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Electronic Discovery

Understanding eDiscovery in Criminal Cases, Part Two: 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, including our webinar last Thursday (Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018), which was great.  If you missed it, you can check out the replay here.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Now, Tom has written another terrific overview for Understanding eDiscovery in Criminal Cases that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  The first part was published Monday, here’s part two.

Overview of Rules for Criminal Matters

Because more than 90 percent of documents today are generated in electronic format, ESI is becoming more and more prominent in criminal matters, especially white collar criminal cases.  But many attorneys who take on a criminal representation for the first time are surprised to find that there are a different set of rules than those that they are used to working within civil matters.

Although the rules and case law on eDiscovery in the civil arena have been developing at a rapid pace, the same has not happened in criminal law. The Federal Rules of Civil Procedure are just that, the rules for civil matters, while the procedural rules for criminal matters are set forth in the Federal Rules of Criminal Procedure (FRCrimP) as well as the states’ versions of criminal procedure codes.

Because so much of the work in criminal matters involves Fourth and Fifth Amendment constitutional arguments and state constitutional concerns, the rules tend to focus on that area.  The Fourth Amendment, of course, has a general prohibition against searches and seizures without a warrant, but law enforcement may have the right to search an area within the suspect’s immediate control when they arrest someone.

This exception is generally allowed for protection of law enforcement officers and may not give them the right to seize a computer unless it poses a threat. Officers may also search an immediate area if they have reason to believe another suspect is hiding and of course no warrant is needed for contraband in plain sight, neither of which are likely to apply to ESI.

Several problem areas are searches of cars and cell phones.  Upon a traffic stop, police can view the open areas of the car, and if they see something in plain view that gives them probable cause, they can do a full search. This may not extend to a locked glove box or the trunk although some state courts, especially appellate courts, tend to evaluate cases based on a “totality of circumstances” and results may differ.  If an arrest occurs, a full search of the vehicle is allowed.

But what if a laptop or cell phone is found pursuant to a legal search? If the police have probable cause to believe there is evidence of a crime on a computer, they may search it otherwise they will need a warrant.  Cell phones, however, have been given even great protection, a fact of great importance given that surveys show that more than 90 percent of Americans now own or regularly use a cellphone.

In Riley v. California, 134 S.Ct. 2473 (2014), the US Supreme Court, unanimously ruled that police may not search the cell phones of criminal suspects upon arrest without a warrant. The opinion held that smartphones and other electronic devices were not in the same category as wallets, briefcases, and vehicles which are subject to limited initial examination.

Indeed, said Chief Justice Roberts in his opinion, cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”  And, he added, cellphones “are based on technology nearly inconceivable just a few decades ago” when the Court had upheld the search of the arrestee’s pack of cigarettes.

Rather, citizens today have a reasonable expectation of privacy for information on their cell phones and, he said, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Also, police have generally not been allowed to force an individual to hand over passwords or encryption keys given that the Fifth Amendment protects individuals against compelled self-incrimination. However, that protection is beginning to erode as a Florida Court of Appeals recently ruled that the government can force an iPhone user to release their passcode.

In State v. Stahl, (Second District Court of Appeal of Florida, Case No. 2D14-4283, Dec 7 2016) the State filed a motion to force Stahl to give up his password, alleging that there was no Fifth Amendment implication in doing so. The Court agreed holding that “Unquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahl’s control or possession of the passcode, and the self-authenticating nature of the passcode. This is a case of surrender and not testimony.”

Given the increasing reliance on fingerprint and facial recognition as a means of authentication, this area may change even further since police can take fingerprints and photos incident to an arrest.  Also, note that Carpenter vs. United States is pending before the Supreme Court now. This case asks if authorities need a probable-cause court warrant to access people’s mobile phone location history by “pinging” cell phone towers or is this practice an exception to the US v. Jones decision requiring a warrant for a GPS tracker to be placed on a car.  The theory here relies on the third-party doctrine, which holds that we lose Fourth Amendment protection when we disclose information, such as cell phone locations, to a third party such as ATT or Verizon.

Finally, always keep in mind that a person may give law enforcement the right to conduct a search, but the consent must be voluntarily given with full understanding of the person’s rights.

