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Electronic Discovery

IT Will Scare You – eDiscovery Horrors!

Today is Halloween!  Hard to believe, but for eight years now, we have identified stories to try to “scare” you with tales of eDiscovery and cybersecurity horrors because we are, after all, an eDiscovery blog.  Let’s see how we do this year.  Will IT scare you?

Evidently, until just a few days ago, this firm failed to acknowledge a data breach that occurred last year (involving some of Britain’s wealthiest people) until international journalists had a chance to see the leaked information.

What about this?

More rich people compromised.  When you’re a lawyer and you find out that you’ve inadvertently produced client confidential information in litigation, it’s a bad day. When you find out that confidential information is personal information on thousands of the wealthiest investors in your client’s portfolio, it’s an even worse day. And, when you find out that disclosure is being covered by The New York Times, it’s a lawyer’s worst nightmare.

Or this?

Did you know that everything you’ve learned about how to create secure passwords for the past few years is wrong?

How about this?

You probably think that using three different evidence wiping programs before turning over a laptop for inspection will certainly lead to sanctions for spoliation.  Not necessarily.

Or maybe this?

Think data breaches are expensive?  Try this one.  A major data breach cost this health insurance provider over $100 million to settle the class-action lawsuit against it.

Have you considered this?

On this Halloween, a real tale of murder (no joke) and how the victim’s Fitbit may have blown her husband’s story of what happened apart.  Then again, maybe it’s not so surprising, considering how much data each of us generates every minute.

Finally, how about this?

If you want to fire a whistleblower and then put together a bad performance review of him afterward, it could cost you $10.8 million.

Scary, huh?  If the possibility of expensive data breaches, embarrassing inadvertent disclosures and more data being tracked about you than ever scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you seriously want to get into the spirit of Halloween and be scared, check out this video about some clown in the IT department.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!  And, Go Astros!

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.

Last Year the Panama Papers, This Year the Bermuda Briefs?: Cybersecurity Trends

Last year, we covered the massive data breach at Panama-based law firm Mossak Fonseca (11.5 million documents, 2.6 total TB – yes, terabytes – of data stolen) that has come to be known as the “Panama Papers”.  Now, a Bermuda law firm has finally admitted to a data breach that evidently occurred last year.

According to The Register (Panic of Panama Papers-style revelations follows Bermuda law firm hack, written by John Leydon), Bermuda-based firm Appleby only admitted it had suffered the breach – which actually happened last year – after a group of journos from the International Consortium of Investigative Journalists (ICIJ), who had seen the leaked information, began asking awkward questions.

In a statement, Appleby denied allegations of any tax evasions or other wrongdoing by itself or its clients while admitting that it was “not infallible”. The law firm went on to state that it had shored up its security since the hack, stating “We are committed to protecting our clients’ data and we have reviewed our cyber security and data access arrangements following a data security incident last year which involved some of our data being compromised. These arrangements were reviewed and tested by a leading IT Forensics team and we are confident that our data integrity is secure.”

The Daily Telegraph (subscription required) reported that the leak involved some of Britain’s wealthiest people, who were said to be consulting lawyers and public relations executives in preparations for possible fallout from the hack.

Hat tip (as always) to Ride the Lightning, who noted that Appleby employs 470 staffers and operates from 10 offices across the world. It has stated that it offers services to global public and private companies, financial institutions as well as “high net worth individuals.”

It seems like a lot of “high net worth individuals” are getting their information stolen these days.  As Willie Sutton was reported to have said about why he robbed banks (though he denied saying it in later years) – because that’s where the money is.  Glad I don’t have that problem!  ;o)

BTW, if the term “Bermuda Briefs” takes off, you heard it here first…

So, what do you think?  What should happen to a law firm (or any organization) that fails to report a data breach in a timely manner?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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 Relativity Conference was “Fest-ive” This Year: eDiscovery Trends

As I’ve noted for most of the week, Relativity Fest ’17 was held this week in Chicago at The Hilton Chicago.  Having not been to a Relativity Fest before, it was an eye opening experience.  Here are a few of the highlights.

