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Electronic Discovery

Houstonians, Here’s a Terrific Panel Discussion on TAR Right in Your Own Backyard: eDiscovery Best Practices

Next month, I have the privilege of moderating a panel on the current state of the acceptance of technology assisted review (TAR) with three terrific panelists, courtesy of the Association of Certified E-Discovery Specialists (ACEDS).  If you’re in Houston on April 3rd, you might want to check it out!

The panel is titled From Asking About It to Asking For It: The Evolution of the Acceptance and Use of TAR and it will be held at the offices of BoyarMiller law firm at 2925 Richmond Avenue, Houston, Texas  77098 (their offices are on the 14th floor).  The event will begin at 11:30am and will conclude at 1:30pm.  Lunch will be served!

Our panelists will be Christopher Cafiero, J.D., Southwest Territory Manager of Catalyst Repository Systems (and former trial lawyer), Gary Wiener, Independent eDiscovery Consultant, SME and Attorney and Rohit Kelkar, Vice President of R&D at Servient.  We will discuss several topics related to the current state of TAR, including the state of approval of TAR within the legal community, differences in approaches and preferred methods to TAR, disclosure of the use of TAR to opposing parties, and recommendations for those using TAR for the first time.

If you’re in Houston and you’d like to attend, register by clicking here.  Honestly, I don’t know how many people will be able to attend, so I recommend that you register early (but not often) to make sure you can get in.  If you want to learn about TAR in the Houston area, this is an excellent opportunity!

So, what do you think?  Are you interested in learning about TAR and are you going to be in the Houston area on April 3rd?  If so, we’d love to see you there!  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.

According to the IGI, Information Governance Continues To Gain Traction: Information Governance Trends

Last week, the Information Governance Initiative (IGI) released Volume III of their State of Information Governance Report – the third (annual) edition of the Report, which is based on “extensive” surveying of Information Governance (IG) practitioners and providers.  So, is Information Governance gaining traction in organizations? (Well, duh, I gave the answer away in the title of this post, didn’t I?)  :o)

I couldn’t find a total number of respondents mentioned in the report, but it does note that the survey “reached an estimated audience of approximately 100,000 practitioners through our network and those of our partners and Supporters” and that “the majority of respondents came from our own community of IG practitioners.”  For what it’s worth.

Regardless, the report contains several findings, including these highlights:

  • Only 2 percent of respondents have never undertaken an IG project. When compared to last year, the number of respondents reporting they have never undertaken an Information Governance project fell by a dramatic 90 percent.
  • There was a 41 percent rise in the number of professionals who say the IG market is clearly identified, with just over a third of respondents (7 percent) agreeing or strongly agreeing that the IG market is clearly defined.
  • There was also a 26 percent rise in the number of organizations with an IG Steering Committee (to 46 percent) and a 41 percent rise in the number of IG leaders with “Information Governance” in their title (to 52 percent).
  • More organizations are also realizing more business value from their data with those extracting value from data rising from 16 percent last year to 46 percent this year.
  • Integration between IG and cybersecurity programs is accelerating, with 48 percent of respondents agreeing that IG is essential to strong cybersecurity.
  • This year, only 4 percent of respondents reported having no active IG projects – a 64 percent drop from last year. However, according to the respondents, the main barrier to IG progress remains a lack of organizational awareness, so there’s still work to be done.

The report cites a couple of factors as driving greater emphasis on information governance: the Equifax breach, which affected 143 million American citizens and new legal and regulatory developments, like the EU’s General Data Protection Regulation (GDPR).  Regarding GDPR in particular, the report states:

“GDPR asks organizations to zero in on the reasons they store data in the first place. Without consent and justifiable reasons for storing the data, organizations are required to delete it. It is a refocus from an attitude of ‘If in doubt, keep’ to one of ‘If in doubt, delete’. Facing a drive for better governance and defensible deletion across at least a subset of their data, organizations are now beginning to more loudly ask those questions that high-profile data disasters raise: Why does this information exist? Why are we holding on to it? What value does it have, and what kind of risk does it represent?”

