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Electronic Discovery

EDRM Needs Your Input on its TAR Guidelines: eDiscovery Best Practices

I’m here in Durham, NC at the annual EDRM Spring Workshop at Duke Law School and, as usual, the Workshop is a terrific opportunity to discuss the creation of standards and guidelines for the legal community, as well as network with like minded people on eDiscovery topics.  I’ll have more to report about this year’s Workshop next week.  But, one part of the Workshop that I will touch on now is the release of the public comment version of EDRM’s Technology Assisted Review (TAR) Guidelines.

Last Friday, EDRM released the preliminary draft of its TAR Guidelines for public comment (you can download it here).  EDRM and the Bolch Judicial Institute at Duke Law are seeking comments from the bench, bar, and public on a preliminary draft of Technology Assisted Review (TAR) Guidelines. Nearly 50 volunteer lawyers, e-discovery experts, software developers, scholars and judges worked on this draft under the auspices of EDRM. A version of the document was presented at the Duke Distinguished Lawyers’ conference on Technology Assisted Review, held Sept. 7-8, 2017. At that event, 15 judges and nearly 100 lawyers and practitioners provided feedback and comments on the draft. The document was further revised based on discussions at that conference, additional review by judges and additional review by EDRM members over the past couple of months (which involved significant changes and a much tighter and briefer guideline document). With the assistance of four law student fellows of the Bolch Judicial Institute, this draft was finalized in May 2018 for public comment.

So, calling this a preliminary draft is a bit of a misnomer as it has already been through several iterations of review and edit.  Now, it’s the public’s turn.

EDRM states that “Comments on this preliminary draft will be carefully considered by the drafting team and an advisory group of judges as they finalize the document for publication. Please send comments on this draft, whether favorable, adverse, or otherwise, as soon as possible, but no later than Monday, July 16, 2018. Comments must be submitted in tracked edits (note: the guidelines are in a Word document for easy ability to track changes) and submitted via email to edrm@law.duke.edu. All comments will be made available to the public.”

That’s all well and good and EDRM will hopefully get a lot of useful feedback on the guideline document.  However, one thing I have observed about public comment periods is that the people who tend to provide comments (i.e., geeks like us who attend EDRM workshops) are people who already understand TAR (and think they know how best to explain it to others).  If the goal of the EDRM TAR guidelines is to help the general bench and bar better understand TAR, then it’s important for the average attorney to review the document and provide comments as to how useful it is.

So, if you’re an attorney or legal technology practitioner who doesn’t understand TAR, I encourage (even challenge) you to review these guidelines and provide feedback.  Point out what you learned from the document and what was confusing and whether or not you feel that you have a better understanding of TAR and the considerations for when to use it and where it can be used.  Ask yourself afterward if you have a better idea of how to get started using TAR and if you understand the difference between TAR approaches.  If these guidelines can help a lot of members of the legal profession better understand TAR, that will be the true measure of its effectiveness.

Oh, and by the way, Europe’s General Data Protection Regulation is now in effect!  Are you ready?  If not, you might want to check out this webcast.

So, what do you think?  Will these guidelines help the average attorney or judge better understand TAR?  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.

eDiscovery for the Rest of Us: eDiscovery Best Practices, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including 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 and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part One was published last Tuesday, Part Two was published last Thursday and Part Three was published on Tuesday.  Here’s the final part, Part Four.

The EDna Challenge, 2016

In 2016, Craig Ball revisited the Edna challenge with a new set of parameters and a panel at the annual ILTA conference on which I was privileged to be a participant. The panel sought what Craig called “… a re-examination of EDna options circa 2016 on a bigger budget.” https://craigball.net/2016/04/15/edna-still-cheap-and-challenged/ .

In this new challenge, Edna had a Zip file on a thumb drive containing collected ESI in various formats: 10 custodians with ESI PSTs for six of them, four MBOX take outs from Gmail for the other four and a combination of  word processed documents, spreadsheets, PowerPoint documents, PDFs and a few scanned paper documents for all ten. She estimated the contents will unzip to about 10-12 GB with somewhere between 50,000 to 100, 000 documents total.

The goal was to conduct a paperless privilege and responsiveness review of the material in-house, sharing the task with an associate and legal assistant.  All staff had high-end, big screen desktop PC running Windows 8.1 with MS Office 2016 and Adobe Acrobat 11 Pro installed and the office’s network file server had ample space for the document collection.