Attendee Breakdown: According to the opening keynote (below), there were 1,003 Litigation Support attendees, 232 IT & Security attendees, 224 “Executives”, 148 Attorneys, 135 Sales and Marketing attendees, 80 Paralegals, 58 Developers, 31 Academics, 19 Press and Analysts attendees and 4 Judges (see below for those) for a total of 1,934 attendees overall.

Opening Keynote on Monday Morning: In a style and size similar to an Apple product launch, Andrew Sjeja (Founder and CEO of Relativity) kicked off the main conference with an opening keynote address that discussed the conference and (of course) covered key Relativity current and upcoming features.  As part of the 90+ minute(!) presentation, Andrew called up several clients to discuss their case study experiences with various Relativity features.  Here’s a pic of Andrew on the massive stage (I was too close to the front to get all of it):

Judicial Panel on Monday Afternoon: Not surprisingly, this panel – moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and Justice Peter Vickery of the Supreme Court of Victoria in Australia – did not disappoint.  The panelists discussed their opinions on several cases, including the spoliation case involving Taylor Swift, the Texas Supreme Court decision involving State Farm and the dispute over form of production, the murder cases involving evidence from IoT devices Amazon Echo and Fitbit, a discussion of the state of Technology Assisted Review and, of course, the ubiquitous advice from Judge Peck to always get a 502(d) non-waiver of privilege order.  Here’s a pic of that panel:

ACEDS Happy Hour on Monday Evening: ACEDS had a terrific happy hour on Monday, gave a shout out to Tom O’Connor on his birthday, and I visited with everybody from my CloudNine colleagues to Kelly Twigger to Bill Hamilton to Andy Sjeja to Tom and Gayle O’Connor to David Horrigan to George Socha to Jim Gill.  I’m sure I’m missing a few names.  But, getting a chance to better know your colleagues is always fun!

eDiscovery in the Cloud Panel on Tuesday Morning: You didn’t think I was going to forget the panel I was on, did you?  The session was moderated by David Horrigan of Relativity and we were joined by Ari Kaplan, Principal at Ari Kaplan Advisors, Kelly Twigger, Founder of ESI Attorneys and Rachi Messing, Senior Program Manager at Microsoft.  Rachi’s name is pronounced like “Rocky” and the hotel must have thought the real “Rocky was there because the temperature was like a meat locker in our session!  Anyway, we talked about a variety of topics, ranging from defining different types of cloud implementations to using the cloud to security and privacy in the cloud (spent a lot of time there, especially given the recent cases involving Microsoft).  Zach Warren of LegalTech News wrote an article about our session here (free subscription required), which I appreciate (even though there’s a typo in one of my quotes – see if you can find it!) and I was honored and excited to be part of the panel discussion.  Here’s a pic of us:

A Practical Roadmap for EU Data Protection and Cross-Border Discovery on Tuesday Afternoon: Presented by Jason Priebe and Natalya Northrip of Seyfarth Shaw.  With only about 7 months to go before General Data Protection Regulation (GDPR) hits on May 25 of next year, the presenters provided a very thorough discussion of the differences between the EU Data Privacy Directive and the GDPR, the requirements for GDPR, privacy rights under GDPR, requirements for a Data Protection Officer (DPO) and how (of course) GDPR will affect cross-border discovery.

Extra Stuff: Relativity provided breakfast and lunch each day and also hosted a terrific speakers’ dinner on Monday night.  From what I understand, their networking event/party on Tuesday night at the Museum of Science and Industry was a blast!  Sadly, I had to leave to come back to Houston to do a webcast on Wednesday (which is also why I don’t have any Wednesday highlights).

