Close
Enter your
text here

Electronic Discovery

TAR Rules for the New York Commercial Division: eDiscovery Trends

File this one under stories I missed until yesterday.  We’ve seen plenty of cases where the use of Technology Assisted Review (TAR) has been approved and even one this year where a protocol for TAR was ordered by the court.  But, here is a case of a jurisdiction that has proposed and adopted a rule to encourage use of the most efficient means to review documents, including TAR.

As reported in the New York Law Journal (NY Commercial Division Gives Fuller Embrace to E-Discovery Under New Rule, written by Andrew Denney), the New York Commercial Division has adopted a new rule to support the use of technology-assisted document review in appropriate cases.

As the author notes, plenty of commercial litigants are already using technology to help them breeze through potentially labor-intensive tasks such as weeding out irrelevant documents via predictive coding or threading emails for easier reading.  But unlike the U.S. District Court for the Southern District of New York, which has developed a substantial volume of case law bringing eDiscovery proficiency to the bar (much of it authored by recently retired U.S. Magistrate Judge Andrew Peck), New York state courts have provided little guidance on the topic.

Until now.  The new rule, proposed last December by the Commercial Division Advisory Council and approved last month by Lawrence Marks, the state court system’s chief administrative judge and himself a former Commercial Division jurist, would fill the gap in the rules, said Elizabeth Sacksteder, a Paul, Weiss, Rifkind, Wharton & Garrison partner and member of the advisory council.  That rule, to be incorporated as a subpart of current Rule 11-e of the Rules of the Commercial Division, reads as follows:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case.  Such means may include technology-assisted review, including predictive coding, in appropriate cases.

Muhammad Faridi, a commercial litigator and a partner at Patterson Belknap Webb & Tyler, said that using technology-assisted review is nothing new to most practitioners in the Commercial Division, but it is “revolutionary” for the courts to adopt a rule encouraging its use.  Maybe so!

So, what do you think?  Are you aware of any other rules out there supporting or encouraging the use of TAR?  If so, let us know about them!  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 Denies Defendant’s Motion for Protective Order in Broiler Chicken Case: eDiscovery Case Law

In the In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. July 26, 2018), Illinois Magistrate Judge Jeffrey T. Gilbert denied defendant Agri Stats’ Motion for Protective Order, ruling the defendant “Has Not Made a Threshold Showing” and, the information requested by the End User Consumer Plaintiffs (“EUCPs”) was not reasonably accessible because of undue burden or cost (and, even if they had, the EUCPs showed good cause for requesting custodial searches of ESI, throughout the time frame set forth in the ESI Protocol) and that Agri Stats “Does Not Satisfy the Rule 26(b)(2)(C) Factors” to limit discovery.

Case Background

Prior to this class action lawsuit involving broiler chicken prices, defendant Agri Stats was the subject of a DOJ investigation and claimed it “searched for and produced to the DOJ documents and information like what the EUCPs are requesting”.  Agri Stats ran custodial searches for designated custodians for the period between September 17, 2008 through September 17, 2010, and it produced to the DOJ responsive documents it collected with those searches. But, the time frame for discovery in this case was much broader, extending from January 1, 2007 until September 2, 2016.

Agri Stats argued that it should not be required to run custodial searches of ESI created prior to October 3, 2012 (the date the DOJ investigation closed) for the agreed upon 12 custodians because it ran similar searches for most of those custodians during the DOJ investigation and “requiring it to re-run expensive searches with the EUCPs’ search terms for those same custodians for a broader time period than it already ran is burdensome, disproportionate to the needs of this case, and unreasonable when viewed through the filter of Federal Rule of Civil Procedure 26(b)(2).”

The EUCPs disagreed and contended that Agri Stats should be required, like every other Defendant in this case, to perform the requested searches with the EUCPs’ proposed search terms for the time frame stated in the ESI Protocol, contending that both were broader than what Agri Stats produced for the DOJ investigation.

Judge’s Ruling

Considering the arguments, Judge Gilbert stated:

“The Court agrees with EUCPs. Although Agri Stats conducted custodial searches for a limited two-year period in connection with the DOJ’s investigation of possible agreements to exchange competitively sensitive price and cost information in the broiler, turkey, egg, swine, beef and dairy industries, that investigation focused on different conduct than is at the heart of EUCPs’ allegations in this case, which cover a broader time period than was involved in the DOJ’s investigation. The Court finds that a protective order is not warranted under these circumstances.”