The specific goals were:

  • Efficient workflow
  • Robust search
  • Ability to process relevant metadata
  • Simple document tagging and production identification
  • Effective tracked deduplication
  • Review may take up to 90 days, and the case may not conclude for up to two years.  All review, hosting and production costs must be borne by the budget.

Edna didn’t own a review tool and was willing to spend up to $5,000.00 total for software, vendor services, SaaS, etc.  Craig’s only restrictions on responses were “She won’t spend a penny more.  You can’t loan her your systems or software.  You can’t talk her out of it.  Pricing must mirror real-world availability, not a special deal.”

The good news was that the increase in budget accompanied by the shift to Web based solutions made a dramatic change in the responses. As one independent analyst noted, if kept to 3 months hosting, more than 70% of the companies he worked with could meet the challenge. Brad Jenkins, CEO of CloudNine (the host of this article) noted that the CloudNine software would allow Edna  “… access to a complete eDiscovery platform for processing, review, and production. She can upload her data for automated native processing, review her data in CloudNine’s integrated review tool, and produce her data in almost any format.”  All for under the limit of the challenge.

What’s Next?

The next step in the market of technology for the rest of us is growth of Internet based tools.  We are now seeing even more budget conscious solutions in a SaaS environment, solutions that work with common native format files where you host your own data with programs installed locally that are able to accommodate smaller data collections.

Some of these are well-established companies such as Relativity or Ipro Tech and others are newer companies such as CloudNine, Digital War Room, Logikcull, CS Disco and Everlaw. Some of them also incorporate some form of front-end analytics to significantly reduce the amount of data to be processed as well as TAR or predictive coding technology to enable faster review of documents.

Conclusion

But the ultimate solution is more than just knowing the rules, avoiding e-jargon and understanding the technology. In our estimation, it is the process not the technology.

We are not alone in this appraisal. Technologist John Martin once commented, “It’s the archer not the arrow.” Craig Ball says, “The key consideration is workflow”.

The fact is that technology is not the key to successful management of e-discovery in small cases. Rather, the single most effective way to keep eDiscovery costs low is to work with your opposition in a cooperative manner so you can stipulate to the use of low cost solutions.

We all must change to the new paradigm of working in the digital world. In the words of The Hon. Lee Rosenthal, former Chair of the Standing Committee of the Judicial Conference, “Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust.”

Craig Ball described it as “throwing down the gauntlet in the Edna Challenge when he said, “So, how about it e-discovery industry? Can you divert your gaze from the golden calf long enough to see the future and recall the past? Sam Walton became the richest man of his era by selling to more for less. There’s a fast-growing need…and a huge emerging market.  The real Edna Challenge is waiting for the visionaries who will meet the need and serve this market.”

I think we’re very close to being there.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  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.

Judge’s Ruling on Scope Under Rule 26 Brings a Mixed Bag of Motions Granted and Denied: eDiscovery Case Law

In TMJ Grp., LLC v. IMCMV Holdings, No. 17-4677 (E.D. La. April 6, 2018), Louisiana Magistrate Judge Janis van Meerveld ruled on Motions to Compel by both parties, both of which were granted in part and denied in part.

Case Background

The plaintiff, TMJ, alleged that it had been fraudulently induced to invest in two Margaritaville restaurants (one in the Mall of America and one in New Orleans) by the defendants. An interesting aspect of the discovery motions is TMJ’s allegation that it sought and obtained financing for the investment at issue in this lawsuit from FNBC Bank and that IMCMV altered financial figures in the financial statements so that FNBC would approve the financing after initially rejecting it.

IMCMV’s Motion to Compel

The first item at issue was the defendant’s motion to compel the redacted communications between FNBC and the plaintiff, which were ordered for in-camera review, as well as several depositions given after the discovery deadline. As a result, issues arose around scope of discovery under FRCP Rule 26.

The plaintiff submitted much of their document production right before or on the discovery deadline (around 3,700 pages) and as a result, the defendant said it didn’t have all the relevant documents available for the depositions where some FNBC documents were discussed, and because it did not have sufficient time to review those documents prior to the deposition, they argue that they “had an incomplete picture of the relationship, agreements, and documents, exchanged between FNBC and TMJ.”

