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Electronic Discovery

Looking to the Future with CloudNine, Concordance and LAW PreDiscovery: eDiscovery Webcasts

CloudNine recently acquired the Concordance, LAW PreDiscovery and Early Data Analyzer platforms.  So, who is CloudNine, why did they acquire these products and what is their vision for them going forward?  If you’re an existing user of these products, now’s your chance to find out!

During the month of May, CloudNine will conduct the webcast Looking to the Future with CloudNine, Concordance and LAW PreDiscovery LIVE on three separate occasions.  In this one-hour webcast, we will provide an overview of CloudNine, the vision for our new robust suite of products and how they will extend and enhance your data and legal discovery efforts.  We’re conducting the webcast three different times to make the webcast presentation more interactive, giving existing customers of our products a chance to have their questions addressed, so you’ll want to register for one of these dates if you want to attend.  The webcast will include both a presentation and a demonstration of our CloudNine platform:

Presentation Highlights:

  • Who is CloudNine?
  • What We Do and How We Solve the Problems
  • Considerations for On-Premise, Off-Premise and Hybrid Approaches
  • What the Acquisition Means for Current On-Premise Customers
  • Looking to the Future with CloudNine Off-Premise and On-Premise Products

Demonstration Highlights:

  • CloudNine Automated Legal Hold
  • CloudNine eDiscovery Platform (Upload/Process/Review/Produce)
  • CloudNine Automated Data Preservation and Collection

The three dates for the webcast are:

  • Wednesday, May 2, 2018 (click to register here)
  • Tuesday, May 8, 2018 (click to register here)
  • Thursday, May 17, 2018 (click to register here)

All times are noon CST (1:00pm EST, 10:00am PST).

So, what do you think?  Do you use Concordance, LAW or EDA?  Then, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Compels Discovery in Response to Party That Was Using Outdated Rule 26 Standard: eDiscovery Case Law

In Cen Com, Inc. v. Numerex Corp., No. C17-0560 RSM, (W.D. Wash., April 11, 2018), Washington Chief District Judge Ricardo S. Martinez ruled that the Plaintiff’s refusal to comply with the Defendant’s request for discovery using specific search terms was not justified, and that the Plaintiff must “fully comply with the subpoenas that Defendants served upon them and shall produce all responsive documents in a format that is accessible/readable by Defendants.”

Case Background

A request for discovery was issued by the Defendant for the founder and owner of the Plaintiff, along with two current employees of the Plaintiff, all of whom were former employees of the Defendant. The plaintiffs objected to the subpoenas “on the basis that it was an improper attempt to obtain discovery from a party employee,” and “that the subpoena is overbroad, unduly burdensome, and that the costs outweigh the potential for acquiring relevant information.”

The Defendant also filed a motion to compel the Plaintiff to use specific electronic search terms (“attorney w/2 general” and “consent w/2 decree”) related to a 2012 consent decree that Plaintiff entered into with Washington State’s Attorney General. The Plaintiff objected to the search terms regarding the consent decree as irrelevant.

As part of a counterclaim, the Plaintiff requested sanctions against the Defendant, claiming they withheld certain documents because of a pending motion for protective order, which was later denied by the Court. However, the Plaintiff continued to seek sanctions for the time period that it alleges Defendants were not in compliance with the stipulated ESI Order.

Judge’s Ruling

In Judge Martinez’s ruling, all of the Defendants’ motions were granted. Regarding the scope and relevance of the discovery request, it was noted that the Plaintiff was basing their refusal to comply on the former FRCP Rule 26 standard and not in line with the current version of Rule 26, which states discovery must be relevant to the claim and proportional to the needs of the case, while taking into account the parties’ access to relevant information and available resources, the importance of the discovery in resolving the matter, and whether the burden or expense of discovery outweighs its likely benefit.

Additionally, under Rule 37, “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Here the Plaintiff failed to explain specifically why the documents are not relevant, or that a search of the documents would be unduly burdensome, and instead only made the blanket statement that the documents sought “do not concern this matter and could not lead to relevant information.”

In regard to the Plaintiff’s counterclaim, Judge Martinez denied the motion for sanctions, citing Rule 37(d)(2): “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”

So, what do you think?  Was the ruling correct or were the Defendant’s requests “overly burdensome”?  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.

Don’t Miss Our Webcast Today on Technology Assisted Review!: eDiscovery Webcasts

What is Technology Assisted Review (TAR)? Why don’t more lawyers use it? Find out in our webcast today!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Getting Off the Sidelines and into the Game using Technology Assisted Review. In this one-hour webcast that’s CLE-approved in selected states, will discuss what TAR really is, when it may be appropriate to consider for your case, what challenges can impact the use of TAR and how to get started. Topics include:

  • Understanding the Goals for Retrieving Responsive ESI
  • Defining the Terminology of TAR
  • Different Forms of TAR and How They Are Used
  • Acceptance of Predictive Coding by the Courts
  • How Big Does Your Case Need to Be to use Predictive Coding?
  • Considerations for Using Predictive Coding
  • Challenges to an Effective Predictive Coding Process
  • Confirming a Successful Result with Predictive Coding
  • How to Get Started with Your First Case using Predictive Coding
  • Resources for More Information

Once again, I’ll be presenting the webcast, along with Tom O’Connor, who recently wrote an article about TAR that we covered on this blog.  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 about TAR, what it is and how to get started, this is the webcast for you!