While noting that “Agri Stats says that it already has produced in this case more than 296,000 documents, including approximately 155,000 documents from before October 2012” and that “Agri Stats represents that the estimated cost to run the custodial searches EUCPs propose and to review and produce the ESI is approximately $1.2 to $1.7 million”, Judge Gilbert observed that the “estimated cost, however, is not itemized nor broken down for the Court to understand how it was calculated”.  Judge Gilbert also noted that “EUCPs say they already have agreed, or are working towards agreement, that 2.5 million documents might be excluded from Agri Stats’s review. That leaves approximately 520,000 documents that remain to be reviewed. In addition, EUCPs say they have provided to Agri Stats revised search terms, but Agri Stats has not responded.”

As a result, Judge Gilbert determined that “Agri Stats falls woefully short of satisfying its obligation to show that the information EUCPs are seeking is not reasonably accessible because of undue burden or cost.”  In denying the defendant’s motion, he also ruled that “Even if Agri Stats Had Shown Undue Burden or Cost, EUCPs Have Shown Good Cause for the Production of the Requested ESI and Agri Stats Does Not Satisfy the Rule 26(b)(2)(C) Factors”.

So, what do you think?  Could the defendant have done a better job of showing undue burden and cost?  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.

Investment is Changing the eDiscovery Market as We Speak: eDiscovery Trends

Yesterday, we talked about how eDiscovery business confidence seems to tend to take a downturn every summer.  But, when it comes to private equity firms’ investment in eDiscovery companies, eDiscovery business confidence seems to be stronger than ever.

As reported in LegalTech News (E-Discovery Market’s Demand Attracting More Investors Than Ever Before, written by Rhys Dipshan), the author notes that over the past few years, private equity firms have invested in over a dozen eDiscovery companies.  Since January 2018, have played a leading role in reshaping the eDiscovery market.  Some examples:

  • Xact Data Discovery was acquired by private equity firm JLL Partners in January 2018;
  • San Francisco-based private equity firm GI Partners was behind the March 2018 merger of Consilio and Advanced Discovery;
  • In October 2017, Knox Capital led a funding round for eDiscovery and forensics provider HaystackID, which then supported HaystackID’s April 2018 acquisition of Envision Discovery and Inspired Review;
  • In late May 2018, another New York City-based private equity firm, Leeds Equity Partners, also moved into the e-discovery industry by investing in Exterro. While the exact investment amount was not disclosed, Exterro told Legaltech News it was a “nine figure deal”;
  • And yet another private equity firm, Peak Rock Capital, invested in eDiscovery company (and sponsor of this blog) CloudNine and helped fund its March 2018 acquisition of the LexisNexis eDiscovery product suite. A spokesperson for Peak Rock Capital said the firm invested in the CloudNine because it “saw great potential in CloudNine as a high growth software-as-a-service provider of processing and review solutions.”

So, what’s behind private equity’s appetite for all things eDiscovery? The author states that “[a]t its core, it stems from private equity’s belief that demand for e-discovery technology and services remain strong for years to come.”

Private equity firms seem not to be too worried that their eDiscovery picks will be crowded out of the market anytime soon. Peak Rock Capital, for instance, believes that there “is ample demand in the growing e-discovery segment. There’s been consolidation on the services side, but the market is quite large, and we continue to see robust demand from new customers.”

As I’ve noted several times on this blog, a great resource for a list of mergers, acquisitions and investments is Rob Robinson’s Complex Discovery blog where he lists industry transactions back as far as November 2001 – which is even before Kroll acquired Ontrack!  Now, both names are absorbed in acquisition.  We’ve certainly seen several large transactions over the years, but if you look at the most recent transactions (since May 1, 2018), we have at least three “nine figure deals” in the last nine months.  That’s big business!

So, what do you think?  Are you surprised in the amount of investment in the eDiscovery industry?  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.

