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Electronic Discovery

Court Vacates Order Requiring Defendant to Review and Produce as Much as Three Million Emails: eDiscovery Case Law

As we approach “case week” in a couple of weeks and our webcast on Key eDiscovery Case Law Review for the First Half of 2018 on Wednesday, July 25th, we’re catching up on a handful of cases from earlier this year.  Enjoy!

In Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT. (M.D. Fla. Feb. 27, 2018), Florida District Judge Steven D. Merryday sustained the defendant’s objection to an order requiring the defendant to produce all documentation related to do-not-call requests received between September 2012 and June 2013 and also required the plaintiff to move for class certification by April 13.

Case Background

In this case involving a dozen calls to an individual who had placed her number on the national do-not-call registry but had inquired about a mortgage from the defendant, the plaintiff sued the defendant for calling with an artificial or prerecorded voice, for calling a number on the national do-not-call registry (a violation of 47 C.F.R. § 64.1200(c)), and for calling the plaintiff before “institut[ing]” several procedures required by a Telephone Consumer Protection Act (TCPA) regulation.  The court eventually granted summary judgment on the first two claims, but denied summary judgment on the Section 64.1200(c) claim because of “two predominant disputes of material fact.”

The plaintiff had originally all documentation related to requests received by the defendant requesting that it not contact (or revoking consent to contact) consumers, even though the TCPA contains a four-year limitation for documentation requested.  The defendant objected for several reasons, including the burden and the relevance of the plaintiff’s requests, stating that the requests require collecting and reviewing at least three million e-mails, a review that might cost millions of dollars.  Nonetheless, on May 5, 2017, the magistrate judge partially granted the plaintiff’s motion to compel, calling the plaintiff’s requests “overly broad and disproportionate to Plaintiff’s needs at this stage of the proceedings”, but also “not wholly irrelevant to Plaintiff’s allegations” and ordered the documentation to be provided for the period between September 2012 and June 2013.  The magistrate judge also denied the defendant’s quick motion for clarification or reconsideration of the May 5 order, even after the defendant indicated that compliance would require dozens of employees to spend months on document review and would cost at least hundreds of thousands of dollars.  The defendant objected to both orders, arguing that it had “already produced 12,000-plus pages of records relating to 450,000 phone numbers and individuals,” and that complying with the order “might require 15,000 hours of a Quicken employee’s or of outside counsel’s time.”

Judge’s Ruling

In ruling on the defendant’s objection, Judge Merryday stated: “For too long, Nece has avoided confronting the reality that individualized issues often predominate in putative TCPA class actions involving a dispute about consent or the revocation of consent…The resolution of Nece’s claim will require the jury to parse Nece’s words and to determine when Nece revoked consent to a call. As the February 14 order explains, several ‘unique’ or idiosyncratic facts (including the phrasing of Nece’s comments and Nece’s repeated submissions) contribute to the determination whether Quicken stopped calling Nece within a reasonable time. In this circumstance, Nece’s class-discovery requests impose on Quicken a burden disproportional to the needs of this action. Because the May 5 order clearly erred by requiring Quicken to respond to the requests, Quicken’s objection (Doc. 77) is SUSTAINED, and the May 5 order is VACATED to the extent the May 5 order conflicts with this order.”

As for the plaintiff’s request to extend the deadline for class certification, Judge Merryday stated: “Class-certification discovery remained available to Nece for eleven months. In that time, Nece ‘propounded [sixty-one] requests for production, [ten] interrogatories, and [twenty-five] requests for admission.’…Quicken provided more than ten-thousand records about the putative class.”  However, Judge Merryday allowed the plaintiff to move for class certification by April 13, 2018 (earlier than the plaintiff requested date of August 16, 2018), even though the local rule deadline to do so was December 7, 2016.

So, what do you think?  Should the magistrate judge’s order have been vacated?  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.

In California, Data Privacy Foresight is 2020: Data Privacy Trends

2018 is certainly on its way to becoming the year of data privacy rights for the individual.  Barely over a month after the General Data Protection Regulation (GDPR) came into effect in the European Union, California has passed a new data privacy law which will give consumers the right to obtain data collected about them, the right to request deletion of the data, and the right to direct a business not to sell the information to third parties.