So, what do you think?  Do you use TAR to assist in review in your cases?  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 Business Confidence Takes a Major Spring Forward: eDiscovery Trends

Get it?  The Complex Discovery eDiscovery Business Confidence Survey is into its third year and the results are in for the Spring 2018 eDiscovery Business Confidence Survey!  As was the case for the 2016 Winter, Spring, Summer and Fall surveys, the 2017 Winter, Spring, Summer and Fall surveys and the 2018 Winter survey, the results for the Spring survey are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

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

The Spring 2018 Survey response period was initiated in March, and continued until registration of exactly 100 responses by last week.  Rob notes that this limiting of responders to 100 (or so) individuals is designed to create linearity in the number of responses for each quarterly survey.  So, in the future, if you want your voice heard, respond early!

This Survey is Consultant Heavy: For the first time ever, those who identified themselves as Consultants lead the way.  Of the types of respondents, 33% were Consultants, followed by Software and/or Services Provider (30%) and Law Firm (29%).  As always, if you count law firms as providers (they’re technically both providers and consumers), this is a very provider heavy survey (which makes perfect sense as they would be most interested in eDiscovery business confidence).  Here’s a graphical representation of the trend over the ten surveys to date:

This is the most provider heavy survey yet at 92% of total respondents!  So, how confident are providers in eDiscovery business confidence?  See below.

More Than Two Thirds of Respondents Consider Business to Be Good: Yowza!  Over two third (68%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 7% rating business conditions as bad.  That’s a record percentage of “good” votes.  Last quarter, those numbers were 58% and 7% respectively.  Will the positive sentiment continue?  We’ll see.  Here is the trend over the ten surveys to date:

This survey shows the highest percentage of “business is good” respondents ever by 6.2%! Spring 2016 was the previous high.  But, do respondents expect that to continue?  See below.

Revenue and Profit Expectations Six Months From Now Are Strong: Almost all respondents (94%) expect business conditions will be in their segment to be the same or better six months from now (one tick lower than last quarter’s 95%), and the percentage expecting business to be better fell six points to 50%.  Revenue (at combined 96% for the same or better) is three points higher than the last quarter.  Profit expectations (combined 86%) also rose three points from last quarter, with those expecting higher profits at an all-time high of 53%!  Here is the profits trend over the ten surveys to date:

Perhaps the weirdest results this time as both revenue and profits scored higher than general business conditions did.  Go figure.

It’s Budgetary Constraints’ Turn to Be Most Impactful to eDiscovery Business: Budgetary Constraints was the top impactful factor to the business of eDiscovery over the next six months at 22%, with Increasing Volumes of Data next up at 21%.  Data Security was close behind in third at 19% and Increasing Types of Data (16%) was fourth.  Inadequate Technology and Lack of Personnel brought up the rear at 11% each.  The graph below illustrates the distribution over the ten surveys to date:

Once again, Budgetary Constraints and Increasing Volumes of Data are the top two, but for the first time, all six factors were over 10%.  That’s a fairly even distribution.

Even Distribution Between Management and “Rank and File”: For the first time since Summer 2016, the Executive Leadership respondents (35%), Operational Management (34%) and Tactical Execution respondents (31%) were virtually even.  So, this survey reflects even input from execs, managers and “doers”.  Here’s the breakdown over the ten surveys to date:

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

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

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Judge Recommends Jury Decision on Impact of Spoliation of Emails: eDiscovery Case Law

In BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc., No. 15 C 10340 (N.D. Ill. April 4, 2018), Illinois Magistrate Judge Jeffrey Cole recommended that the court follow the decision in Cahill v. Dart and “allow the appropriate evidence to be presented to the jury” to enable it to determine the “impact, if any, the non-production of the challenged emails has on the merits of the parties’ claims”.  If the court was not inclined to let the matter go to the jury, Judge Cole recommended that the court give a permissive spoliation instruction to the jury informing them of the destruction of the requested emails and that they could consider the deletion of the emails to be evidence in considering claims and counter-claims of the parties.

Case Background

In this case regarding breach of a marketing collaboration agreement between the parties and a counter-claim against the owner of the plaintiff, alleging the marketing agreement was negotiated in bad faith, the defendant raised concerns that the plaintiff had produced no emails from Fall 2010 through November 2011 (the period in which the parties were negotiating their Agreement).  The plaintiff indicated that it changed servers in November 2011 and no longer had possession of any emails prior to then.  In response to the suggestion that the loss of the pre-November 2011 emails might have been deliberate, the plaintiff claimed that the server change was “years before any party could have foreseen litigation”.  Though the parties agreed to a declaration by an employee of the plaintiff regarding this, the plaintiff never provided one.

