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Electronic Discovery

SCOTUS to Take On Microsoft Ireland Case: eDiscovery Trends

A few months ago, we reported that the Department of Justice had asked the U.S. Supreme Court to overturn that landmark appeals court decision handed down last summer in favor of Microsoft Corp. that put their company data stored overseas mostly out of reach of U.S. law enforcement.  Yesterday, SCOTUS, at the urging of a whopping thirty-three states, agreed to take the case.

According to The Washington Post (Supreme Court to consider major digital privacy case on Microsoft email storage, written by Robert Barnes), the Supreme Court of the United States yesterday agreed to hear a dispute between the federal government and Microsoft about emails stored overseas.

The case that SCOTUS accepted on Monday began in 2013 when U.S. prosecutors got a warrant to access emails in a drug-trafficking investigation. It was served on Microsoft in Redmond, Wash. But the data sought was stored on its servers in Ireland. (The company has more than 100 centers in 40 countries.)

Microsoft turned over information it had stored domestically but contended that U.S. law enforcement couldn’t seize evidence held in another country. It said that if it was forced to turn over such information, it would lead to claims from other countries about data stored here.  A judge upheld the warrant, but a panel of the U.S. Court of Appeals for the Second Circuit overturned the ruling. The full circuit then split evenly on whether that decision was correct, and one judge wrote that the Supreme Court needed to provide the ultimate answer.

Thirty-three states also urged the court to take the case, U.S. v. Microsoft. They said that the decision has implications for other technology giants such as Google and Yahoo and that it was “remarkable” that the Second Circuit had held “that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction.”

Microsoft contended that the Stored Communications Act of 1986 (the law considered for this case and also the Google cases earlier this year where Google was ordered to comply with search warrants) did not imagine a world in which “a technician in Redmond, Washington, could access a customer’s private emails stored clear across the globe.”  “The current laws were written for the era of the floppy disk, not the world of the cloud,” Microsoft president and chief legal officer Brad Smith wrote.  He has a point there.

At Relativity Fest next week, I’m sure the topic will come up during our session e-Discovery in the Cloud, on Tuesday, October 24 at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity where 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 going to be there, you won’t want to miss that!

So, what do you think?  Should a 31 year old law determine whether data stored overseas (but accessed here) should be subject to subpoena?  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.

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: eDiscovery Case Law

In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), 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.

Case Background

In this case regarding intellectual property claims against the defendant relating to the allegedly infringing use of certain celebrity photographs, the plaintiffs filed a motion for spoliation sanctions against the defendant for failing to preserve the “webpages” on which it had displayed the Images; and a motion in limine to preclude the trial testimony of a defense expert witness (Robert Coakley) after the defendant failed to list him in its initial disclosures.

Judge’s Ruling

Noting that the “Plaintiffs’ motions are without merit”, Judge Furman stated:

“Given the plain language of [Federal Rule 37(e)], Plaintiffs’ motion borders on frivolous, for the simple reason that they cannot even show that the evidence at issue was ‘lost.’ Several of the Images are still hosted on CMG’s websites…And the record makes clear that Plaintiffs themselves possess copies of the other Webpages—in the form of screen captures taken when they displayed the Images (the ‘Screenshots’)…In fact, Plaintiffs themselves list the Screenshots as trial exhibits…Given that (plus the fact that Defendant does not dispute the authenticity of the Screenshots…or deny that it hosted and displayed the Images…, there is no foundation to impose sanctions under Rule 37(e). And to the extent that there were a foundation, sanctions would be inappropriate because there is no evidence whatsoever that Defendant ‘acted with the intent to deprive another party of the information’s use in the litigation,’…, and Plaintiffs obviously cannot show prejudice ‘as [they] actually possess[ ] copies’ of the relevant evidence.”

As a result, Judge Furman denied the plaintiffs’ motion for sanctions and also denied the plaintiffs’ motion in limine to preclude the testimony of Coakley after the defendant’s failure to list him in the defendant’s initial disclosures, noting that violation was “plainly harmless and thus not a basis for preclusion”, but did note a concern regarding his testimony regarding Google Analytics data the judge deemed as “inadmissible hearsay” and instructed the parties to “be prepared to address that issue at the final pretrial conference”.