We’ll publish Part 3 – Issues Managing ESI Data in Criminal Cases – on Friday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in this eDiscovery in Criminal Cases series and see how it may impact you and your organization.  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.

The Sedona Conference Has Published the Final Version of its Data Privacy Primer: eDiscovery Best Practices

With the Microsoft Ireland case being argued before SCOTUS on February 27 and the General Data Protection Regulation (GDPR) going into effect in May (click here to register for our next webcast on that topic), it’s a big year for data privacy.  In keeping with that theme, The Sedona Conference® (TSC) has published the final version of a primer to help with this growing issue.

Last week, TSC and its Working Group 11 on Data Security and Privacy Liability (WG11) rolled out the final version of its new Data Privacy Primer, almost exactly a year after rolling out the public comment version.  This final version contains several updates following thorough consideration of the public comments submitted between January and April 2017.

WG11 developed the Data Privacy Primer to provide a practical framework and guide to basic privacy issues in the United States and to identify key considerations and resources, including key privacy concepts in federal and state law, regulations, and guidance.

As we noted last year, the Primer is “intended to provide a practical framework and guide to basic privacy issues in the United States and to identify key considerations and resources, including key privacy concepts in federal and state law, regulations, and guidance.”  The TSC notes that it focuses on privacy laws in the U.S. in this Primer and that global privacy laws are outside the scope of its coverage. It also focuses primarily on privacy issues arising under civil rather than criminal law (though criminal law implications are addressed “at various points” in the Primer).

The Primer covers topics ranging from Common Law of Privacy to Federal and State Government Laws and Act regarding privacy policies and protections to discussions of general consumer protection, health (including HIPAA) and financial protections.  It also discusses Workplace and Student privacy considerations which ranges from discussions about use of company equipment and email and bring your own device (BYOD) policies in the workplace and privacy protections for educational records.  Apparently, there were a lot of public comments, because the PDF file for the Primer has ballooned up to a whopping 175 pages (from 115 for the public comment version).  So, it’s not exactly “light” reading for a weighty topic.  :o)

So, what do you think?  How does your organization address data privacy?  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.

Understanding eDiscovery in Criminal Cases: 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, including our webinar last Thursday (Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018), which was great.  If you missed it, you can check out the replay here.  Tom also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Now, Tom has written another terrific overview for Understanding eDiscovery in Criminal Cases that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

Criminal cases have long been thought of as an arena devoid of electronic discovery issues.  In fact, in 2012 eDiscovery expert Craig Ball wrote in a column regarding the then recently published “Recommendations for Electronically Stored Information Discovery Production in Federal Criminal Cases,” that “… apart from meeting Brady obligations, I think most lawyers regard criminal law as an area where there is no discovery, let alone this new-fangled e-discovery.”

But attorneys who regularly handle criminal cases know that was not the case then, and it is certainly not the state of the field now.  This paper shares a short history of the development of standards for eDiscovery in criminal matters, focusing on specific examples from the Federal court system. It also highlights main issues of importance regarding eDiscovery in criminal matters.

BACKGROUND

In 2004, Judge Marcia Pechman of the Western District of Washington presided over the white-collar case against Kevin Lawrence and his company, Znetix.  That case had nearly 1.5 million scanned electronic documents which at the time was considered an extremely high volume and caused logistical problems for both the parties and the Court.  In 2005, after that trial had concluded, Judge Pechman convened a group of attorneys from the U. S. Defenders Office and the US Attorney in Seattle to discuss more efficient and cost-effective ways to deal with electronic documents in large cases.  This group included Russ Aoki, then a Criminal Justice Act (CJA) Panel attorney appointed to represent Mr. Lawrence and now Coordinating Defense Attorney in complex matters for the Defenders.

That group created a set of best practices policies for large document cases and wiretap surveillance evidence. Those policies were in effect in the Seattle federal court as a local rule for many years before the document mentioned by Craig Ball in his column.  Several other groups then began meeting around the country, eventually resulting in the 2012 protocol which was actually a project of a Joint Technology Working Group of federal criminal practitioners created by the Director of the Administrative Office of the United States Courts (the supervising agency of the U.S. Defenders Office) and the U.S. Attorney General.