The defendant also sought to compel the deposition of one or more former FNBC representatives, pointing out that the FNBC representatives are listed on both parties’ witness lists. However, because they did not have all of the FNBC documents prior to the discovery deadline, they initially decided not to depose FNBC. The late production of documents caused them to revisit this decision.

The plaintiff opposed the deposition of any FNBC representatives, claiming the request is untimely, because they identified FNBC personnel in its initial disclosures and earlier document production and that the defendant had long had sufficient information to determine whether to take such depositions. The plaintiff insisted it would be prejudiced if the depositions were allowed, given that trial was imminent.

TMJ’s Motion to Compel

The plaintiff’s motion to compel sought certain financial documents, including tax returns and schedules, financial statements, and accounting ledgers for all of the defendant’s other Margaritaville restaurants, insisting the documents were relevant, because the defendant’s financial forecasts were based on comparable IMCMV owned restaurants, which influenced their decision to invest.

The defendant claimed these financials were irrelevant and disproportional as the other restaurants are not a part of this litigation. The defendant explained that this data was already produced in Excel files which was considered by their expert.

The plaintiff also demanded responses to its interrogatories regarding the reasoning behind changes to financial statements made while the investments at issue here were being negotiated, alleging that the defendant altered them to make the investment appear more attractive to the plaintiff and FNBC. The plaintiff makes note that their identical responses to the three requests aren’t “boilerplate,” but that they meaningfully explain how changes were made by stating that “in preparing financial projections, [IMCMV] takes into account planned seating capacity, estimated revenue per seat per year, the financial results of other Margaritaville-themed restaurants, the location, market competitors, and the labor market.”

The plaintiff also sought text messages between the parties, pointing out that they frequently corresponded in this manner. The defendant responded that their former chief development officer left the company, and they had not been able to access his iPhone. The defendant requested passcodes from the former CDO, but those didn’t work. Another individual who also was no longer working for IMCMV, had custody of the phone in the interim, but he had reset the phone and added a new passcode. The defendant then contacted Apple and its carrier, AT&T, who both indicated that the passcode could not be bypassed without resetting the phone.

Judge’s Ruling

Regarding IMCMV’s motions, there was no real dispute that a deposition of an FNBC representative is within the scope of discovery. Judge van Meerveld ruled that “a second deposition of Motwani [an FNBC Bank representative] is appropriate here in light of the documents produced after his deposition. The scope of the deposition shall be limited to the documents produced after Motwani’s deposition, and any other documents or issues required to give context to, provide clarification of, to contrast with, or explain discrepancies with the documents produced after Motwani’s deposition. This could, therefore, permit reference to earlier produced documents.” Accordingly, an extension of the discovery deadline was provided, and the defendant “may proceed with a deposition of one FNBC representative and, if necessary due to that representative’s inability to provide complete answers, a second FNBC representative.”

In regard to the plaintiff’s motions, Judge van Meerwald agreed that “the financial documents for the other Margaritaville restaurants are not relevant or proportional to the needs of this case. TMJ already has the key performance indicators extracted from those financials for the purpose of creating the business cases and pro formas for the proposed investment. The relevance of the financial statements of the other restaurants is too tangential to justify the burden of production.” As to these documents, the motion to compel was denied.

As to the plaintiff’s demand that certain financial documents be produced in Excel rather than PDF format, the court found the burden to the defendant “too great to justify IMCMV undertaking that endeavor here. However, the Court has ordered the parties to work together to provide the documents in their native format. If this is unsuccessful, the parties may contact the chambers of the undersigned to set up a telephone conference to discuss.”

So, what do you think? Did the judge interpret the idea of scope under Rule 26 correctly?  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.

Fourth Circuit Rules that Warrantless Cell Phone is Warranted: Data Privacy Trends

Don’t let my cute title confuse you.  In this case, the Fourth Circuit issued an interesting decision regarding whether a warrant is required to search an individual’s cell phone.

According to Sharon Nelson’s terrific Ride the Lightning blog (4th Circuit Says Border Search of Phones Requires Individualized Suspicion (But Not a Warrant)), on May 9th, the Fourth Circuit Court of Appeals issued a decision in US v. Kolsuz, ruling that in light of the immense privacy concerns, forensic searches of electronic devices seized at the border must be justified by individualized suspicion, or some reason to believe that a particular traveler had committed a crime.  But not a warrant.