As reported by the ABA Journal, ARS Technica and Ride the Lightning (among other sites), the California Consumer Privacy Act of 2018 was approved unanimously by the state Senate and Assembly on June 28 and was signed by Gov. Jerry Brown.  The law is set to take effect on January 1, 2020 (which explains my “clever” blog title)… :o)

A legislative bill summary says the law will give Californians “the right to know what PI [personal information] is being collected about them and whether their PI is being sold and to whom; the right to access their PI; the right to delete PI collected from them; the right to opt-out or opt-in to the sale of their PI, depending on age of the consumer; and the right to equal service and price, even if they exercise such rights.”

The bill requires companies to disclose personal data collected when a consumer requests it, up to two times a year, and to delete and stop selling the personal information to third parties upon request.  It also prevents businesses from selling personal information about minors to third parties, unless the parent of a minor less than 13 affirmatively authorizes the sale, or the minor between the ages of 13 and 16 opts in to the sale.

A consumer whose data is hacked is entitled to recover statutory damages of up to $750 in a civil suit when companies fail maintain reasonable security procedures. However, consumers can’t sue unless they 1) first notify the business and the state attorney general, 2) the business doesn’t correct the problem in 30 days and 3) the state attorney general does not bar the suit.  A lot of contingencies and a small damage amount, though that number could add up if several consumers are involved and sue.  Also, intentional violations can bring civil penalties of up to $7,500 per violation.

The group Californians for Consumer Privacy had sponsored a ballot initiative and had gathered roughly 625,000 signatures to get the initiative on the ballot in November, but group chair and ballot question sponsor Alastair Mactaggart agreed to pull the question if the state passed the bill by June 28, the last day in which the question could be pulled from the ballot.

Will other states follow suit?  In 2018, the year of data privacy, I wouldn’t be surprised if they do and do so quickly.

So, what do you think?  Does this law go far enough in protecting data privacy rights of Californians?  Or does it fall short?  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.

The Sedona Conference Has You Primed to Learn Best Practices for Handling Social Media: eDiscovery Best Practices

As Tom O’Connor and I discussed in our webcast last month, handling social media in discovery can be challenging.  Now, The Sedona Conference® (TSC) has updated a primer to help with social media issues.

TSC and its Working Group 1 on Electronic Document Retention & Production (WG1) have announced the publication of the Public Comment Version of The Sedona Conference Primer on Social Media, Second Edition.

The first edition of the Primer was published in 2012 (light years ago in social media terms) and was designed to be a useful resource on various information governance and litigation issues, as it established a practical approach for addressing the corporate use and management of social media. Since 2012, however, there has been a proliferation of new messaging technologies and business applications, in addition to major evolution in “traditional” social media platforms like Facebook, Twitter, and LinkedIn – because they have such a long “tradition”, of course :o). There have also been significant developments in the law addressing social media and in the rules of discovery, evidence, and professional responsibility. In light of these developments, this edition of the Primer focuses exclusively on the discovery of social media in civil litigation. Therefore, WG1 recognized a compelling need to update the Primer and has prepared a public comment version of this Second Edition.

After the one-page introduction (Section I of the Primer), Section II of the Primer discusses traditional and emerging social media technologies and the discovery challenges that they present. Section III examines relevance and proportionality in the context of social media. It also explores preservation challenges, collection and search obligations, and the impact of the Stored Communications Act (“SCA”), together with review and production considerations. Section IV describes the impact of cross-border issues on social media discovery while Section V explores authentication issues. The Primer analyzes ethical issues that lawyers should consider in connection with social media discovery in Section VI before ending with a one paragraph conclusion section.  The Primer weighs in at a fairly tidy 58 page PDF file, so it’s a reasonable read.

The Primer on Social Media, Second Edition is open for public comment through September 10, 2018. Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.  And, a webinar on the Primer is scheduled for Wednesday, August 8, 2018, at 1 pm EDT. Further details will be announced by email and on The Sedona Conference website once registration is open. The webinar will give you the opportunity to ask questions and provide and gain additional insight on this important topic.

To download the Primer, free of charge, click here.

So, what do you think?  Do you have challenges in handling social media in litigation?  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.

Learn How eDiscovery Case Law from Earlier This Year Can Guide You in Future Cases: eDiscovery Webcasts

Legal precedents set by past case law decisions remain one of the best ways to guide lawyers on how to do their job, especially when it relates to eDiscovery best practices.  Case law examples help lawyers avoid mistakes made by others, as well as saving time and money for their clients.  Are you aware of recent case law decisions related to eDiscovery best practices and what that those decisions mean to your organization?