The point of this timeline is to show that although attorneys working in the criminal areas have a duty to preserve and produce electronically stored information (ESI) just as their civil brethren do, most state and federal criminal discovery is statutory, or rule-based.  Constitutional concepts apply in much the same manner as the FRCP guide civil matters, to ensure a fair trial and due process, and include the right against self-incrimination and the right against unreasonable searches and seizures.

But criminal cases involve some issues specific to that practice, and it is those we will now discuss.

Issues

An excellent overview of all the issues involved in criminal eDiscovery practice can be found in Criminal Ediscovery: A Pocket Guide for Judges. A 2015 publication of the  Federal Judicial Center authored by Sean Broderick, National Litigation Support Administrator, Administrative Office of the U.S. Courts, Defender Services Office; Donna Lee Elm, Federal Defender Middle District of Florida; Andrew Goldsmith, Associate Deputy Attorney General & National Criminal Discovery Coordinator U.S. Department of Justice; John Haried, Co-Chair, eDiscovery Working Group — EOUSA U.S. Department of Justice and Kirian Raj, Senior Counsel to the Deputy Attorney General U.S. Department of Justice.

That work focuses on a number of issues that are beyond the scope of this document and should be consulted as a resource.  This discussion, however, will focus on the following issues:

  1. Overview of Rules for Criminal Matters
  2. Issues Managing ESI Data in Criminal Cases
    • How Data is Acquired
    • Common Data Types
    • Data Exchange Formats
    • Time Issues Specific to Criminal ESI
  3. Working with Social Media as Evidence
  4. Border Entry

We’ll publish Part 2 – Overview of Rules for Criminal Matters – on Wednesday.

So, what do you think?  Do you handle criminal cases and have a lot of eDiscovery? Read more about it in the following parts of our eDiscovery in Criminal Cases series and see how it may impact you and your organization.  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.

No Sanctions for Spoliation of ESI Against Plaintiff Leads to Summary Judgment Against Defendant: eDiscovery Case Law

We just completed our four part review of case law for 2017 and Tom O’Connor and I discussed important cases for 2017 in our webcast yesterday (click here to check it out).  Now, on to cases to cover for this year…

In IBM v. Naganayagam, No. 15 Civ. 7991 (NSR) (S.D.N.Y. Nov. 21, 2017), New York District Judge Nelson S. Romàn, finding that no intent to deprive by the plaintiff and no prejudice against the defendant for spoliation of ESI, denied the defendant’s motion for spoliation sanctions, which facilitated granting the plaintiff’s motion for summary judgment against the defendant by Judge Romàn.

Case Background

In this action against the defendant (a former employee of the plaintiff who had received several Equity Award Agreements (EAAs) during his employment which the plaintiff sought to rescind once the defendant left his employment to join a competitor), the plaintiff filed a motion for summary judgment in the case and the defendant filed a cross-motion pursuant to Rule 37 of the Federal Rules of Civil Procedure for spoliation sanctions.

On October 31, 2016, the defendant filed a motion to compel production of the plaintiff’s strategic plans for Australia and New Zealand, e-mails related to the defendant’s departure from the plaintiff that were referenced the deposition of the defendant’s former supervisor, a list of the defendant’s accounts, and the defendant’s own e-mails from the course of his employment with the plaintiff.  The court issued an Opinion and Order on December 9, 2016, denying the defendant’s request to compel the production of both his own emails and client account information as well as his supervisor’s emails, finding that the defendant had failed to establish the relevance of these materials. However, the court did rule that the plaintiff was required to produce the strategic plans generated by the plaintiff delineating their competitors.  After the plaintiff indicated it was unable to locate the strategy plans, the plaintiff filed a motion for summary judgment in January 2017 and the defendant filed a cross-motion for adverse inference spoliation sanctions ten days later.

Judge’s Ruling

When considering the defendant’s request for sanctions, Judge Romàn noted that “Although the more lenient sanctions standard under Rule 37(e) did not go into effect until after Plaintiff filed the Complaint in the present action, the amended Rule 37(e) can apply retroactively”, observing that the Order included by Chief Justice Roberts (when transmitting the new Rule to Congress) indicated that it would govern “insofar as just and practicable, all proceedings then pending.”