Has eDiscovery Business Confidence Hit the Summertime Blues?: eDiscovery Trends

As the late, great Eddie Cochran would say (and sing), “there ain’t no cure for the summertime blues”.  The Complex Discovery eDiscovery Business Confidence Survey is into its third year and the results are in for the Summer 2018 eDiscovery Business Confidence Survey!  As was the case for the 2016 Winter, Spring, Summer and Fall surveys, the 2017 Winter, Spring, Summer and Fall surveys and the 2018 Winter and Spring surveys, the results for the Summer survey are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  He also provides his own analysis of the results here.  As I’ve done for the past few surveys, I will provide some analysis and, this year, I’ll take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all eleven surveys to date.

The Summer 2018 Survey response period was initiated on July 4 and continued until registration of 66 responses by last week.  Rob notes that this limiting of responders to 66 individuals is a change from previous surveys and reflective of an adjusted survey participant listing based on GDPR implementation by Complex Discovery and sensitivity to the increasing number of industry surveys.  Good to know!

Providers Back to the Top of the Heap: Software and/or Services Provider respondents were back on top this time, accounting for nearly 40% (39.4% to be exact) of all respondents.  Law Firm respondents were next at 28.8% and Consultancy respondents slid back to third at 22.7%.  As always, if you count law firms as providers (they’re technically both providers and consumers), this is a very provider heavy survey with over 90% of total respondents (which makes perfect sense as they would be most interested in eDiscovery business confidence).  Here’s a graphical representation of the trend over the eleven surveys to date:

This is another provider heavy survey yet at 91% of total respondents (yet, not a record).  So, how confident are providers in eDiscovery business confidence?  See below.

Just Over Half of Respondents Consider Business to Be Good: This time, only 53% of respondents considered business to be good, a big drop from the record 68% we had last quarter.  7.6% of respondents rated business conditions as bad, only slightly higher than last quarter’s 7.0%.  That may seem like a big slide, but it’s in line with the numbers of the past two summers (slightly worse than the 53.4%/5.0% of last summer, but considerably better than the 47.6%/13.7% of two summers ago).  Summer doldrums, anyone?  Anyway, here is the trend over the eleven surveys to date:

So, how good do respondents expect business to be in six months?  See below.

Revenue and Profit Expectations Are Still in Line: Nearly all respondents (95.5%) expect business conditions will be in their segment to be the same or better six months from now (a little bit higher than last quarter’s 94%), and the percentage expecting business to be better stayed flat at 50%.  Revenue (at combined 92.4% for the same or better) is over three points lower than the last quarter.  Profit expectations (combined 87.9%) rose nearly two points from last quarter, but with those expecting higher profits dropping 7.5 points from last quarter’s record high.  However, the percentage of those expecting higher profits is still significantly higher than either of the last two summers.     Here is the profits trend over the eleven surveys to date:

If you look at averages for the first three quarters this year, the profit sentiment overall is stronger than the past two years, so the trend is still positive overall.

Budgetary Constraints Are Still Considered to Be Most Impactful to eDiscovery Business: Budgetary Constraints was (once again) the top impactful factor to the business of eDiscovery over the next six months at 22.7%, but with Increasing Types (not Volumes) of Data next up at 21.2%.  Data Security was close behind again in third at 19.7%, with Increasing Volumes of Data (16.7%) at fourth, its lowest ranking ever.  Lack of Personnel was fifth at 13.6%, with Inadequate Technology bringing up the rear at 6.1%.  The graph below illustrates the distribution over the eleven surveys to date:

Once again, Budgetary Constraints is at or near the top, but it’s Increasing Types of Data that is a strong second this time.  I guess it’s all of those CLEs we’ve been doing (including this one, pats self on back)… :o)

Back to a Heavier Exec Influence: The Executive Leadership respondents were back up to near half (45.4%). Operational Management and Tactical Execution respondents were exactly even (27.3%).  So, this survey reflects a little more exec influence.  Here’s the breakdown over the eleven surveys to date:

Clearly, the variance in distribution shows that the respondents for this survey vary from quarter to quarter, so it’s not the same people giving the same answers each time.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of 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.