In May 2017, the defendant served a notice for the deposition of a corporate representative of the plaintiff to cover a number of topics related to the missing emails, but the parties continued to dispute the production of a plaintiff witness before finally agreeing to depose an employee of the bank owner company of the plaintiff.  He testified that the new email archive system was not fully installed at the plaintiff’s organization until July 2012, that five years of emails were kept at the time and that emails were kept until automatically deleted once they aged five years.  This meant that emails going back to November 2010 were in existence and obtainable as of November 2015 when the Complaint was filed, not purged when the plaintiff changed servers.

In addition, the President and CEO of the plaintiff admitted he maintained a separate electronic or computerized “folder” for emails regarding the agreement, this folder would have contained all the communications related to it as of July 2012 when the migration to the new archive was complete and he knew of no reason why he would have deleted them.  Acknowledging that he was “personally responsible for putting in place a litigation hold”, he also admitted that neither he nor anyone else at the plaintiff or its owner company ordered the suspension of the automatic deletion of archived emails until at least October of 2016, nearly a year after the defendant filed suit, noting that he didn’t think there were any bad emails, so their deletion wasn’t problematic.  The chain of events led to the defendant filing a Motion for Spoliation Sanctions seeking the entry of a default judgment or, alternatively, an adverse inference sanction against the plaintiff.

Judge’s Ruling

In providing his recommendation, Judge Cole stated that the plaintiff CEO testimony “is simply not credible”.  Continuing, he said, “No reasonable, successful businessman would be so naive as to think that prior, positive exchanges of emails with one’s present accuser had no capacity to help prove that Capital’s charges were baseless and pretextual.”

Summing up his observations, Judge Cole stated that “there can be no serious doubt that the now unavailable emails ought to have been preserved, and that BankDirect, despite its admitted knowledge that documents were not to be destroyed, intentionally chose not to take reasonable (and quite easy) steps to preserve them.”  As a result, Judge Cole offered the following recommendation:

“Accordingly, it is recommended that the court follow Cahill and, as a matter of its inherent discretion, allow the appropriate evidence to be presented to the jury, which, under proper instructions, will determine the reasons for the non-production and the impact, if any, the non-production of the challenged emails has on the merits of the parties’ claims. Alternatively, if the court is not inclined to let the matter go to the jury, it is recommended that the court give a permissive spoliation instruction to the jury informing them of the destruction of the requested emails and that they could consider the deletion “of the emails to be evidence (not conclusive of course)” in considering BankDirect’s claim and Capital’s counterclaim.”

So, what do you think?  Should the judge have recommended a default judgment sanction 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.

Here’s the Latest Buyers Guide for Everything “eDisclosure”: eDiscovery Trends

How many suppliers of eDiscovery (“eDisclosure”) software and services are there?  At least 98.  How do I know that?  I know that because that’s how many suppliers Andrew Haslam lists in the eDisclosure Systems Buyers Guide – 2018 Edition.

Authored once again by litigation support and “eDisclosure” (that’s what they call eDiscovery across the pond) expert Andrew Haslam, the sixth edition of the eDisclosure Systems Buyers Guide provides an overview of key technology considerations, industry approaches and vendor capabilities regarding eDisclosure.  Covering topics from the EDRM Model to vendor service and software analysis, the guide provides a complete and credible resource for legal and IT professionals seeking to understand and apply eDisclosure concepts, processes, techniques, and tools.

The target audience for the Guide are those individuals who understand they have a requirement, but don’t know how to proceed with the next steps. It is assumed that people within organizations that have a litigation support function, will turn to them in the first instance for advice, but might use this document as a primer on what’s available.

The Guide is based on Andrew Haslam’s general experience in the marketplace, also drawing from a number of vendor procurement exercises. The information on firms and software tools has been provided by the organizations themselves, with moderation from the author.  Throughout the guide, Andrew sprinkles boxes that are notes, best practice recommendations and warnings (which are designated by a bomb with a lit fuse icon) to help provide guidance to readers for best practices.

While the Guide is a very large 435 page PDF guide, it’s still easy to navigate, with a detailed (and linked) table of contents that provides an Executive Summary, Guide Structure, a breakdown of each of the EDRM phases, a section on cooperation in England and Wales, technology areas, a market survey, a proposed procurement approach in selecting vendors, additional resources and that comprehensive list of service “suppliers” and software providers (98 suppliers, 73 software providers) which comprises the majority of the guide.  If you provide both services and software, you’re listed in both sections.  So, for example, CloudNine (shameless plug warning!) is listed on both page 96 of the document in the suppliers section and page 250 of the document in the software section.

When it comes to coverage of the providers, the Guide is more than just a cursory listing, it’s a detailed listing that includes a detailed description of their services, providing the buyer with a terrific head start in understanding what each company does and whether their services and/or software might meet their needs.

Andrew is currently employed as the UK eDisclosure Project Manager for Squire Patton Boggs, so, once again, he makes sure to note that all opinions within the Guide are Andrew’s personal viewpoints and they do not represent any views, opinions or strategies of Squire Patton Boggs.  You can get access a copy via Legal IT Insider here.

So, what do you think?  Are you in the market for an eDiscovery (eDisclosure) provider or solution?  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.