Noting that “amended Rule 37(e) only allows for adverse inference sanctions where the non-movant acted intentionally to deprive another party use of the ESI during litigation”, Judge Romàn, observing that “Defendant merely alleges that Plaintiff acted negligently rather than intentionally”, denied the request for adverse inference sanctions against the plaintiff.  Also, determining that a lack of prejudice against the defendant for any potential spoliation, Judge Romàn ruled that “less severe spoliation sanctions are similarly unwarranted” and denied the defendant’s motion for spoliation sanctions.  With that considered, Judge Romàn found that “there is no genuine dispute of material fact regarding Defendant’s breach of the Plan and EAAs”, and granted the plaintiff’s motion for summary judgment.

So, what do you think?  Should the court have ruled it differently?  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.

2017 eDiscovery Case Law Year in Review, Part 4

As we noted yesterday, Tuesday and Monday, eDiscovery Daily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to possession, custody and control, subpoena of cloud provider data, waiver of privilege and the first part of the cases relating to sanctions and spoliation.  Today, let’s take a look back at the remaining sanctions and spoliation cases.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

But first, it’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on TODAY’S webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

SPOLIATION / SANCTIONS

Here are the remaining fifteen cases related to spoliation and sanctions below:

Court Says Rule 37(e) Doesn’t Apply When Recording Was Intentionally Deleted: In Hsueh v. N.Y. State Dep’t of Fin. Services, New York District Judge Paul A. Crotty relied upon inherent authority to impose sanctions and determined “that an adverse inference is the appropriate remedy” for the plaintiff’s deletion of a recorded conversation with an HR representative, agreeing with the defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording.”

Court Grants Summary Judgment After Plaintiff’s Spoliation Motion Denied: In Taylor v. Thrifty Payless, Inc., d/b/a Rite-Aid, Oregon District Judge Marco A. Hernandez granted the defendant’s motion for summary judgment after denying the plaintiff’s request for spoliation sanctions against the defendant for failing to preserve store videos that were taken on the day of her slip and fall in the defendant’s store.

Court Grants Motion for Terminating Sanctions Against Defendants for Intentional Spoliation: In Omnigen Research et. al. v. Wang et. al., Oregon District Judge Michael J. McShane granted the plaintiffs’ Motion for Terminating Spoliation Sanctions and agreed to issue an Order of Default Judgment in favor of the plaintiffs (while dismissing the defendants’ counterclaims) due to the defendants’ intentional destruction of evidence on several occasions.

With Ample Evidence of Bad Faith, Court Sanctions Defendant for Failure to Produce Documents: In CrossFit, Inc. v. Nat’l Strength and Conditioning Assn., California District Judge Janis L. Sammartino granted the plaintiff’s motion for several issue, evidentiary, and monetary sanctions, but denied the plaintiff’s request for terminating sanctions due to the defendant’s bad faith that resulted in the defendant’s failure to produce documents.

Court Declines to Impose Sanctions for Failure to Preserve Web History: In Eshelman v. Puma Biotechnology, Inc., North Carolina Magistrate Judge Robert B. Jones, Jr., among other rulings, denied the plaintiff’s motion for an order permitting a jury instruction in response to the defendant’s failure to preserve certain internet web browser and search histories, concluding that the plaintiff “is not entitled to a sanction pursuant to Rule 37(e)(1)” and that the plaintiff “is not entitled to an adverse jury instruction as a sanction pursuant to Rule 37(e)(2).”

Defendant Not Sanctioned Despite Use of Evidence Wiping Software: In HCC Ins. Holdings, Inc. v. Flowers, Georgia District Judge William S. Duffey, Jr. denied the plaintiff’s motion for adverse inference sanctions despite evidence that the defendant had used evidence wiping software twice after being ordered to produce her personal computer, stating that the plaintiff “offers only bare speculation that any of its trade secrets or other data were actually transferred” to the defendant’s laptop.

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: In Mueller v. Swift, Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between the plaintiff and his supervisors] constitutes sanctionable spoliation of evidence”, but rejected the defendants’ request to make a finding of bad faith and to give the jury an adverse inference instruction, opting instead for permitting the defendants to cross-examine the plaintiff in front of the jury regarding the record of his spoliation of evidence.