The appeals court said border patrol officers had reasonable suspicion to conduct a forensic search of Hamza Kolsuz’s cellphone, and they were entitled to rely on that standard based on case law that suggested it was, at most, all that was required. The officers had seized Kolsuz’s phone after they found firearms parts that required an export license in his checked luggage. It was the third time weapons parts were found in his luggage.  That certainly seems like reasonable suspicion to me.

The forensic search of Kolsuz’s phone produced information that included personal contact lists, e-mails, messenger conversations, photographs, videos, calendar, web browsing history, call logs and GPS tracking history. He was sentenced to 30 months in prison after a conviction for violating the Arms Export Control Act and conspiracy.

The federal government had contended that searches of electronic devices require no warrant or individualized suspicion under an exception that allows searches of suitcases at the border.  Tom O’Connor discussed the Border Entry exception as part of his Understanding eDiscovery in Criminal Cases on our blog here.

The decision is the first federal appellate ruling to require individualized suspicion in a border search of a cellphone since the U.S. Supreme Court ruled in Riley v. California in 2014 (which Tom O’Connor also discussed on our blog here) that police generally can’t search the contents of a cellphone seized during an arrest, unless they get a warrant, according to the Electronic Frontier Foundation (EFF).

Under Riley’s recognition of the extensive information stored on cellphones, the Fourth Circuit said, the forensic search of Kolsuz’s phone should be considered a nonroutine border search that requires some measure of individualized suspicion.

The EFF and the ACLU had filed amicus briefs urging the Fourth Circuit to go further and hold that probable cause is needed before a search of electronic devices, whether it’s a manual search or one using forensic software.

After arguments in the case, the Department of Homeland Security adopted a policy that treats forensic searches of digital devices as nonroutine border searches requiring reasonable suspicion of activity that violates the customs laws or in cases raising national security concerns, according to the opinion.

The ACLU and the EFF have filed a separate lawsuit that challenges warrantless searches of electronic devices at the border.  In her blog, Sharon notes that she “remain(s) on their side.”  We can agree to disagree on this one… :o)

So, what do you think?  Should cell phone and other electronic device searches at the border require a warrant?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Here’s One Way to Comply with GDPR – Block All EU Users: Data Privacy Trends

Believe it or not, Europe’s General Data Protection Regulation (GDPR) is set to go into effect in one just one week(!), on May 25th.  Many organizations are scrambling to comply with the new regulation and a lot of them won’t have compliance sorted out in the next week.  As a result, some companies have realized it’s just too much of a hassle and decided to block all access to EU users.

According to Above the Law (Companies Respond To The GDPR By Blocking All EU Users, written by “Techdirt”), F-Secure’s Mikko Hypponen has tracked a bunch of examples of sites that give you some simple javascript to block EU visitors.  Hypponen highlighted one site (currently offline, but can be seen at the Internet Archive) called GDPR Shield that does that (assuming the requestor has Javascript turned on, and their location is determined accurately — both of which may be big assumptions). Hypponen also noted several other sites cutting off EU users, including: Ragnarok Online, Verve, Brent Ozar, Unroll.me, SMNC, Tunngle, Drawbridge and Steel Root.

Hypponen also noted the very different reactions to all of this from EU readers and US readers. EU folks seem to be generally supportive of the GDPR and think that companies shutting down service are either stupid & ignorant or evil and thus should shut down. On the US side, he noted people are smug about how this serves the EU right and will harm the EU.

I can understand the prospects of a penalty of €20 million or 4% of worldwide revenue (whichever is greater) can cause organizations to take drastic steps.  But, should those steps include blocking EU users altogether?  Seems like a great way to cut off a lot of potential revenue.  What’s better: to be penalized for not complying with GDPR or to give up potential business in a drastic attempt to avoid the penalty?

Back in February, Tom O’Connor and I discussed the aspects of GDPR and steps to comply in a webcast we conducted on the topic (and we didn’t advocate shutting out the EU users).  It’s not too late to check it out!  One week to go!

So, what do you think?  Are you ready for GDPR?  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.