ILTACON 2018 Preview Edition: eDiscovery Trends

Believe it or not, it’s almost time for another ILTACON!  ILTACON is the annual conference for the International Legal Technology Association (ILTA).  This year, it’s the 41st annual conference and it’s being held at the Gaylord National Resort and Conference Center at National Harbor, MD from August 19 to August 23.  eDiscovery Daily will once again be covering the show and CloudNine will exhibiting at the show and participating in a major way.   If you’re going to be in the Washington DC/National Harbor area, you may want to check out a few of these sessions regarding eDiscovery and Information Governance.

In addition to exhibiting at the show in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We’re also going to be the sunglass sponsor for the ACEDS Monumental Sunset Cruise on Wednesday, August 22 from 7:00 to 10:00pm ET! (online registration is closed, but you can still join the waiting list)…

Here are a few sessions to check out (including one that I’m speaking on at 1pm on Monday, just sayin’):

Monday, 08/20/2018:

The Future of eDiscovery: A Discussion Amongst Industry Leaders (11:00AM to Noon): What does the future of eDiscovery hold? Hear from industry leaders as they discuss their predictions of both the short and long-term future of the eDiscovery market. They’ll analyze anticipated disrupters and how their organizations are planning for change. Additionally, they’ll share practical steps for law firms to begin preparing themselves today.

Takeaways:

  • Hear from industry vision leaders on what they see as our future in the eDiscovery space will be and how they are planning for any change within their organization.
  • Learn about the market disruptors?
  • What should law departments or law firms be thinking and preparing for?

eDiscovery Training Roadmap (1:00PM to 2:00PM): In this interactive and informative session, we will walk through how to train and develop your eDiscovery staff. The discussion will help you determine who the stakeholders are and what skills do they need to succeed. We will also discuss eDiscovery best practices, training strategies, and defining work processes. The discussion will include types of training that won’t work and war stories from our veteran eDiscovery experts.

eDiscovery and Litigation Support for Small Firms: Which Hat Should I Wear Today? (1:00PM to 2:00PM): eDiscovery is a critical component of litigation these days. Learn how small firms can effectively manage eDiscovery and litigation support without a dedicated department and while juggling multiple tasks.  I’m honored to be speaking at this session, along with Dana Wesley Sarti  and Sherry Rather of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, with Brett Burney of Burney Consultants moderating.

Managing Out-of-the-Ordinary Projects in eDiscovery (2:30PM to 3:30PM): How does your firm approach out-of-the-ordinary projects?  This session will provide hands on practical information on how to approach non-ordinary projects.  Every project should be approached in the same manner, using fundamental project management steps.  We will review these steps and provide insight on how some special projects were successful using these fundamentals.

And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM ET, where “there’s an open world of video games at ILTA’s Partner Video Game HQ” where attendees can play lots of video games while enjoying food and drink.

Tuesday, 08/21/2018:

O365 and eDiscovery: What’s New? (1:30PM to 2:30PM): Office 365, Microsoft’s current software suite, is often a “go-to” tool in e-Discovery. We’ll examine the strengths and weaknesses of each applications and get up to speed with all of the newest features. Additionally, we’ll examine the future of e-Discovery and what to expect from Microsoft as its products evolve.

EDiscovery Directors’ Roundtable: What Keeps You Up at Night? (3:30PM to 5:00PM): Litigation Support and eDiscovery Directors are tasked with running a business within a business.  The challenges you face go beyond the case specific:  From expanding services to other practice areas, how to best present your team’s value to clients and firm stakeholders, understanding your staffing and staff development needs and forecasting technology trends, to addressing evolving, complex data privacy and security concerns.  Your job is to keep your business model relevant and profitable in an increasingly competitive and consolidated industry.  This session will provide a forum for directors to share and learn from each other in a “safe” environment.  The session is for law firm professionals at the director level only.

Takeaways:

  • Gather, share, and identify growth opportunities for your department within your firm.
  • Learn what’s worked for others in gathering metrics and presenting those to firm management.
  • Compare and strategize how to overcome challenges and pain points unique to this role.

Information Governance Roundtable (3:30PM to 5:00PM): Come and enjoy a rich and detailed discussion among law firm information governance professionals. They will dive deep into current issues and future risks and issues of note.