On Wednesday, July 25th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2018.  So, why the shark?  Once again, we’re conducting our eDiscovery case week (which includes our case law review webcast) on The Discovery Channel’s Shark Week (that’s the other discovery).  Why Shark Week?  Why not?

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. 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!

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.

At Long Last, Apple v. Samsung is Finally Over: eDiscovery Trends

Without a doubt, the case that has generated more eDiscovery Daily blog posts than any other over our nearly eight years of existence has been the Apple v. Samsung case.  We published at least fifteen posts regarding the case since 2012 (click here to search our blog for “Samsung” and the first fifteen posts are about the case) and could have easily published more – if there were more notable eDiscovery issues to discuss.  Now, finally – quietly – it’s all over.

In this Legaltech News article (Apple and Samsung Call a Truce in Long-Running Smartphone War, written by Scott Graham), the author notes that lawyers for Apple Inc. and Samsung Electronics Co. informed U.S. District Judge Lucy Koh of the Northern District of California on Wednesday that “they have agreed to drop and settle their remaining claims and counterclaims in this matter.”  Terms of the settlement were not disclosed.

Koh, who has presided over four trials between the parties, wasted no time, entering an order of dismissal minutes later.

The agreement comes a month after a damages retrial that ended in a $538 million award for Apple. Although Samsung had persuaded the U.S. Supreme Court to adopt a more favorable rule on lost profits in design patent cases, the amount was roughly $140 million more than awarded against Samsung for design patent damages following the parties’ first two trials, in 2012 and 2013. (It was, however, $238 million less than the total originally awarded for patent design and trade dress dilution across all infringing products).

Samsung had vowed to appeal, and also was seeking to claw back $145 million awarded at the first trial on a utility patent that has since been invalidated by the Patent Trial and Appeal Board.  However, the parties have also since been conducting settlement talks, though the details—including who’s been presiding over them—have remained secret.

The first jury that heard the case, in 2012, awarded Apple $1.049 billion for infringement of design and utility patents and for trade dress dilution.  Over the years, the award was revised a number of times and the award dispute even made it to the Supreme Court, where SCOTUS told the federal appeals court to take another look at the $399 million award won by Apple.  This case had it all – adverse inference instruction sanctions on both sides and, of course, the “patentgate” disclosure (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia (which cost Samsung and Quinn Emanuel a $2 million sanction).

Now, it’s all over.  We think.

What would you think if I sang out of tune, would you stand up and walk out on me?  Since I’m a blog writer and not a singer, it’s a moot point, but – just like John Lennon (and Joe Cocker) – I get by with a little help from my friends.  Thanks to Tom O’Connor for his Litigate or Settle? Info You Need to Make Case Decisions white paper last week and to Jim Gill for his post about facial recognition software in airports, I was able to take a week off with my family last week and we were able to give you fresh new posts instead of re-run posts like we have done in past years.  Thanks guys!

So, what do you think?  Will we see a “battle of titans” like Apple v. Samsung again anytime soon?  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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Four

This overview is the final of a four-part series, presented separately.   For your reference, the previous articles can be accessed through these individual links:  Part One;  Part Two;  Part Three.

Series Conclusion

The litigation world has changed dramatically in the past fifty years.  In 1962, 11.5% of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8% despite a five-fold increase in the number of civil filings. Those figures aren’t a result of increased eDiscovery activity (ABA Journal of Litigation 2004).

In state courts, a U.S. Justice Department study of the nation’s 75 largest counties found that nearly 97% of civil cases are settled or dismissed without a trial. The number of cases going to trial fell from 22,451 in 1992 to 11,908 in 2001, according to the same study. (source: Bureau of Justice Statistics)

But is eDiscovery the culprit? Yes, eDiscovery is expensive but numerous other factors, especially ADR and extended motion practice, have been much greater contributors to the reduction in cases going to trial.  And current trends in early case assessment and early data assessment, much more than the overall costs of eDiscovery, may be playing a higher part in ongoing reduction of trials than previously understood.

The decline in the number of trials does not necessarily imply a reduction in access to justice.   eDiscovery is still an effective tool in ADR and class actions and MDL practice, which has replaced much of standard litigation, a factor which does not appear in traditional trial statistics.

Litigation as a process to preserve legal remedies appears to be as robust as ever.  The modern difference is the traditional jury trial is no longer the final resolution of the process.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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 us on several recent webinars.  Tom has also written several informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions we’re happy to share on the eDiscovery Daily blog.  Enjoy!