Suggestions for Improvement: The sessions were great, but it would be great to allow a little more time in between sessions to get to the next one.  Fifteen minutes is not a lot of time when the previous session runs long AND you need to take a bio break AND you have no idea where the next session is.  Which leads me to my next suggestion: please post the floor number next to the name of the room to help us locate the session room more quickly.  Sessions were on at least four different floors and were sometimes difficult to find.  Minor gripes in an otherwise excellent conference.

As a development partner in the Relativity ecosystem, CloudNine was at the conference and was there to provide demonstrations of our Outpost for Relativity that automatically ingests and loads data into Relativity based on your specified criteria.  If you missed it and would like a demo, please request one at info@cloudnine.com.

So, what do you think?  Did you attend Relativity Fest this year?  If so, what did you think?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: eDiscovery Case Law

In GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Delaware, Oct. 5, 2017), 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.

In this case with claims of monopolization, attempted monopolization and common-law tortious interference with business relations against the defendant, the defendant received “punitive sanctions in the amount of $3,000,000” for the “intentional and admitted deletion of emails” by the defendant’s Senior Vice President of Sales.  After reviewing the parties’ joint status report, as well as other materials submitted throughout the case, and having discussed the issues with the parties on multiple occasions, including during the pretrial conference, Judge Stark chose to determine the preliminary and final jury instructions he would give, as well as the “Stipulated Facts” he would read to the jury at or near the start of the trial.

Judge Stark identified this language as the “preliminary instruction {that} will be provided to the jury”:

“SPOLIATION

The law requires that parties preserve relevant documents, including emails, when litigation is pending or contemplated. This is because, when one party sues another, each side has the right under the law to inspect or obtain production of internal documents and other evidence from the other party.

The destruction or material alteration of evidence or the failure to preserve documents or emails for another party’s use as evidence in pending or reasonably foreseeable litigation is referred to as “spoliation.”

In this case, it has been determined that Plantronics committed spoliation.

It has also been determined that Plantronics’ spoliation was not accidental and that evidence relevant to this case may have been destroyed by Plantronics. As such, during this trial, you may hear questions and answers from the parties referencing missing or destroyed emails and Plantronics’ spoliation of evidence. While the exact contents of the spoliated evidence are unknown, you, the jury, will be permitted – but not required – to infer that the lost documents were relevant and favorable to GN’s case and/or harmful to Plantronics’ case.

*3 You will learn during trial that Don Houston, a former employee at Plantronics, failed to preserve certain emails after his duty to preserve them arose. You will also hear that efforts were made to recover the emails that Mr. Houston failed to preserve and that additional emails were produced to GN through these recovery efforts.

I will have further instructions on these matters for you at the conclusion of the trial.”

Judge Stark identified this language as the “final instruction {that} will be provided to the jury”:

“SPOLIATION

I instruct you that Plantronics failed to preserve evidence after its duty to preserve arose. This failure to preserve is known as ‘spoliation of evidence.’ In other words, spoliation is the destruction or material alteration of evidence or the failure to preserve evidence for another’s use in pending or reasonably foreseeable litigation.

Based on Plantronics’ spoliation, you may, but are not required, to presume that the lost evidence would have been relevant and helpful to GN’s case and/or would have been harmful to Plantronics’ case. Alternatively, you may infer that the evidence not produced would merely have been duplicative of, or similar to, the evidence before you.

In other words, your role is to determine whether Plantronics’ spoliation tilted the playing field against GN. If so, the permission given to you by the Court to infer that the missing documents would have been relevant and helpful to GN and/or harmful to Plantronics is designed to allow you to balance that playing field, should you feel it is necessary.

It is up to you to decide the extent to which the lost evidence was relevant and helpful to GN and/or harmful to Plantronics. Of course, it is impossible to know exactly what evidence was lost – although the parties have tried – so you must make these determinations to the best of your ability based on all of the facts and circumstances of this case. You must then decide how much weight and effect to give to your belief about spoliation in reaching your verdict.”