Court Grants Defendant’s Request for $18.5 Million in Attorney Fees and Costs: In Procaps S.A. v. Patheon Inc., Florida District Judge Jonathan Goodman, in a very lengthy ruling, granted the defendant’s supplemental motion for attorney’s fees and non-taxable costs in the full amount requested of $18,494.846.  We’ve covered this case several times over more than three years.

Court Grants Lesser Sanctions Against Defendant for Various Discovery Issues: In New Mexico Oncology v. Presbyterian Healthcare Servs., New Mexico Magistrate Judge Gregory B. Wormuth, detailing numerous defendant discovery deficiencies alleged by the plaintiff, ruled that the “harsh sanctions of default judgment or an adverse jury instruction” requested by the plaintiff “are not warranted” and instead opted to require the defendant to pay plaintiff costs related to activities resulting from defendants’ over-designation of documents as privileged and recommended that the defendants be ordered to pay the plaintiff 75% of the costs associated with its Motion for Sanctions including all fees paid to expert witnesses to prepare reports and testify at the motion hearing.

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: In Barry v. Big M Transportation, Inc., et al., Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve a tractor-trailer involved in an automobile accident and its “Electronic Data/Electronic Control Module (ECM) Vehicle Data Recorder/Black Box” and the data associated with the ECM device.  As an alternative sanction, Judge Ott indicated the intent to tell the jury that the ECM data was not preserved and to allow the parties to present evidence and argument at trial regarding the defendant’s failure to preserve the data.

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: In Mitcham v. Americold Logistics, LLC, Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a copy of a journal she kept while employed by the defendant and for her failure to produce the original copy of the journal by granting leave to re-open the plaintiff’s deposition for an additional two hours to examine the plaintiff about the journal and associated fees and expenses, but denied the defendant’s request for fees and expenses associated with the filing of the instant Motion and denied the defendant’s request for an adverse inference instruction.

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve web pages containing disputed images, and motion in limine to preclude the testimony of a defense expert witness for failing to list him in the defendant’s initial disclosures.

Court Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: In Catrinar v. Wynnestone Communities Corp., et al., Michigan Magistrate Judge R. Steven Whalen denied the plaintiff’s Motion for Discovery Sanctions (requesting a default judgment) for fabricating and producing false evidence, finding that the defendant’s production of two versions of an email fail all four factors of the Harmon test applied by the court in this case to determine whether the defendant’s failure was due to willfulness, bad faith, or fault and whether the plaintiff was prejudiced by the defendant’s conduct, among other factors.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: In GN Netcom, Inc. v. Plantronics, Inc., Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the defendant’s spoliation for the “intentional and admitted deletion of emails” ruled on earlier, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial, rather than respond to the four spoliation-related questions posed by the plaintiff or defendant.

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: In E.E.O.C. v. GMRI, Inc., Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion for sanctions for spoliation of paper applications, interview booklets, and emails.  Judge Goodman did not grant the request for most-severe type of relief sought – permissible inferences at the summary judgment and trial stages – but did rule that the plaintiff could “present evidence of the purportedly destroyed and/or missing paper applications, interview booklets and guides, and emails to the jury” and “argue to the jury that Seasons 52 acted in bad faith (as defined by Rule 37(e)(2))”, which could lead to the jury inferring that the lost ESI was unfavorable to the defendant.

That’s it for this year’s review.  Tomorrow, we get started on cases we plan to cover this year!  Stay tuned!

Want to take a look at cases we covered the previous six years?  Here they are:

So, what do you think?  Did you miss any of these?  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.

2017 eDiscovery Case Law Year in Review, Part 1

Once again, it’s time for our annual review of eDiscovery case law!  This is our seventh annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last six(!) years, let’s take a look back at 2017!

Last year, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had nearly 600 lifetime case law related posts, covering over 440 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, as always for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on Thursday’s webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

And, here we go…

ADMISSIBILITY, PROPORTIONALITY AND COOPERATION

Can’t we all just get along?  Again this year, there were plenty of disputes the scope and content of production.  Oh, and how would you like to have $10M shaved off your bill for document review?  Here are fourteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Judge Cuts Over $10M from Attorney Fees Due to Use of Temporary Attorneys for Document Review: The use of temporary associates for document review (and billing at normal staff associate rates) caused a federal judge in Manhattan to reduce the request for attorney fees by $10.3 million in a settlement of a securities case against Bank of America.

