sanctions were due to untimely or inadequate preservation of the data for litigation.  As noted in the historic Zubulake decision, Judge Shira Sheindlin ruled that parties in litigation have an obligation to preserve potentially relevant data as soon as there is a reasonable expectation that data may be relevant to future litigation.  However, even if the party reacts in a timely manner to take steps to preserve data through a litigation hold, but executes those steps poorly, data can be lost and sanctions can occur.  Here are some best practices for implementing a litigation hold.

The most effective litigation hold plans are created before actual litigation arises and applied consistently across all matters. While cases and jurisdictions vary and there are not many hard and fast rules on implementing litigation holds, there are generally accepted best practices for implementing holds.  Implementation of a litigation hold generally includes each of the steps identified below:

Identify Custodians and Suspend Auto-Delete Programs: As we have learned in many cases over the years, it’s important to completely identify all potential custodians and suspend any automatic deletion programs that might result in deletion of data subject to litigation.  As noted above, those auto-delete programs extend to more than just email these days, as we have seen several cases (especially lately) involving failure to suspend auto-delete programs for text and other messaging apps.

Custodians can be individuals or non-individual sources such as IT and records management departments.  To determine a complete list of custodians, it’s generally best to conduct interviews of people identified as key players for the case, asking them to identify other individuals who are likely to have potentially relevant data in their possession.

Prepare Written Hold Notice: Hold notices should be in writing, and should typically be written in a standard format.  They should identify all types of data to be preserved and for what relevant period.  Sometimes, hold notices are customized depending on the types of custodians receiving them (e.g., IT department may receive a specific notice to suspend tape destruction or disable auto-deletion of emails).

Distribute Hold Notice: It is important to distribute the notice using a communication mechanism that is reliable and verifiable. Typically, this is via email and litigation hold distribution and tracking mechanisms have become much more common in recent years. Distribution should occur only to the selected and specific individuals likely to have potentially relevant information, usually not company-wide, as not everyone will understand the parameters of the hold.  Believe it or not, notices with overly broad distributions have, in some cases, been deemed inadequate by courts.

Track Responses: It is advisable to require recipients of the litigation hold notice to confirm their receipt and understanding of the notice via a method that can be tracked (again, a litigation hold program can help automate this process as it can keep track of those who have acknowledged receipt of the hold notice as well as who hasn’t).  These litigation hold distribution and tracking programs have become preferable to any manual programs for tracking read receipt notifications through email.

Next week, we’ll discuss follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Hasta la vista, baby!

So, what do you think?  Do you have a solid “hold” on your hold process?  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.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Two

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, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday, here’s the second part.

Initial Considerations

Notice that the rule requires simply that the responding party must designate someone to testify on behalf of the business entity and not that the requesting party can specify the identity or even the position in the organization of the witness. It is also commonly interpreted by responding parties that they are not necessarily required to produce for deposition the most knowledgeable person in the organization but rather, anyone of their choosing who agrees to testify.

Since this means the witness will testify as the organization’s knowledge, not his or her own personal knowledge on the subject of the deposition, the obligation to educate the witness on the requested topics falls to the organization.

The key for the requesting party to ensure specificity during the deposition is the crafting of the notice of deposition. It should include specific topics to be covered at the deposition which are “reasonably particular” as the rule states but not be so detailed that objections can be raised during the deposition that a question or questions being asked was not part of the deposition notice.

The timing of the 30(b)(6) deposition is important. If taken at the beginning of the case, it may helpful to pinpoint issues for further discovery, such as detailing policies or procedures that can help define requests for production.  But a deposition taken later, say after document productions, can fill in gaps or answer questions raised by the documents themselves or even identify further fact witnesses to answer those questions.

Once the deposition has begun and it becomes clear that the witness is not able to testify about the topics in the deposition notice, a decision must be made to establish either that this is not the proper  witness to testify on the requested issues or merely demonstrate that the witness is not knowledgeable on the issues. The difference is whether you intend to seek a motion to compel the appearance of a different witness or alternatively preclude the organization from introducing testimony on these areas at trial.

On occasion, the witness is evasive or even outright hostile. This may be simply because the IT person designated to testify is not well prepared as noted above. But it may also be that the witness is not happy about having to testify, feels they are overqualified to testify and are being forced to deal with people who know less than he does or, in some rare cases, is part of a corporate document management strategy designed to specifically preserve and produce documents in only one specific manner.  Here’s a link to the outline of a CLE session presented by Chris Ralston, a senior Commercial Litigation Partner at Phelps Dunbar in New Orleans, and me, dealing with such a hostile witness.

We’ll publish Part 3 – Proposed Rule Change – on Friday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  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.

Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices

So many topics, so little time (again).  In our webcast about millennials and their impact on eDiscovery last week, Tom O’Connor and I spent a lot of time talking about how millennials are quick to embrace new technology and certainly there have been few technology areas of growth like mobile device use.  They’re everywhere and used by (seemingly) everybody and used (seemingly) all day long.  Texts are the new emails, which means they have considerable importance from an eDiscovery perspective.  So, who should you go to if you want to stay apprised of mobile eDiscovery trends?  Craig Ball is “that guy”.

In Craig’s excellent Ball in Your Court blog, his latest post from last week (Preserving Android Evidence: Return of the Clones?), discusses Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In discussing this new capability, Craig states: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.

Now, it should be feasible to direct custodians to undertake a simple online preservation process for Android phones having many of the same advantages as the preservation methodology I described for iPhones two years ago.  Simple.  Scalable.  Inexpensive.”

Craig did acknowledge that because Android backups live in the cloud, he anticipates that, at first, there will be no means to download the complete Android backup to a PC for analysis, thus requiring restoring the data to a factory-initialized “clean” phone as a means to localize the data for collection (at least until Google hopefully provides a suitable takeout mechanism).  As a result, “examiners may revive the tried-and-true cloning of evidence to clean devices then collecting from the restored device” (just like they once did with computer drives).  “Everything old is new again.”

Whether it’s informing us of simpler, less expensive ways of preserving iPhone and Android data, or keeping us updated as Apple announces it’s doing away with iTunes, or educating us on geolocation data, or providing us an easy to understand Mobile Evidence Burden and Relevance Scorecard.  Or he’s providing us with an entire 24 page white paper on mobile device discovery titled Mobile to the Mainstream.  So, when it comes to best practices and useful tips regarding mobile device discovery, Craig Ball is “that guy” (see what I did there, Craig?).  ;o)

So, what do you think?  Are you struggling with mobile device discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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