Judge Stark also identified the 16 stipulations that he would read.  Four of those stipulations would only be read “if, no later than Saturday, October 7 at 3:00 p.m., Plantronics submits an affidavit providing the evidentiary basis for the numerical figures contained in these paragraphs, all of which the Court adopted based on Plantronics’ representations.”

So, what do you think?  Is a jury instruction a sufficient sanction for the “intentional and admitted” spoliation by the defendant?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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.

Today’s the Day to Learn How to Avoid the eDiscovery Disasters of Other High Profile Organizations: eDiscovery Best Practices

The recent eDiscovery failures at Wells Fargo and at the Department of Justice show that eDiscovery mistakes and failures happen even at the largest corporations and government agencies.  Today, you have a chance to learn from their mistakes.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Lessons Learned from Recent eDiscovery Disasters. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the various issues that occurred in these high-profile cases and what to do to avoid them in your own cases.  Topics include:

  • Attorney Duty of Competence
  • Managing Communications: Attorney Responsibilities
  • Managing Communications: Vendor Responsibilities
  • Recommended Workflows for Tracking Review
  • Common Redaction Mistakes and How to Avoid Them
  • Checking for Personally Identifiable Information (PII)
  • Key Takeaways for Better eDiscovery Project Management

I’ll be presenting the webcast, along with Tom O’Connor, who is a Special Consultant to CloudNine.  I’m excited to once again have Tom as a participant in this webcast!  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  It just might keep you from being mentioned in The New York Times – and not in a good way).

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  If you enjoy our blog, you can vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  There’s just a few days left to vote, but you can cast a vote for the blog here.  Thanks!

So, what do you think?  Do you know any other eDiscovery “epic fail” stories?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery in the Cloud: eDiscovery Best Practices

Relativity Fest started on Sunday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) today.  Click here to see our post on some of the anticipated highlights from the conference.

Today’s highlight is my session: e-Discovery in the Cloud, today at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity and we will be joined by Rachi Messing, Senior Program Manager at Microsoft, Ari Kaplan, Principal at Ari Kaplan Advisors and Kelly Twigger, Founder of ESI Attorneys.  If you’re at the show today, come check it out!

Yesterday was a terrific day, starting with the keynote speech from Andrew Sieja, the CEO of Relativity and continuing with terrific sessions, including the The Judicial Panel, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

There were several other great sessions, an ACEDS happy hour and a speaker dinner, with an opportunity to have a great time with other speakers at the show!  Quite a day!  Hopefully, today will be as much fun as yesterday!

So, what do you think?  Are you attending Relativity Fest this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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 Denies Default Judgment Sanctions for Defendant’s Production of Two Versions of Same Email: eDiscovery Case Law

But first, a reminder that Relativity Fest started yesterday and CloudNine is there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.  Today’s highlight is The Judicial Panel, today at 1:00pm, with David Horrigan of Relativity, along with Judge Nora Barry Fischer of the Western District of Pennsylvania, Judge Andrew Peck of the Southern District of New York, Judge Xavier Rodriguez of the Western District of Texas and (all the way from Australia) Justice Peter Vickery of the Supreme Court of Victoria (and the recent landmark TAR decision in that country) to discuss the latest legal developments in eDiscovery.

In Catrinar v. Wynnestone Communities Corp., et al., No. 14-11872 (E.D. Mich. Sept. 30, 2017), 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.

Case Background

In this case regarding the plaintiff’s claim against his former employer alleging violations of the Family Medical Leave Act (“FMLA”) as well as breach of contract and promissory estoppel, the centerpiece of the plaintiff’s Motion for Discovery Sanctions was an allegation that the defendants fabricated and produced false evidence in the case.  The allegation of false evidence stemmed from defendant Silverman’s apparent rewrite of an email originally sent on December 21, 2008, concerning an “E&S” Plan and whether Silverman was aware of the plan or authorized any amendments to the plan.  The original email, which the plaintiff referred to as ‘the real email,’ was written partially in Spanish; the second, which the plaintiff referred to as ‘the fake email,” elaborated more on Silverman’s lack of knowledge of any such plan.  Both emails were dated on December 21, 2008 and the plaintiff argued that the “fake email” fraudulently supported Silverman’s position that he did not authorize an amendment to the E&S Plan, and that the “real email” offered no such support.