Needless to say, GDPR will be a major driver in adoption of information governance.

The report is contained within a 63 page PDF, full of detailed information regarding the state of information governance today, but it also includes a two page state of the industry report “quick read” with some of the key findings on pages 3 and 4 (if you want to hit the highlights quickly).  To download a copy of the report, click here (requires an IGI profile to be set up, which is free).

So, what do you think?  Are you surprised by any of these results?  Does your organization have any active IG projects?  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 a Conference that Can Be a SOLID Boost to Your Career: eDiscovery Best Practices

Actually, it’s not a “conference” so much as it’s a “summit” – the Summit On Legal Innovation and Disruption (SOLID).  SOLID is an interactive exchange of ideas by doers, innovators and disruptors in the business of law. Speakers and participants will inform, instruct and inspire one another to design and apply solutions that will elevate and accelerate their careers from ‘now’ to ‘next’.  The SOLID West 2018 summit is coming up this month in San Francisco on Thursday, March 15, 2018 (here’s a link to the agenda for the SOLID West summit).

Last week, I spoke with David Cowen, President and Managing Director of The Cowen Group, (which, as many of you know, is a staffing and recruiting firm focused on eDiscovery, Litigation Support, Privacy, Security and Information Governance professionals) and organizer of the SOLID summit program and asked him how SOLID summits are different from other conferences:

“It’s a summit series effecting change at the individual professional level as opposed to the industrial level.  In these summits, individuals can come together and experience a series of TED talks, then connect with peers and colleagues through a series of table talks and then a town hall”, David said.  “These aren’t discussions about what people are thinking and predicting will happen, they are discussions about what people are doing within their organizations today.  There’s no pontification, there’s no “what if”.  It’s all experiential knowledge being shared – what they’re doing, how they’re doing it, why they did it this way and lessons learned.  Focused on the business use case of the technology and what it can do to move your career forward and your business forward.  And, that’s a real differentiator from conferences where people are talking about the next big idea.”

“This ‘TED talk, table talk, town hall’ approach, which is facilitated by the experienced 55 faculty members, helps create a hub of conversation around evolving trends and use cases in the business of law today.  By the ‘business of law’, I mean that critical intersection between next gen legal technology (which includes AI and machine learning, among other technologies) and the impact that’s having on the business of law and the careers of professionals that are trying to innovate and get from ‘now’ to ‘next’.  At the end of each summit, each participant at SOLID gets a 90 day action plan to fill out to identify what each of them will do in the next 90 days to take action on what they just learned, followed up by six working groups conducting ten virtual calls over a six month period (and completing two work product deliverables) to keep enforcing ‘stickiness’ and ‘accountability’.  If you want to go to a ‘mini MBA program’, this is the place to be.”

David also indicated that, in addition to the two SOLID summits each year in San Francisco and New York (and perhaps eventually regional summits as well), they’re also planning to roll out a breakfast workshop series on how to get from ‘now’ to ‘next’ in your career.  As David told me, “It will be a two hour ‘boot camp’ that we’ll conduct in ten cities in the spring, summer and fall of 2018 focused on what it takes to be successful in the business of law.  The idea is that if you don’t take an interest in your own career development and advancement, you’re going to be gone.  And, we want to help people get from ‘gone’ to ‘good’ to ‘golden’.

Golden, indeed!  The SOLID summit series began with the first summit last fall in New York and will return to New York for SOLID East 2018 on September 13 and 14.  To register for the SOLID West 2018 summit (there’s still time!), click here.  This summit is SOLID as a rock!

CloudNine is excited to be a sponsor and participant in the SOLID summit series and my colleague, Julia Romero Peter, will be at the SOLID West summit later this month.