Former Employee Sanctioned for Lying Under Oath, Destruction of ESI: eDiscovery Case Law

In Heggen v. Maxim Healthcare Servs., Inc., No. 1:16-cv-00440-TLS-SLC (N.D. Ind. April 27, 2018), Indiana Magistrate Judge Susan Collins ruled that the plaintiff’s destruction of requested cellphone recordings, as well as lying under oath, were sanctionable under FRCP Rule 37.

Case Background

The plaintiff filed the case against her former employer – a provider of temporary medical staffing, home health care, and wellness services – with claims of sexual harassment and retaliation. The plaintiff stated under oath that she chose to leave these employers “voluntarily” because the two clients with whom she worked were going into a nursing home.

However, the defendant pointed out that records show that the plaintiff was terminated after she refused to discuss a complaint that the plaintiff stole $300 from a client under her care, as well as mismanagement of the client’s financial assets. A discovery request to the Indiana Department of Workforce Development revealed that the plaintiff had worked for Interim Health Care immediately prior to joining the defendant, even though she responded to the first request for production with a different former employer, and then stated a second employer during her deposition. Based on the records from Interim, the defendant claimed that the circumstances of the plaintiff’s departure from Interim were “strikingly similar” to the plaintiff’s time at the defendant, including that a patient’s medications went missing – the plaintiff then tested positive for the missing medications on a drug test, and the plaintiff failed to return to work after the complaint.

The clearest contention that the defendant brought is that the plaintiff destroyed key evidence in at least three different ways and this, along with the other actions by the plaintiff, the defendant contended was grounds for a dismissal sanction. The plaintiff testified at her deposition that she made about seven recordings of unidentified defendant employees and said these recordings supported her claims against the defendant, she also testified that the Equal Employment Opportunity Commission (“EEOC”) had the recordings, because she deleted the recordings from her cell phone since she “didn’t want them to have [her] phone lost and have them be out there.” She claimed she had emailed the recordings to the EEOC, but couldn’t find any copy of the emails transmitting the recordings. After sending the emails, she performed a factory reset of her phone (an older Apple model) that basically had “broke[n] down,” and that she was trying to get working again. The reset deleted all of the data stored on it, including the recordings.

She felt that emailing the recordings to EEOC was a form of preservation and “thought it was okay to get rid of them[.]” Copies of three of the recordings were found, and the plaintiff submitted transcripts of these recordings with her response brief, and she also provided a copy of the recordings and transcripts to the defendant. However, there was no explanation for the other missing recordings.

The defendant had sought the recordings from the plaintiff for months through traditional discovery and because it did not have the recordings when it deposed the plaintiff, it felt that resulted in prejudice against them. They also argued that there was a significant difference between original recordings and copies of recordings. What the plaintiff submitted appeared to be at least two different layers of recorded conversations: “an ongoing face-to-face interaction between individuals who are supposedly simultaneously listening to and participating in a different interaction by telephone, all recorded on top of each other.”  Also, because they were copies, there was no way to delve into the original metadata of the recordings. Further, while the original recordings were made on an iPhone, the files produced were in 3GP format, a format generally used by Android phones, raising even more questions.

Judge’s Ruling

Judge Collins ruled that the defendant’s failure under oath to disclose Interim as a prior employer and for her destruction of the original cell phone recordings was sanctionable. But noted that a sanction for discovery abuse must be “a proportionate response to the circumstances.”

Judge Collins stated, “The draconian sanction of dismissal is not presently warranted here. Rather, the present circumstances warrant the imposition of lesser sanctions in the form of a monetary penalty—that is, ordering Heggen to pay the reasonable expenses, including attorney’s fees, that Maxim incurred in filing the motion to compel [See FRCP Rule 37]. The Court has no reason, at least at this juncture, to conclude that the imposition of this monetary penalty would be fruitless. The Court will also consider a spoliation instruction upon a pretrial motion by counsel should this case go to trial. The motion for sanctions is otherwise denied. Heggen is duly warned that any additional discovery transgressions may result in further sanctions against her, up to and including dismissal of this case.”

So, what do you think?  Was the ruling correct or was a sanction of dismissal warranted in this case?  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.

eDiscovery for the Rest of Us: 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 and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

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

Introduction

With the high number of eDiscovery vendors and the huge amount of ED conferences, webinars and seminars, you might ask why we would talk about eDiscovery for “the rest of us”.  eDiscovery was initially seen as the exclusive domain of large firms with large cases in Federal court.  But the fact is that firms of all sizes now must know how to handle electronic discovery efficiently and cost-effectively. Why?