The defendant conceded that the native Outlook email file of what the plaintiff referred to as the “fake email” showed that it was created in January 2012, not December 2008.  However, in Silverman’s declaration, he stated that he forwarded the December 2008 email to himself in January 2012 for the purpose of re-writing in English and elaborating on his original message, stating “The point of the two emails is the same.”

Judge’s Ruling

Judge Whalen stated: “The Court’s discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc…: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed or defaulted party was warned that failure to cooperate could lead to dismissal or entry of default judgment; and (4) whether less drastic sanctions were imposed or considered before dismissal or default judgment was ordered.”

Judge Whalen also noted that “In deciding whether to impose ‘the draconian sanction’ of default judgment, the first factor—the party’s willfulness or bad faith in failing to comply with a discovery order—looms large.”  Noting that “Plaintiff filed his complaint on May 9, 2014, about two years and four months after the ‘fake email’ was created”, Judge Whalen, while acknowledging that “the discrepancy between the two emails and Silverman’s explanation as to how the later email came to be created may undoubtedly be exploited to the Plaintiff’s advantage” in trial, nonetheless stated: “I do not find that Plaintiff has shown ‘willfulness, bad faith, or fault’ with respect to the creation of the 2012 email.”  Judge Whalen also found that the plaintiff failed to meet the second Harmon factor, determining that the plaintiff was not prejudiced due to the fact that an “extension of discovery cures any prejudice which might otherwise have occurred as the result of the delay in Defendants’ production of the emails.”  Judge Whalen also found that the third and fourth Harmon factors were also not met, stating: “Defendants have not been previously warned that a default judgment or other sanctions could be imposed for discovery violations, nor have any lesser sanctions been imposed.”  As a result, Judge Whalen denied the plaintiff’s Motion for Discovery Sanctions.

So, what do you think?  Was the defendant’s explanation for the second email plausible?  Please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can still vote for it and help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

Case opinion link courtesy of eDiscovery Assistant.

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.

Google Requests Contempt Order For $10,000 Sanctions Per Day Against…Google: eDiscovery Case Law

But first, a reminder that Relativity Fest starts this Sunday and CloudNine will be there.  As part of the team, I will be there covering the conference for eDiscovery Daily and will speaking(!) on Tuesday.  Click here to see our post on some of the anticipated highlights from the conference.

Last month, we wrote that Google went 0 for 2 in August in its request for review of warrant cases related to the Stored Communications Act of 1986 (SCA) and the order to produce ESI stored internationally that is subject to warrants was upheld in both cases, including a ruling in the Northern District of California on August 14.  Now, Google has filed an instant motion asking the Court to: “a) hold Google in civil contempt of the August 14 order; b) impose sanctions of $10,000 for every day that Google fails to comply; c) stay those sanctions until seven business days after the Ninth Circuit affirms the Court’s order; and d) require Google to preserve any information in its possession that is subject to the search warrant.” As noted in California District Judge Richard Seeborg’s order, “the The terms of the proposed sanctions are similar to the terms of stipulations that Google and other companies have entered into with the government in similar cases in other jurisdictions.”

So, why did Google ask the Court to impose a daily sanction of $10,000 against Google?  Evidently, while the government and Google “agree that Google should be held in contempt of the August 14 order”, they “disagree, however, about the appropriate way to devise a sanction that will ensure Google’s compliance and about whether an evidentiary hearing is needed to conduct that inquiry effectively.”  The government argued that “an evidentiary hearing is needed to assess the equities at stake in this case properly and to devise an appropriate sanction”, while Google contended that there is “no need to develop a more substantial evidentiary record or to devise a more severe sanction than the $10,000 per day fine that Google has proposed.”  Google also noted that “this Court already found in the August 14 order that, ‘[i]n light of the Second Circuit decision in Microsoft and the absence of relevant Ninth Circuit precedent, Google’s diligent, good faith efforts to comply with current law do not warrant contempt at this stage of the proceedings.’”