Court Defines Narrowed Scope for Requests for Social Media Data: In Scott v. United States Postal Service, Louisiana Magistrate Judge Erin Wilder-Doomes granted the defendant’s Motion to Compel Discovery in part, ordering the plaintiff to provide complete responses to the defendant’s interrogatory and request for production, but only after she limited the scope of both requests, determining them to be “overly broad”.

Court Denies Untimely Motion to Compel Production of Text Messages: In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., Wisconsin District Judge Pamela Pepper denied a motion to compel production of text messages issued by the plaintiffs and third party defendants against the defendant Stryker, agreeing with Stryker that filing the motion almost six months after discovery had closed was untimely.

Lack of Cooperation Leads to Court to Order Scope of Discovery for Defendant: In Bird v. Wells Fargo Bank, after the parties could not agree on the parameters and scope of discovery, California Magistrate Judge Erica P. Grosjean ordered the defendant to produce several categories of documents related to the plaintiff’s former employment, disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

Court Approves Defendant’s Proposed Random Sampling Production Plan: In Duffy v. Lawrence Memorial Hospital, Kansas Magistrate Judge Teresa J. James granted the Motion to Modify Discovery Order from the defendant (and counterclaimant), where it asked the Court to enter a protective order directing it to produce a random sampling of 252 patient records, along with five spares, in order to respond to the plaintiff/relator’s document requests.

Despite Parties’ “Significant Animosity”, Court Orders Them to Meet and Confer: In Elhannon LLC v. F.A. Bartlett Tree Expert Co., Vermont District Judge William K. Sessions, III granted in part and denied in part the plaintiff’s renewed motion to compel, denied motions for sanction by each party against the other, and ordered the parties to engage in further meet-and-confer efforts to narrow their differences on the appropriate scope of discovery.

Court Limits Burden for Defendant to Search Loan Numbers, Splits Costs Between Parties: In Phoenix Light SF Ltd. v. Deutsche Bank Nat’l Trust Co., New York Magistrate Judge Debra Freeman granted the plaintiffs’ motion to compel in part, ordering the defendant to search for 16,000 loan numbers proposed by the plaintiffs’ and ordered the parties to split the costs for performing the searches.

Plaintiff Can Review Documents Deemed as Non-Responsive, But Has to Bear its Own Costs: In Nachurs Alpine Solutions, Corp. v. Banks, Iowa Chief Magistrate Judge C. J. Williams granted in part and denied in part the plaintiff’s motion to compel ESI discovery, by ordering the defendants to produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label and that the plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.

Court Denies Plaintiff’s Request for Defendant’s Source Code Production: In Congoo, LLC v. Revcontent LLC, et al, New Jersey Magistrate Judge Tonianne J. Bongiovanni, finding that the plaintiff “has not met its burden of demonstrating that production of the source code is relevant and necessary”, denied the plaintiff’s Motion to Compel the inspection and production of the defendants’ source code.

Defendant’s Request for Social Media Data is Reasonably Calculated to Be Overbroad: In Ehrenberg v. State Farm Mut. Auto. Ins. Co., Louisiana Magistrate Judge Janis van Meerveld, rejecting the defendant’s request for the plaintiff’s social media data as “reasonably calculated to lead to the discovery of admissible evidence”, identified a level of social media data to be produced by the plaintiff that considered “weighing relevance and proportionality”.

Court Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: In Mann, et al. v. City of Chicago, et al, Illinois Magistrate Judge Mary M. Rowland granted in part and denied in part the plaintiffs’ Motion to Compel the defendant to include certain custodians in their email search, ordering the defendant to search emails of five additional custodians (including the Mayor of Chicago), but not requiring the defendant to search emails for an additional three custodians requested by the plaintiff.  Judge Rowland also denied the plaintiffs’ request for sanctions, finding that the defendant’s conduct was not sanctionable.