So, what do you think?  Is your career ‘golden’?  Or are you concerned that if you’re not careful, you could be ‘gone’?  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.

NY Appellate Court Reverses Ruling on Discovery of “Private” Facebook Posts: eDiscovery Case Law

In Forman v. Henkin, No. 1. (N.Y. Feb. 13, 2018), the Court of Appeals of New York reinstated a trial judge’s ruling requiring the plaintiff who was disabled in a horse riding accident to turn over “private” photos to the defendant taken before and after her injuries.

But first, this week’s eDiscovery Tech Tip of the Week is about Fuzzy Searching.  When performing keyword searching, you may know what terms you’re searching for, but it’s easy to miss important search hits if the term is misspelled or has OCR inaccuracies.  So, if you’re looking for the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleum” – misspellings or OCR errors that could be relevant.  Fuzzy searching is a way to catch many of those variations, expanding the potential recall of your search.  The ability that fuzzy searching provides to find words that are one or two characters off from the correct spelling of the term could enable you to locate important ESI to your case that would otherwise be missed, simply because the term is not spelled correctly.

To see an example of how Fuzzy Searching is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Case Background

In this case regarding allegations that the plaintiff was injured when she fell from a horse owned by defendant and maintained that, since the accident, she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages.  In particular, she contended that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.  The defendant sought an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action under CPLR 3101(a).  When the plaintiff failed to provide the authorization, the defendant moved to compel, asserting that the Facebook material sought was relevant to the scope of plaintiff’s injuries and her credibility.  The plaintiff opposed the motion arguing that the defendant failed to establish a basis for access to the “private” portion of her Facebook account because, among other things, the “public” portion contained only a single photograph that did not contradict the plaintiff’s claims or deposition testimony.

In February 2014, the trial court ordered the plaintiff to give the defendant pre-accident photos she intended to use at trial, post-accident photos not depicting nudity or romantic encounters, and access to post-accident records of her messages.  However, in December 2015, the appeals court limited the disclosure to photos intended for trial, saying the defendant could not go on a “fishing expedition” for evidence.  Two Justices dissented, concluding the defendant was entitled to broader access to the plaintiff’s Facebook account and calling for reconsideration of that court’s recent precedent addressing disclosure of social media information as unduly restrictive and inconsistent with New York’s policy of open discovery. The Appellate Division granted the defendant leave to appeal to this Court, asking whether its order was properly made.

Appellate Court’s Ruling

In considering that appeal, the Court observed that “a threshold rule requiring [the party seeking disclosure] to ‘identify relevant information in [the] Facebook account’ effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is ‘material and necessary to the prosecution or defense of an action’”.  So, while the Court stated that “we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials”, it also stated that “we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable”.

Nonetheless, the Court acknowledged that “even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege…But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived”.  With that in mind, the Court stated:

“Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”  So, the Court reversed the Appellate Division order and reinstated the lower court order.

So, what do you think?  Should “private” Facebook posts be discoverable?  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.

Tending Your Garden: Why Information Governance Should be an Ongoing Process in Your Organization: eDiscovery Best Practices

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of a strong information governance program and how creation of a data map can be a key component to that IG program.  Complying with the management requirements of personal data in Europe’s impending General Data Protection Regulation (GDPR) will make information governance even more of a priority than ever as Tom O’Connor and I discussed in last week’s webcast.

Just south of San Francisco lies the Filoli mansion, built in 1916 for the Bourn family, and then sold to the Roth family in the 1930s. During that time, the formal gardens gained worldwide renown, and in 1975, the family donated the house and gardens to the National Trust for Historic Preservation.

This month, I was visiting a friend who is the head of horticulture there and was asking about the seasonal planning of the garden and if they use landscape maps, or if it’s up to the garden managers to decide what to plant and maintain. The answer, as most answers tend to be, involved a little of both. But he told me that they no longer had access to a lot of the maps, because they had recently upgraded their computers, and the new machines couldn’t read the old files.