First, most attorneys in private practice are employed by law firms with fewer than 20 lawyers and, in fact, half of all U.S lawyers in private practice are solo practitioners.  Smaller firms mean smaller cases. With the increase in digital activity by people in all areas of their lives, we are now seeing e-discovery become an issue in domestic disputes, employment cases and even criminal matters. All case types handled by small firms.

And the initial Federal Rules of Civil Procedure governing ESI have now been emulated in over 2/3 of the states with even an agreed-upon e-discovery exchange protocol between the offices of the U.S. Attorney and the Federal Defenders for criminal cases finding its way into state matters. Coast-to-coast, from California to Florida and from states as populous as New Jersey to mostly rural states such as Louisiana and Alabama, e-discovery is now a local issue.

Indeed, when Bruce Olson and I first gave a presentation called eDiscovery for Small Cases at the ABA TechShow in March of 2010, we didn’t expect much of a turnout.  But the room was packed and we both realized we had struck a nerve.

Why?  Bruce and I called it the Small Case Dilemma.  We’ll explore that issue and others in this paper, as follows:

  1. eDiscovery: The Early Years
  2. The EDna Challenge, 2009
  3. The Ernie Challenge
  4. The EDna Challenge, 2016
  5. What’s Next?
  6. Conclusion

We’ll publish Part 2 – eDiscovery: The Early Years and The EDna Challenge, 2009 – on Thursday.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  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.

Could We Be Close to a Second State to Approve a Technology CLE Requirement?: eDiscovery Trends

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  We covered it here.  That requirement went into effect on January 1, 2017 and CloudNine has certainly been providing several CLE courses that are technology approved in Florida.  We’ve been wondering when a second state was going to follow suit and we may be close to an answer.

According to Robert Ambrogi and his Law Sites blog (A Second State Moves Closer to Mandating Technology Training for Lawyers), the North Carolina State Bar Council has approved a proposed amendment to lawyers’ annual CLE requirements that would mandate that one hour of the required 12 hours of CLE training annually be devoted to technology training.

The council adopted the proposed amendment on April 20. The proposed amendment now goes to the North Carolina Supreme Court for approval.

The proposed amendment would also add a definition of technology training, as follows:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

However, as Kevin O’Keefe notes in his Real Lawyers blog (via a tweet by Richard Granat), the same North Carolina has just passed regulation restricting the distribution of self-help legal software over the Internet.  Go figure.

Regardless, I will be very interested to see what happens in the state that I’m now spending a lot of my time (because of our recent acquisition, of course).

So, what do you think?  Will we see more states require technology CLE?  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.

A Fresh Comparison of TAR and Keyword Search: eDiscovery Best Practices

Bill Dimm of Hot Neuron (the company that provides the product Clustify that provides document clustering and predictive coding technologies, among others) is one of the smartest men I know about technology assisted review (TAR).  So, I’m always interested to hear what he has to say about TAR, how it can be used and how effective it is when compared to other methods (such as keyword searching).  His latest blog post on the Clustify site talk about an interesting exercise that did exactly that: compared TAR to keyword search in a real classroom scenario.

In TAR vs. Keyword Search Challenge on the Clustify blog, Bill challenged the audience during the NorCal eDiscovery & IG Retreat to create keyword searches that would work better than technology-assisted review (predictive coding) for two topics.  Half of the room was tasked with finding articles about biology (science-oriented articles, excluding medical treatment) and the other half searched for articles about current law (excluding proposed laws or politics).  Bill then ran one of the searches against TAR in Clustify live during the presentation (the others he couldn’t do during the session due to time constraints, but did afterward and covered those on his blog, providing the specific searches to which he compared TAR).

To evaluate the results, Bill measured the recall from the top 3,000 and top 6,000 hits on the search query (3% and 6% of the population respectively) and also included the recall achieved by looking at all docs that matched the search query, just to see what recall the search queries could achieve if you didn’t worry about pulling in a ton of non-relevant docs.  For the TAR results he used TAR 3.0 (which is like Continuous Active Learning, but applied to cluster centers only) trained with (a whopping) two seed documents (one relevant from a keyword search and one random non-relevant document) followed by 20 iterations of 10 top-scoring cluster centers, for a total of 202 training documents.  To compare to the top 3,000 search query matches, the 202 training documents plus 2,798 top-scoring documents were used for TAR, so the total document review (including training) would be the same for TAR and the search query.