 

 

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, 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 eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published on Monday and part two was published on Tuesday.  Here’s the third part.

eDiscovery Considerations

So where does eDiscovery fall in this discussion? Where does it fall in the list of factors noted above which influence the decline of trials? How do we use eDiscovery to decide if a case should be settled?

First of course is the proportionality analysis that is so much a part of the current rules. Simply put, is a settlement offer reasonable within the scope of the monetary value of the litigation? If it is wildly disproportionate to the amounts in controversy, then you will need to decline the settlement offer. If it is reasonable, but not quite acceptable, then it is appropriate to make a counter-proposal.

Current eDiscovery tools for ECA and EDA can help make this determination as you are able to quickly and accurately review documents to assess damage claims and potential liability issues. Accurately identifying the documents to be handled should be a routine part of the Rule 26(f) conference and subsequent discovery plan and thus give you a confident assessment of the economic value of the case very early on.

Second is the timing of any proposed settlement. After the 26(f) conference and attendant issues have been resolved, have you received enough information to evaluate any offer or make a proposal? Or do you need more time to continue discovery and make such an assessment? This is where eDiscovery and ECA can be especially helpful since the FRCP encourage discovery and assessment of ESI at an early stage which can help in this decision.

Third, you must ask whether negotiations will be fruitful. All negotiations and any ultimate settlement require some degree of compromise by both parties and a critical factor in that process may be knowing when is the right time to negotiate.

If you have a sense in your case that emotions are running high and no negotiations are possible it may better to proceed with your ECA and simply wait until the case evolves more before attempting a settlement.

Fourth is the cost of eDiscovery which is the classic proportionality analysis. The  process of eDiscovery, and thus eventually trial, will be expensive and if that expense is more than the value of the case, settlement to avoid the ultimate costs of litigation is likely a better choice.

Remember that the review portion of the eDiscovery process is typically 2/3 of the eventual total cost so your initial costs of preservation, collection, processing and ECA can give you a good ballpark figure for your total eDiscovery costs. That figure, in turn, can drive an assessment of whether settlement negotiations are in order.

Fifth if the outcome of the case is unpredictable, that is if your case appears to be a toss-up, you may be better off with a settlement. Essentially this is a risk assessment of the ultimate cost of expenses, court fees and attorney fees if you don’t win.

Finally, consider the hard to define value of business goodwill. Sometimes a reputation in the business community as being a reasonable person has a value that can’t be quantified. Your legal action may be justified, even necessary, but extensive publicity about ongoing litigation may outweigh those factors.  When parties understand that a reputation in the business community has an inherent value, settlement may be a good choice.

We’ll publish Part 4 – Conclusions – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  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.

Facial Recognition Software Coming to an Airport Near You: eDiscovery Trends

Air travelers have already become accustomed to standing in the brightly painted footprints at security checkpoints and raising their arms in order to be scanned, but this month in Orlando, a new type of scan is taking place. Last month, Geneva-based tech company SITA installed cameras with facial recognition software at the Orlando International Airport in conjunction with British Airways and U.S. Customs and Border Protection (CBP).

When people step up to be scanned, a photo is taken of their face, it’s sent to CBP, who then matches the photo to the person booked on the manifest, and if it matches, the gates open and the passenger can board, all in a matter of seconds. If there isn’t a match, the passport is scanned manually by the gate agent.

The hope is to bring efficiency to the process of making sure people are who they say they are. The TSA is also testing similar technology for security check-ins, with Steve Karoly, acting assistant administrator at TSA, says it’s a “game changer.”

But according to a report released by the Center on Privacy and Technology at Georgetown Law School, the system is full of technical and legal issues, with a rejection rate of 4 percent. One issue the report cites is bias, with higher rates of false rejections occurring because of race and gender. Another report, conducted by the CAPA-Centre for Aviation, said the face-recognition software isn’t good at “identifying ethnic minorities when most of the subjects used in training the technology are from the majority group.”

Privacy is another concern as the Department of Homeland Security doesn’t have any rules for protecting Americans’ privacy and use of this data, but CBP says it deletes the photos within 14 days. It’s still unclear how GDPR compliance comes into play, especially with travelers who are EU citizens. But so far, most people who have used the technology aren’t concerned with privacy as long as it speeds up the boarding process.

This is still very much in the testing phase, although President Trump signed an executive order last year to increase the use of biometric tracking for airport security. As this type of technology becomes more and more widespread with uses outside of airport security, it’s also inevitable that litigation surrounding this technology with also rise.