“Did you switch from Mac to PC?” I asked.

“No, we just went with the latest Macs, but they can’t read the old Apple files.”

As computing has shifted more to mobile-based platforms, the issue of legacy document accessibility comes along with that shift. Certainly, it’s nothing new, as system updates with both hardware and software have become increasingly frequent over the last 20 years. But often there was a built-in reverse compatibility – the newest machines could read older software versions but not the other way around.

To add even more complexity, Apple has so far made the decision to keep its mobile iOS platform separate from its desktop/laptop OS. In an article in Time, written in December 2016 by Tim Bajarin, he states, “Keeping two separate operating systems makes sense for Apple, enabling the company to offer a more basic and approachable OS for mobile users, with more powerful software for pro buyers.” But he continues with his belief that “both everyday consumers and business users will embrace so-called “2-in-1” computers, which can function as both a tablet and a laptop-with-keyboard.”

When I asked my friend what Filoli was planning to do about the old maps, he simply smiled and said, “we’re not exactly sure yet.” Mainly, they’d just started creating new maps using the new programs, which at a small organization like his, will probably work just fine.

But it raises some interesting considerations when thinking about information governance and eDiscovery policy in a larger corporate setting.

First, in the same way that the Filoli gardeners used maps to understand the property’s landscape, organizations should create data maps in order to learn the same about their data landscape. What types of data are being stored, where is it stored, when was it created, and in the case of hardware and software updates, will there be compatibility issues.

Second, once a data map is created, policies should be created surrounding retention and storage. If you have older files that can’t be opened, one should question whether it’s even necessary to keep it around. Because storage is moving to the cloud and is becoming more and more affordable, many find it easier to simply just keep everything. But this can lead to issues down the road should litigation arise.

Finally, hardware and system updates are a great time to bring your organization’s data management program up to speed. Before moving old files over into a new system (such as Office 365), it could be beneficial, especially in the long term, to clean house before moving. However, this can be easy to put off, it takes extra time and effort, and if you’re in the middle of a move, being proactive about defensible deletion isn’t often top of mind. It’s the same reason why after you move into a new house and start unpacking boxes, you’re often left shaking your head and thinking, why did I bring this?

Even if you’re not planning to upgrade hardware or software platforms anytime soon, it is inevitable that your organization will do so. And in this day and age, the space between upgrades continues to grow narrower all the time. It may be a good idea to use the “off time” to begin the process of creating a data map, as well as information governance policies and contingencies, so that when the day comes for that upgrade, you won’t have to recreate some things from scratch, while still feeling compelled to carry around the outdated and inaccessible files.

So, what do you think?  Does your organization have a data map that is periodically updated?  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.

93 Percent of Legal Professionals Surveyed by Consilio Think AI Will Be Helpful to Legal: eDiscovery Trends

The things I do to get a blog post out. When you travel to Dallas for the Masters Conference (which is today) and forget your laptop charger, then make a trip to Best Buy to get a replacement — only to get back to the hotel and find out that the one you bought doesn’t fit your laptop (even though it listed the laptop manufacturer on the package) you wind up typing your blog post on the hotel computer in the Business Center. So, my apologies if it is a bit off.

While the ultimate impact of artificial intelligence (AI) on the business of law remains to be seen, legal professionals are largely positive about how it will affect the industry and their day-to-day jobs, according to a survey conducted by Consilio. The survey of 105 legal professionals from in-house law departments, law firms and government affiliated entities, was conducted by Consilio at the Legalweek conference held from January 30 – February 1, 2018. In the survey, the majority of legal professionals (53 percent) indicated that they believe AI will create more opportunity within the legal industry with another 40 percent saying it will help the industry.

As those of us who follow eDiscovery know, AI has already improved tasks like technology-assisted review (TAR), but respondents believe that AI will soon begin impacting the industry in other ways. Outside of eDiscovery, legal professionals believe contract drafting and management will be the most heavily impacted legal task affected by AI (37 percent) followed by litigation analysis (32 percent), risk assessment (15 percent) and computational models predicting legal outcomes (15 percent).