The result: TAR beat keyword search across the board for both tasks.  The top 3,000 documents returned by TAR achieved higher recall than the top 6,000 documents for any keyword search.  Based on this exercise, TAR achieved better results (higher recall) with half as much document review compared to any of the keyword searches.  The top 6,000 documents returned by TAR achieved higher recall than all of the documents matching any individual keyword search, even when the keyword search returned 27,000 documents.

Bill acknowledges that the audience had limited time to construct queries, they weren’t familiar with the data set, and they couldn’t do sampling to tune their queries, so the keyword searching wasn’t optimal.  Then again, for many of the attorneys I’ve worked with, that sounds pretty normal.  :o)

One reader commented about email headers and footers cluttering up results and Bill pointed out that “Clustify has the ability to ignore email header data (even if embedded in the middle of the email due to replies) and footers” – which I’ve seen and is actually pretty cool.  Irrespective of the specifics of the technology, Bill’s example is a terrific fresh example of how TAR can outperform keyword search – as Bill notes in his response to the commenter “humans could probably do better if they could test their queries, but they would probably still lose”.  Very interesting.  You’ll want to check out the details of his test via the link here.

So, what do you think?  Do you think this is a valid comparison of TAR and keyword searching?  Why or why not?  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.

Former Football Players Sanctioned for Failure to Produce: eDiscovery Case Law

In Michael E. Davis, et al. v. Electronic Arts, Inc., No. 10-cv-03328-RS, (N.D. Cal., April 3, 2018), California Magistrate Judge Donna M. Ryu ruled that the plaintiff’s failure to fully comply with the discovery requests by the defendant were sanctionable under FRCP Rule 37, which states, “Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys’ fees, caused by its failure to comply with the order or rule.”

Case Background

Three former NFL players claimed that Electronic Arts (EA) used their likenesses in the Madden NFL videogame series without authorization. In July 2017, EA moved to compel plaintiffs to provide further responses to discovery, and the court ordered the parties to meet and confer regarding the disputes set forth in the letters and to file joint letters regarding any remaining disputes. After a hearing, the Court granted in part EA’s motions to compel further responses to requests for the production of documents (“RFPs”), interrogatories, and requests for admission (“RFA”), setting a deadline for response on September 28, 2017.

A day after the deadline, the plaintiffs responded by saying they had, “engaged in a reasonable and diligent search” but found no responsive documents to certain requests. The plaintiffs also said the requested privilege log was rendered unusable due to a computer error even though both the plaintiffs and the plaintiffs’ attorney had stated in an earlier hearing that they had regular communications via email regarding the case.

EA requested sanctions of $45,000 against the plaintiffs under Rule 37. However, the billing records EA provided to the court did not segregate the fees by task or category, which makes it difficult to evaluate the reasonableness of the time expended, or to calculate precise sums that should be allowed or disallowed. But even with the problems with EA’s billing records, it was clear that EA incurred substantial attorneys’ fees in attempting to obtain plaintiffs’ compliance and seeking court intervention.

Judge’s Ruling

Given the inconsistencies between counsel and plaintiffs’ statements about communications regarding this litigation, Judge Ryu expressed concern about the adequacy of the plaintiffs’ search for responsive documents and ordered them to “search thoroughly all . . . email, going all the way back, for communications between [Plaintiffs] and other people who are not lawyers about this case.”

Judge Ryu also ruled that the plaintiffs’ response to the defendant’s discovery request was deficient and found monetary sanctions appropriate in this case, in addition to the evidentiary sanctions, as their conduct forced EA and the court to continue to expend significant resources to address plaintiffs’ failure to meet its discovery obligations and provide basic discovery.

“A sanction of $25,000 is justified in these circumstances and acknowledges that this amount represents a significant discount from the actual attorneys’ fees incurred by EA as a result of plaintiffs’ counsel’s actions. The court finds that $25,000, coupled with the evidentiary consequences set forth above, are an appropriate sanction here.”

So, what do you think?  Was the ruling correct or were sanctions unwarranted in this case?  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.