Court Denies Motions to Compel Against Various Defendants, For Various Reasons: In Blosser v. Ashcroft, Inc., et al., Washington District Judge Benjamin H. Settle settled this dispute for now between the plaintiffs and three defendants over discovery disputes by denying the plaintiffs’ motions to compel against all three defendants, two of them without prejudice.

Court Chastises Parties for Turning Case into a “Discovery Slugfest”: In UnitedHealthcare of Fla., Inc. et al. v. Am. Renal Assoc., Inc. et al., Florida Magistrate Judge William Matthewman granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion.  Judge Matthewman also chastised both parties for their lack of cooperation on search terms.

No Dismissal of Claim Against Defendant Accused of Transferring Company Info to Dropbox Account: In Abbott Labs. v. Finkel, Colorado District Judge Christine M. Arguello denied the defendant-movant’s motion to dismiss the plaintiff-respondent’s conversion claim that the defendant disclosed the plaintiff’s confidential information and trade secrets to a third party and transferred that information to his personal online cloud storage Dropbox account.

EDISCOVERY COST REIMBURSEMENT

We usually have at least a couple of rulings related to reimbursement of eDiscovery costs and legal fees, but we don’t usually get a SCOTUS decision in the mix.  Here are two cases related to eDiscovery cost and legal fee reimbursement.

SCOTUS Reverses and Remands Circuit Court Award of Fees for Discovery Misconduct: In Goodyear Tire & Rubber Co. v. Haeger, the Supreme Court of the United States, in a decision delivered by Justice Kagan reversed and remanded the decision by the US Court of Appeals, Ninth Circuit, for further proceedings, stating that “because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.”

Court Grants Most of Plaintiff’s Cost Recovery Request, Including All eDiscovery Costs: In Ariel Inv., LLC v. Ariel Capital Advisors LLC, Illinois District Judge Matthew F. Kennelly granted the prevailing plaintiff’s request to tax most requested costs in the amount of $99,378.32, including the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs.

We’re just getting started!  Tomorrow, we will cover cases related to discovery about discovery, technology assisted review, form of production disputes, objections to production requests and an interesting dispute between an eDiscovery provider and their former sales people.  Stay tuned!

Want to take a look at cases we covered the previous six years?  Here they are:

So, what do you think?  Did you miss any of these?  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 New Partner for eDiscovery Daily!: eDiscovery Trends

When we first started the eDiscovery Daily blog back in September 2010, it took a while for us to gain traction.  In fact, we were happy when we had 100 views in a given day on the blog.  Now we get several times that number daily.  Even on a holiday like Christmas Day, we still considerably exceed those early blog view numbers.  Back then, you could only view our blog from within our own site, but that’s not true anymore.  And, we’ve just added a new partner to the mix this week!

This week, the LexBlog Network began covering the eDiscovery Daily Blog and linking to our posts on their site.  The LexBlog Network is a community of more than 15,000 lawyers publishing on more than 1,000 blog sites. The network curates the best posts of members and shares them to network members via a consolidated website, blog feeds, and emails.  Our posts can be found on the site in the E-Discovery channel here.

LexBlog was founded by Kevin O’Keefe, who has his own LexBlog blog Real Lawyers Have Blogs, which is a terrific blog site about various legal, technology, social media and (of course) blogging topics (that sentence may have just set a record for the most times “blog” was used in a sentence).  LexBlog also made a recent significant announcement over the holidays that Bob Ambrogi, author of the terrific LawSites blog (which has been one of our favorite sources for stories over the years), has joined as publisher and editor-in-chief.

Over the years, we’ve been able to partner with other organizations to expand the reach of our blog.  In March of 2015, we announced that we had become an Education partner with EDRM and the EDRM site has a dedicated eDiscovery Daily page with links to our posts.  In October of 2016, we joined the JDSupra network as a partner and many of our posts are distributed through that network as well (and available here, try to ignore the picture of my big fat head).  That partnership has extended the reach of the blog considerably and we’ve even made the monthly most read list a few times (and won an award too, as you can see below).  :o)

We’re grateful to all of our partners to helping us extend the reach of this blog and excited about our new partner, The LexBlog Network.  Check it out!

Next week, starting Monday or Tuesday, we will be publishing our seventh annual case law review, with a recap of over 60 case law decisions we covered last year.  If you missed any, this is your opportunity to catch up!