Here are some other notable findings from the survey:

  • 62 percent of legal professionals surveyed say AI is impacting their day-to-day jobs right now;
  • 95 percent of respondents expect AI to impact their day-to-day jobs in the next five years;
  • 33 percent of legal professionals surveyed believe that AI will not negatively affect the industry at all;
  • 29 percent think that loss of jobs will be the biggest negative impact of AI on the industry, while 28 percent believe it will create less opportunity for junior associates.

“Artificial intelligence is slowly integrating itself into every aspect of our lives and the legal industry is no exception,” said Amy Hinzmann, Managing Director at Consilio. “The results of this survey confirm the legal industry is preparing for and excited about how AI will impact their jobs. Improved processes, like those already seen in eDiscovery, will help speed up once tedious processes and give legal professionals time to focus more on the strategic aspects of their roles.”

AI was one of the hottest topics at Legaltech this year, along with GDPR.  So, these results are probably not that surprising to many.

So, what do you think?  Are you surprised by these survey results?  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.

Germany Finds that Facebook’s Privacy Settings and Terms of Service Violate Their Privacy Rules: Data Privacy Trends

One of the things that Tom O’Connor and I discussed in last week’s webcast about the upcoming Europe General Data Protection Regulation (GDPR) was how consent will be interpreted for use of data for its data subjects.  Last month, a German court may have given an early indication of how consent will be enforced.

In Legaltech News (Facebook Foreshadowing: German Court Underscores Tech’s Uncertain GDPR Future, written by Rhys Dipshan, free subscription required), the author notes that after a three-year battle, a regional court in Berlin has found that Facebook’s default privacy settings, terms of service, and requirement that users register under their own name violate Germany’s data privacy and consent rules.

The January 2018 ruling (available here, in German, of course) based on German law on a case brought by The Federation of German Consumer Organisations (VZBV) could nonetheless illustrate trouble for international technology companies under the GDPR, once it takes effect on May 25th of this year.

Germany’s data privacy laws are currently based on the EU Directive 95/46/EC, the data privacy directive passed by the European Union in 1995 which has provisions that mirror those in the GDPR, especially around the issue of consent.  EU Directive 95/46/EC will be replaced by GDPR on May 25th.

Last November, the EU Article 29 Data Protection Working Party (WP29) issued Guidelines on Consent under Regulation 2016/679 to clarify how the EU would move to define and regulate consent and that guidance aligns closely with how the German court interpreted consent in the case against Facebook. For example, the court ruled that the pre-activated privacy settings on Facebook’s mobile application, such as allowing geotagging and for search engines to index a user’s Facebook profile, are a violation of user consent.

The court also found that eight clauses in Facebook’s terms of service assumed and framed consent too broadly and declared that asking users to register under their own names “was a covert way of getting people’s consent to use their real names,” said Nick Wallace, a senior policy analyst at the Center for Data Innovation.

The WP29’s guidance affirms both points and it also notes, “If consent is bundled up as a non-negotiable part of terms and conditions, it is presumed not to have been freely given.”  WP29 also states, “The use of pre-ticked opt-in boxes is invalid under the GDPR. Silence or inactivity on the part of the data subject, as well as merely proceeding with a service cannot be regarded as an active indication of choice.”

Debbie Reynolds, director of EimerStahl Discovery Solutions, an affiliate of law firm Eimer Stahl, stated that “Facebook and a lot of tech companies sell marketing,” and having their users register under their real names “makes the information they collect more valuable. So I think this is going to in some way change the foundation of how they are operating today.”

As you can imagine, the requirements of specific consent could change things for a lot of companies that currently collect data from individuals, including EU data subjects – perhaps significantly.  We will see.