Wednesday, 08/22/2018:

Litigation Support & Legal Operations: Ideas and Innovation Workshop (3:30PM to 5:00PM): Be prepared to roll up your sleeves and actively participate in this interactive session!  This will be a combination of a lightning-round expert panel, a town hall, and a peer-to-peer tabletop workshop. Attendees will have the opportunity to collaborate and solve some of the real world problems we face in litigation support and legal operations, today.  A recap of challenges and solutions will be provided to attendees at the end of the session.

Takeaways:

  • The opportunity to participate in collaborative problem solving.
  • Exposure to issues attendees may or may not be aware of.
  • List of collaborative solutions developed during the session for each of the scenarios identified.

Thursday, 08/23/2018:

Design Thinking in Litigation Support (9:00AM to 10:00AM): A practical workshop on how design thinking can be leveraged in litigation support to develop a solution that works for the legal teams. Hear real world examples of how design thinking improved customer service and deliveries, and improved processes and policies.

Takeaways:

  • Learn about the basic fundamental steps to design thinking
  • Hear about examples of how law firms have used design thinking to improve their legal services to clients.

Transforming Records Managers: Assessing and Adapting to the Changing Skill Needs for Information Governance (11:15AM to 12:15PM): Records management is a critical component of Information Governance (IG) but it is only part of the solution. IG is a multi-discipline, organization-wide strategy requiring collaboration and records managers are best positioned to lead the way. Learn how to assess and adapt your records team to the new, more broad skills needed to address information governance.

Takeaways:

  • Understand the key skills for Information Governance Program Managers vs. traditional Records Managers and how to assess current skills to identify gaps in skills needed to transition
  • Matrix of essential skills and relevant certifications
  • An action plan to develop the skills of your team

So, what do you think?  Are you going to ILTACON next month?  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.

Even with Bad Communication and Unfulfilled Discovery Obligations, Sanctions Still Not Granted: eDiscovery Case Law

eDiscovery Case Week concludes today!  We had a great webcast on Wednesday where Tom O’Connor and I discussed key eDiscovery case law for the first half of 2018 – 22 cases in all!  Check it out! – Doug

In US v SuperValu, No. 11-3290 (C.D. Ill. July 12, 2018), Illinois District Judge Richard Mills ruled against sanctions requested by the defendants at this time, even though the relators didn’t “live up to their discovery obligations.”

Case Background

The relators filed this qui tam action alleging the defendants defrauded government healthcare programs by fraudulently reporting inflated Usual and Customary (U&C) pharmacy prices for prescriptions filled for government healthcare program beneficiaries.

In their first amended complaint, the relators claimed they each spoke individually with employees of certain of the defendants’ pharmacies. The defendants alleged the relators relied heavily on these alleged conversations to support their fraud allegation, and that the relators shredded contemporaneous notes of “supposed conversations” with the defendants’ employees. It was also charged that the relators intentionally deleted computer files concerning these conversations and threw away the computer on which the files were stored, thereby precluding examination of the relevant metadata.

On December 20, 2016, the defendants served interrogatories seeking details of the alleged conversations, and the relators identified 19 alleged conversations between employees of the parties. The defendants also requested production which sought, among other things, documents relating to certain phone calls. The relators produced no documents in response to the requests.

Subsequently, the relators’ counsel produced five documents which one of the relators’ employees confirmed were the notes that he made on his home computer concerning phone calls he allegedly made to various defendant pharmacies. He then testified he had no independent recollection of the substance of these calls. The computer on which he prepared the notes “quit working,” and he threw it away after the filing of this lawsuit, which “deleted everything [all documents he prepared on the computer related to this lawsuit] after [he] sent them to counsel.” A number of other notes were also prepared on the computer, and some of the handwritten notes or reports that were the basis for this information were shredded or destroyed.

The relators claimed the defendants made no effort to investigate the matters it addresses in its motion and did not speak to counsel for the relators before filing the motion. They also disputed the defendants’ allegations that “Notes not produced to date have been lost forever, and all metadata reflecting the timing of the creation and editing of even the summaries has likewise been lost and is non-recoverable.”

The relators claimed their counsel has electronic copies of all the notes discussed by defendants in its motion, with metadata, and some copies of Schutte’s handwritten notes. However, the defendants did not ask for these materials. The relators contended that even if certain handwritten notes were destroyed, all relevant information was preserved.