In ruling on the dispute, Judge Seeborg stated: “Of the two sides, Google’s arguments are more persuasive…The government acknowledges that Google has a right to press its appeal; it is not arguing that Google must turn over the information now. Neither is it arguing—at least at present—that Google should be held in criminal contempt for its past behavior. Thus, the only question currently in need of answer is what sanction will secure Google’s prompt compliance with the August 14 order should its appeal fail.”  Judge Seeborg also noted that “Should Google prevail on appeal, the issue will be moot. If Google loses, it will be required to comply with the August 14 order or be subject to the sanctions imposed by this order. If, at that time, Google fails to turn over data the government believes Google previously possessed but did not preserve, the government can raise the issue and seek an appropriate remedy.”

Tip of the hat to ACEDS for the link to the latest order in this case.

So, what do you think?  Will Google win its appeal?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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 Fall, But Does That Mean That eDiscovery Business Confidence is Falling?: eDiscovery Trends

The results are in from the Complex Discovery Fall 2017 eDiscovery Business Confidence Survey, which concluded two days ago and (as was the case for the 2016 Winter, Spring, Summer and Fall surveys and the 2017 Winter, Spring and Summer surveys) the results are published on Rob Robinson’s terrific Complex Discovery site.  How confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will primarily focus on trends over the past four surveys to see how the responses have varied from quarter to quarter and will take a look at a year over year comparison to the Fall 2016 survey.

The Fall 2017 Survey response period was initiated on October 5, and continued until registration of exactly 100 responses by Tuesday (October 17). No decimal points!  Rob notes that this limiting of responders to 100 (or so) individuals is designed to create linearity in the number of responses for each quarterly survey.  So, in the future, if you want your voice heard, respond early!

Provider Respondents are Still the Majority: Of the types of respondents, 55% were either Software and/or Services Provider (44%) or Consultancy (11%) for over half of respondents as some sort of outsourced provider (over half of total respondents – as always, I’m counting law firm respondents as consumers even though they can also be providers as well).  Law firm respondents comprised a majority of the remaining respondents with 35%.  So, nine out of ten respondents was a provider or law firm participant.  Here’s a graphical representation of the trend over the past four quarters:

When comparing this year’s Fall survey to last year’s survey, the survey was once again less diverse than it was a year ago, especially with regard to the percentage of “Other” respondents.  Next year may be more of a baseline if the 100 respondent limit still applies (it didn’t go into effect until this year):

Over Half of Respondents Continue to Consider Business to Be Good: Over half (55%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with 9% rating business conditions as bad.  Last quarter, those numbers were 53.4% and 5% respectively, so this quarter reflects a bit of an uptick in the “bad” business respondents.  Will that continue?  We’ll see.  Here is the trend for the last four quarterly surveys:

When comparing against last year’s Fall survey, respondents this Fall are slightly more bearish than they were a year ago (slight drop in “business is good” respondents, slight increase in “business is bad” respondents).  Not a significant change, but worth keeping an eye on:

Almost All Expect eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (96%) expect business conditions will be in their segment to be the same or better six months from now (up from last quarter’s 93.1%), and the percentage expecting business to be better rose considerably to 55%.  So, we have a bunch of optimists!  Revenue (at combined 95% for the same or better) rose very slightly from the last quarter, while profit (combined 89%) essentially stayed the same from last quarter (but those predicting higher profits rose over 5 percent).  Here is the profits trend for the last four quarterly surveys:

When compared against last year’s Fall survey, the distribution for profits six months from now in this year’s survey is a bit more polarized than last year’s Fall results with a 3.4% increase of respondents expecting higher profits, but also a 0.4% increase of respondents expecting lower profits:

Nearly a Third Chose Budgetary Constraints as Being Most Impactful to eDiscovery Business: It’s budget time!  Budgetary Constraints was the top impactful factor to the business of eDiscovery over the next six months at 31% (aabout a 50% increase from last quarter) with Increasing Volumes of Data next up at 24%.  The other four factors were comparable: Data Security (13%), Increasing Types of Data (11%, back to its normal position in the pack), Lack of Personnel (also 11%) and Inadequate Technology (at 10%).  The graph below illustrates the distribution across the most recent four quarterly surveys.

A year ago, it was flip-flopped with Increasing Volumes of Data on top and Budgetary Constraints a strong second as the most impactful to eDiscovery business.  Those two factors are usually cited as the top two factors expected to impact eDiscovery business the most:

Executive Leader and Management Respondents Are the Strong Majority: Executive Leadership respondents rose strongly to 48% of respondents (from 41.6% last quarter), while Operational Management respondents also rose (again) to 36% – a total of 84% respondents from leadership and management roles.  Tactical Execution respondents dropped to its lowest percentage yet – 16%.  So, this is a survey primarily of leaders and managers, not so much doers.  Here’s the breakdown of the last four quarters:

The survey is considerably less distributed than last year as well.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.  Winter, Spring Summer or Fall, all you gotta do is call! (or vote)…

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

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.

Windows 10 Fails to “Go Dutch” When it Comes to Protecting Privacy: Data Privacy Trends

After yesterday’s story regarding SCOTUS taking up the Microsoft Ireland case, I’m not trying to make this “bad news week” for Microsoft, but with GDPR looming next year, this seemed like a good story to cover…

According to Silicon (Windows 10 Data Collection Branded A Breach Of Dutch Privacy Law, written by Roland Moore-Colyer), the Dutch Data Protection Authority (DPA) has declared that Windows 10 breaches the data protection law in the Netherlands over the way it processes personal information.

A report filed by the DPA says that Microsoft failed to clearly inform its users on what type of data it was collecting and using and the agency claimed that Windows 10 users “lack control of their data” due to the way Microsoft harvests information.

“It turns out that Microsoft’s operating system follows about every step you take on your computer. That results in an intrusive profile of yourself,” said Wilbert Tomesen, vice-chairman of the DPA.

“What does that mean? Do people know about this? Do they want this? Microsoft needs to give users a fair opportunity to decide about this themselves.”

Microsoft said it had made compiling with Dutch law a priority to avoid having any sanctions posed against it, but also responded justifying why it collects Windows 10 data and explaining that a recent update spells out its data collection policy.

“Since launching Windows 10, we’ve been on a journey listening to feedback from customers and collaborating with regulators around the world,” said Marisa Rogers, Microsoft’s Windows and devices group privacy officer.

“As a result, we’ve made improvements to ensure all versions of Windows 10 meet our customers’ privacy needs and expectations. For example, we’ve worked with Swiss and French data protection authorities to incorporate their guidance, subsequently improving the privacy controls in Windows 10 Home and Pro and earning their positive assessments of the changes.”

“This year we have released a new privacy dashboard and several new privacy features to provide clear choices to our customers and easy-to-use tools in Windows 10. Next week, we have even more privacy improvements coming in the Fall Creators Update.”

Given its current Dutch conundrum, Microsoft’s current feelings about the Dutch may mirror those of this guy…

With the General Data Protection Regulation (GDPR) standard designed to strengthen and unify data protection for all individuals within the European Union (EU) going into effect next May (May 25th, to be exact), expect to continue to see more scrutiny on all companies and their data privacy policies.  And, if you think GDPR doesn’t apply to your firm, you may be wrong about that.

So, what do you think?  Is your organization preparing for GDPR?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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.