In China, police are using AI-powered CCTV cameras to enforce jaywalking laws. If the cameras catch you outside of the crosswalk, the facial recognition software links with cellphone systems, and a text message is sent to your phone letting you know you’ve been fined.

But even if the technology isn’t the primary reason for the lawsuit, the electronically stored information created by scanners could potentially become relevant to discovery. This has certainly happened with other relatively new data sources with a rise of text messages, social media, and data from the Internet of Things being preserved as evidence more and more in both the civil and criminal courts.

It will be interesting to see how the use of this technology grows, but it’s also a reminder to organizations, who may be contemplating facial recognition software for various applications, of the need to consider the potential implications of how biometric data could be preserved and collected should litigation arise.

So, what do you think?  How do you see the rise of facial recognition technology affecting your eDiscovery practices and policies in the future?  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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, 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 eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Modern Litigation History

First, let’s consider the rise in class action and MDL litigation.  In 1962, U.S. Supreme Court Chief Justice Earl Warren appointed a special committee to improve the efficiency of the legal system. Alfred P. Murrah, CJ of the 10th Circuit, was named chairman and his committee members came up with then revolutionary solutions that are still used today, ideas such as combining depositions and discovery and combining lawsuits involving similar complicated claims into a single case.

By 1967, backlogs in the Federal court system had been cleared and the committee discovered large numbers of similar, complex cases were common across the U.S. court system. They recommended that a permanent panel be set up to handle these types of matters and Congress created the JPML in 1968.

Now, by some estimates, as many as one in every seven civil lawsuits filed in federal court are or will become part of a multi district litigation and these cases involve as many as 60% of all plaintiffs in Federal civil suits.  Since a high number of these cases settle, the number of trial associated with these litigants is also dramatically lessened.

Second, since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary judgement motions has increased and seems clearly linked to the decrease in the number of trials.

Third, let’s consider that a high number of cases are now resolved by nonjudicial means, through alternative dispute resolution (ADR) methods such as compulsory mediation or arbitration clauses in contracts.

Fourth, changes in the FRCP which emphasize docket management have led many judges to become more active in management of the case before them.  FRCP 16 in particular was amended to require judges to monitor closely the management of cases (The Proposed FRCP Amendments Intended to Foster “Judicial Management”) and these changes have helped push early case resolution.

Finally, of course, the overall cost of litigation has risen dramatically. Bluntly put, the cost of making a wrong decision on whether to litigate wrong is getting more expensive. A seminal study of both federal and state court data in 2004 by DecisionSet found that making a wrong decision on litigating can cost a plaintiff about $43,000 and for defendants, who were less often wrong about going to trial, the cost could easily exceed $1 million.

We’ll publish Part 3 – eDiscovery Considerations – on Thursday.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices

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 eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

I have heard a great deal of anecdotal discussion lately about fewer and fewer cases going to trial, with an implied criticism that the cost of eDiscovery is somehow at the root of this phenomenon.  Indeed, the national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.

I decided to investigate both of these statements and was surprised by what I found. First, the decrease in cases going to trial is nothing new and in fact far pre-dates the eDiscovery changes to the FRCP.  Second, there are several clear reasons for this decline, all unrelated to any eDiscovery issues.

We’ll explore these reasons and other issues in this paper, as follows:

  1. Background
  2. Modern Litigation History
  3. eDiscovery Considerations
  4. Conclusions

Background

Each year the Administrative Office of the United States Courts (AOC) is required to provide a report of statistical information on the caseload of the federal courts for the 12-month period ending March 31.  According to AOC statistics, from 1962 through 1985, federal civil trials doubled, increasing every year. Trials then began declining in 1986 with a dramatic decline commencing in 1990. By 2006 there were only half the number of federal civil trials that there were in 1962 and since 2006, civil trials have continued to decline although at a much slower pace.

This phenomenon was so well known by the late 90’s that it was actually termed the “vanishing trial” by numerous commentators and led to many dire pronouncements about the future of the US legal system. Typical was a 2005 pronouncement by Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts that “[t]he American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.”  (What the Vanishing Trial Lawyer Means for In-House Counsel, and 5 Things They Can Do, Corporate Counsel, Oct. 14, 2016)

But the AOC report for 2017 also showed that the number of civil case filings was actually up 6%, a trend that has been present during the same period that the number of trials declined. Which clearly begs the question, if case filings continue to rise but trials continue to decline, what is going on in between those two events to cause the decline?

We’ll publish Part 2 – Modern Litigation History – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  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.