The relators also alleged that a number of these allegedly spoliated documents are protected by the work product doctrine and were not subject to discovery.  The defendants filed a motion for limited sanctions for spoliation of evidence.

Judge’s Ruling

After taking into consideration FRCP 26 and 37, as well as previous case law, Judge Mills ruled:

“In some respects, it appears that the parties are having communication problems. If the documents are simply paper or electronic records of statements made by employees of the defendants, the Court fails to see how such documents could possibly constitute the relators’ work product. Accordingly, those documents should have been turned over to the Defendants upon request, pursuant to Rule 26(b)(3)(C)(ii).”

Judge Mills continued: “The defendants will have an opportunity to question the relators about the alleged conversations, the circumstances under which any notes were prepared, and any other relevant matters, including the destruction of the computer and any metadata that may have been lost. If it comes to light that a party acted inappropriately or in bad faith, the Court will consider imposing sanctions at that time…Although it appears that the Relators may not have lived up to their obligations under the discovery rules, the Court does not believe that the sanctions requested by the Defendants are appropriate at this time.”

So, what do you think? Is this ruling within the correct interpretation of spoliation sanctions under Rule 37? Please share 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.

Court Rules Non-Party Subpoenaed ESI Not Subject to 100-Mile Boundary: eDiscovery Case Week

eDiscovery Case Week continues!  We had a great webcast yesterday where Tom O’Connor and I discussed key eDiscovery case law for the first half of 2018 – 22 cases in all!  Now, on to covering cases for the second half of 2018!  :o)

In Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C (W.D. Okla. June 13, 2018), Oklahoma District Judge Robin J. Cauthron, noting that the non-party “subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents”, found that “there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54” and granted the plaintiff’s Motion to Compel Compliance with Subpoena directed to the non-party.

Case Background

In this case where the plaintiff claimed breach of contract, bad faith, unjust enrichment, and fraud against the defendant insurance company over the valuation of the plaintiff’s vehicles after two automobile collisions, the plaintiff served non-party Mitchell International, Inc. with a subpoena duces tecum in March 2018.  The plaintiff requested documents from Mitchell pertaining to “the correspondence, purchase, and analysis of the [computer valuation system]” Mitchell utilized to create valuations of total loss vehicles for the defendant and served Mitchell through its Oklahoma registered agent.  Within two weeks, Mitchell served written objections to Plaintiff’s subpoena.  Subsequent discussion failed to reach a resolution and the plaintiff filed a Motion to Compel Compliance with Subpoena.

The plaintiff argued that her subpoena was valid and enforceable because “a subpoena that commands a person to travel beyond the 100-mile boundary must be quashed however, a Court retains discretion to command compliance with a subpoena for documents which requires production beyond the 100-mile limitation.”  The plaintiff also noted that “[t]he contractual nature of the relationship between Progressive and Mitchell, as well [as] the cost-savings incentives marketed to Progressive by Mitchell are relevant to the claims in this lawsuit . . . concerning the method and manner in which the system operates in creating values for Progressive’s Oklahoma insureds is the fundamental basis of Plaintiff’s claims.”  Mitchell argued that the Court lacked jurisdiction to hear the plaintiff’s motion because Mitchell maintains its headquarters and principal place of business in San Diego and the subpoena demands compliance in Shawnee, Oklahoma.

Judge’s Ruling

Noting that “Federal district courts enjoy broad discretion over discovery measures”, Judge Cauthron, in granting the plaintiff’s motion, stated:

“Here, Plaintiff states—and Mitchell does not dispute—that the information requested can be produced electronically. Mitchell has an Oklahoma registered agent and Progressive Northern Insurance Company continues to use the valuation system licensed and provided by Mitchell in Oklahoma to conduct business. As a result, Mitchell regularly transacts business in Oklahoma. The subpoena at issue does not require the travel or attendance of any witnesses and Plaintiff is requesting the production of electronic documents. This Court finds that there is no violation of the 100-mile limitation for electronic documents pertaining to Rule 54.”

Two weeks later, Judge Cauthron also denied the defendant’s motion to quash the subpoena.