Speaking of data privacy, today is the day that the Supreme Court will hear oral argument in United States v. Microsoft Corp (which we’ve referred to as the “Microsoft Ireland” case).  Needless to say, the ruling in this case will have major impact on how organizations treat data privacy as well.  We will certainly cover the ruling when it’s issued.

So, what do you think?  Is your organization changing how it obtains consent from individuals for handling their data?  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 Rules on Scope of Plaintiff Discovery Requests: eDiscovery Case Law

In Performance Pulsation Control, Inc. v. Sigma Drilling Techs., LLC, et al., No. 4:17-CV-00450 (E.D. Tex. Fe. 13, 2018), Texas District Judge Amos L. Mazzant granted the plaintiff’s motion to compel in part, ordering the defendants to produce documents related to four specific categories, but within certain parameters.

Case Background

In this case regarding claims of misappropriation of trade secrets and confidential information by a former employee of the plaintiff who formed a competing company, the parties had discovery disputes and the plaintiff contended that the defendants failed to produce any of the materials they generally described in their Rule 26 disclosures or state when they intended to produce such materials.  In September 2017, the plaintiff sent more than 850 Requests for Production to the Defendants and, about a month later, the defendants objected and responded to their requests.  In response to a letter by the plaintiff detailing stated issues with the defendants’ production, the defendants produced additional documents, but the parties still needed a telephonic conference with the Court in December 2017 to discuss the discovery dispute and the Court recommended that the parties file briefing on the issue.  Six days later, the plaintiff filed its motion to compel.

In its motion, the plaintiff sought an order compelling the defendants to produce four general categories of documents and tangible items from time periods before, during, and after employment by the former employee, as follows:

“(1) Emails and documents sent to or received from any “PPC Contact” and similar documents sent to or received from relevant third parties.

(2) Emails and documents relating to PPC trade secrets, specific pulsation control products, and pulsation control generally.

(3) Emails and documents relating to Defendants’ scope of work with PPC, information owned by PPC, and emails to and from PPC.

(4) Emails and documents relating to Defendants’ competitive business.”

Judge’s Ruling

With regard to the first category, the parties had already further refined the scope of “PPC Contacts” and “relevant third parties” and the defendants had produced additional documents and were “conducting additional searches based on that information.”  With that in mind, Judge Mazzant stated: “The Court finds that to the extent Defendants have not already done so, they must produce documents sent to or received from any “PPC Contact” or “third party” as limited in the conference letter. However, the Court narrows such production to documents and communications dated during and after the time of Defendants’ employment.”

With regard to category #2, Judge Mazzant stated: “The Court finds production of such information and documents is warranted as limited in PPC’s conference letter, with the exception that such production is narrowed to documents and communications dated during or after Defendants’ employment with PPC.”  He also reminded the defendants that such trade secret related information could be produced subject to the Court’s protective order with an Attorney’s Eyes Only or Confidential designation.

With regard to category #3, Judge Mazzant stated: “The Court finds that to the extent that Defendants have not produced such information, they must do so. However, any production is limited to information dated or obtained during and after Defendants’ employment with PPC. Further, to the extent Defendants are concerned that any information is confidential or relates to any trade secrets, the Court reiterates Defendants’ ability to produce any information pursuant to the Court’s Protective Order and/or in a reasonably redacted format.”

In discussions with the defendant on category #4, the plaintiff, in its conference letter, described “competitive business activities” to include “formation documents, corporate governance documents, revenues and net profits earned, employees, agreements with third parties, contacts, types of work, etc.”  With that in mind, Judge Mazzant stated: “The Court finds to the extent Defendants have not already done so, they must produce all emails and documents related to Defendants’ formation documents, corporate governance documents, revenues and net profits earned, employees, agreements with third parties, contacts, and types of work. However, such production is limited to during and after Defendants’ employment with PPC.”

So, what do you think?  Did the court manage the discovery disputes effectively?  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.

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