So, what do you think?  Do you get your eDiscovery Daily directly from our site or via one of our partners?  Please share any comments you might have with us or let us know 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.

Your “Mashup” of eDiscovery Market Estimates Can’t Possibly Be Any Earlier: eDiscovery Trends

It’s become an annual tradition – the release of the eDiscovery Market Size Mashup that Rob Robinson compiles and presents on his Complex Discovery site each year.  It’s also become an annual tradition for him to release it earlier and earlier each year.  So, over the holidays, Rob released his worldwide eDiscovery services and software overview for 2017 to 2022.

Since this is the sixth year we have covered the “mashup”, we can now start to gauge how accurate those first predictions were.  The first “mashup” covered estimates for 2012 to 2017, so we can see how close the estimate was for 2017 way back when.  We’ve also covered the estimates for 2013 to 2018, 2014-2019 (in two parts), 2015 to 2020 and 2016 to 2021.

Taken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts, and discussions (sources listed on Complex Discovery), the following eDiscovery Market Size Mashup shares general market sizing estimates for the software and services area of the electronic discovery market for the years between 2017 and 2022.

Here are some highlights (based on the estimates from the compiled sources on Rob’s site):

  • The eDiscovery Software and Services market is expected to grow an estimated 15.42% Compound Annual Growth Rate (CAGR) per year from 2017 to 2022 from $9.24 billion to $18.93 billion per year. Services will comprise approximately 69.8% of the market and software will comprise approximately 30.2% by 2022.
  • The eDiscovery Software market is expected to grow at an estimated 15.82% CAGR per year from $2.74 billion in 2017 to $5.71 billion in 2022. In 2018, software comprises 29.8% of the market and, by 2022, 70% of the eDiscovery software market is expected to be “off-premise” – a.k.a. cloud and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • The eDiscovery Services market is expected to grow at an estimated 15.26% CAGR per year from 2017 to 2022 from $6.5 billion to $13.22 billion per year. The breakdown of the services market by 2022 is expected to be as follows: 66% review, 19% processing and 15% collection.

If we look at the original “mashup” that we covered for 2012 to 2017, the original eDiscovery Software and Services market estimate for 2017 was $9.81 billion, the original Software portion of the estimate was $2.78 billion and the original Services portion of the estimate was $7.03 billion.  So the software estimate was almost “spot on”, while the services estimate was overstated by about half a billion.  Pretty darn close.

A couple of other notable stats:

  • The U.S. constitutes approximately 65% of worldwide eDiscovery software and services spending in 2017, with that number decreasing to approximately 60% by 2022.
  • Off-Premise software spending constitutes approximately 50% of worldwide eDiscovery software spending in 2017, with that number increasing to approximately 70% by 2022.

So, what do you think?  Do any of these numbers surprise you?  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.

It’s 2018! How Confident Are You in the State of eDiscovery Business?: eDiscovery Trends

We’re back!  Happy New Year!  It’s a new year and a new chance to voice your opinion in the latest quarterly eDiscovery Business Confidence Survey!  This time, it’s the Winter 2018 eDiscovery Business Confidence Survey created by Rob Robinson and conducted on his terrific Complex Discovery site.

It’s the third year of the quarterly survey and we’ve covered every round of the survey so far (2016 coverage of results are here, here, here and here, 2017 coverage of results are here, here, here and here).  As always, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem.  To date, the survey has been administered eight times over two years with 842 individual responses. Survey participants range from eDiscovery experts and educators to analysts and commentators in all sectors of the eDiscovery ecosystem to include corporations, law firms, governmental agencies, research firms, and industry associations.

It’s a simple nine question survey that literally takes about a minute to complete.  Who hasn’t got a minute to provide useful information?  As always, individual answers are kept confidential.

The Winter 2018 Survey response period is between today and achievement of 100 responses or February 28, 2018 (whichever comes first).  If the past is any indication, chances are the survey will be closed way before February 28.  So, vote early if you want to be counted!  What more do you need?  Click here to take the survey yourself.

As always, eDiscovery Daily will cover the results, looking at quarter over quarter and year over year trends to see how confident we all are in the business of eDiscovery.

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know 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.