So, what do you think?  Should there even be a 100-mile limitation for discovery?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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

Today is the Day to Learn How eDiscovery Case Law from Earlier This Year Can Guide You in Future Cases: eDiscovery Case Week

eDiscovery Case Week continues during The Discovery Channel’s Shark Week (that’s the other discovery)!  Legal precedents set by past case law decisions remain one of the best ways to guide lawyers on how to do their job and avoid mistakes made by others, especially when it relates to eDiscovery best practices.  Are you aware of recent case law decisions related to eDiscovery best practices and what that those decisions mean to your organization?  Get up to date today!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2018.  This one-hour webcast will cover key case law covered by the eDiscovery Daily Blog during the first half of 2018 to enable lawyers to learn from these cases — 22 cases in all! Key topics include:

  • Is there a template for how parties should cooperate in a Technology Assisted document review?
  • Should a plaintiff be allowed to email all defendant employees to see if they have responsive documents?
  • Will fabrication of text messages result in sanctions post Rule 37(e)?
  • Can Twitter be compelled to produce direct messages between their own employees?
  • Can an individual be compelled to produce private Facebook photos by the opposing party?
  • How have proportionality considerations in the 2015 Federal rules affected scope of discovery?
  • Should a receiving party be granted a quick peek at privileged documents to resolve privilege disputes?
  • Should border searches of electronic devices require a warrant?
  • Can you be sanctioned for discovery violations even after a jury verdict?

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

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

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

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

SCOTUS Says Warrantless Access of Cell Phone Locations Violates Fourth Amendment: eDiscovery Case Week

eDiscovery Case Week continues!  We’re catching up on cases leading up to our webcast tomorrow where Tom O’Connor and I will be talking about key eDiscovery case law for the first half of 2018.  With that in mind, this is a key case decision that happened when I was on a family vacation last month.  Did you miss it?  In case you did, here it is.

In Carpenter v. U.S., No. 16–402 (U.S. June 22, 2018), The United States Supreme Court (SCOTUS) held, in a 5–4 decision authored by Chief Justice Roberts, that the government violates the Fourth Amendment to the United States Constitution by accessing historical records containing the physical locations of cellphones without a search warrant.

In 2011, Timothy Carpenter was arrested on suspicion of participating in a string of armed robberies at RadioShack and T-Mobile stores in Michigan and Ohio. In the course of the investigation, FBI agents acquired transactional records from Carpenter’s cell phone carrier. The government sought this data pursuant to the Stored Communications Act of 1986, which allows law enforcement to obtain communications records by demonstrating “specific and articulable facts” that the records are relevant to an ongoing investigation, rather than probable cause that a crime has been committed. The trial court denied Carpenter’s motion to suppress the records, and a jury convicted him of firearms violations and violations of the Hobbs Act. On appeal, Carpenter maintained that the acquisition of his cellular data without a warrant violated his Fourth Amendment rights, but the Sixth Circuit held that such a seizure did not constitute a “search” under the Fourth Amendment.  Carpenter petitioned to have the case heard by SCOTUS, which heard arguments in November 2017.

The Court issued its decision on June 22, 2018, with the court split 5–4 to reverse and remand the decision by the lower courts. In a very lengthy ruling, Chief Justice Roberts wrote the majority opinion, with associate Justices Ginsburg, Breyer, Sotomayor, and Kagan joining Roberts’ opinion. The majority determined that the third-party doctrine applied to telephone communications in Smith v. Maryland could not be applied to cellphone technology and ruled that the government must obtain a warrant in order to access historical cellphone records. Roberts argued that technology “has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.”

Roberts also considered that “detailed, encyclopedic and effortlessly” tracking a person by cell towers was similar to that of using a Global Positioning System (GPS) tracking device as determined by United States v. Jones. Roberts stressed that the decision is a very narrow ruling; it does not affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues.

Justices Kennedy, Thomas, Alito, and Gorsuch each wrote dissenting opinions.  Justice Alito wrote in his dissent:

“I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.”

So, what do you think?  Does this ruling appropriately limit law enforcement use of private cell phone location data without a warrant or does it hamstring the ability for law enforcement to adequately investigate suspects?  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.