So, what do you think?  Should parties be sanctioned for failing to preserve web pages?  Should a screen capture copy of an image be treated differently than an imaged copy of a journal?  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!  If you enjoy our blog, you can 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.

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: eDiscovery Case Law

In Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW (D. Colo. Sept. 20, 2017), 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.

Case Background

In this case in which the plaintiff claimed discrimination and improper termination for filing a formal complaint with a Human Resources hotline, the defendant requested (among other discovery requests) any “handwritten note, recorded communications, calendars, journals, diaries, logs, and the like” that related to the matter, but the plaintiff responded on two occasions that she had produced all such documents.  However, at the plaintiff’s deposition on July 13, 2017, she disclosed that she kept a “journal” to document all conversations she had regarding this matter so that she could recall those conversations in the future should the need present itself.  She also testified that she scanned the original copy of the journal and submitted it to her attorney, and then she shredded the original copy and acknowledged that it had not been previously produced.  The plaintiff then produced a scanned copy of the journal two days later, after the completion of her deposition.

About a month later, in August, the defendant filed an instant Motion seeking fees and expenses incurred by having to re-depose the plaintiff and for filing the instant Motion, as well as an adverse inference instruction sanction against the plaintiff.

Judge’s Ruling

Noting that “both Plaintiff and her counsel certified under Rule 26(g) that Plaintiff’s initial disclosures and responses were complete and accurate; however, a ‘minimal inquiry’ by Plaintiff’s counsel would have revealed the existence of the journal and required its production”, Judge Wang stated that “Ms. Mitcham’s failure to disclose the notebook in a timely fashion as part of her Initial Disclosures or in response to written discovery was not substantially justified. Indeed, Ms. Mitcham offers no, and this court cannot itself ascertain, a plausible explanation that Plaintiff was unaware of the notebook or its relevance to this instant action….it appears that Ms. Mitcham was withholding information (whether intentionally or not) that has hindered the progress of discovery”.

With regard to producing a scanned copy of her journal instead of the original, Judge Wang stated: “Plaintiff argues that her shredding the original journal does not constitute destruction, because she ‘kept a journal in the ordinary court of business and transferred it to computerized form as a matter of routine.’…Plaintiff continues that this satisfies the requirements of Rule 34(b)(2)(E), and that she timely supplemented her incomplete discovery responses with the scanned journal…These arguments are unavailing. Plaintiff’s original journal does not constitute electronically stored information; thus, Rule 34(b)(2)(E) is inapplicable. And, as mentioned above, a Rule 26 violation occurred.”

Judge Wang also determined that the plaintiff “abdicated” her duty to preserve by shredding the original, stating “It is clear that Plaintiff retained counsel the day after her termination and that, at this point, had not yet destroyed her original journal. Though Plaintiff stresses the fact that the scanned copy is just as good as the original, I respectfully disagree. First and foremost, there is no way for this court or the Parties to independently confirm that the scanned copy includes all the pages of the original journal. There is also no opportunity for the court or the Parties to determine from the handwriting, the ink, or otherwise if there are timing differences as to when certain entries were written. Therefore, this court concludes that the destruction of the original was unreasonable under the circumstances, because Ms. Mitcham retained counsel prior to shredding the original, and then scanned and sent a copy of the original to Mr. Olsen {her counsel} at his behest.”

As a result, Judge Wang granted (in part) the defendant’s motion for sanctions 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, determining that such a sanction is “not warranted at this time”.

So, what do you think?  Should parties be sanctioned for failing to preserve original copies of documents or should the requesting party bear the burden of showing that the copy is not complete?  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.

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.

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Cost: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the fifth part of his multi-part article (parts 1, 2, 3 and 4 here, here, here and here) – we have published it in a series over the past couple of weeks.  Enjoy! – Doug

Considering Cost

“In economics, one of the most important concepts is ‘opportunity cost’ – the idea that once you spend your money on something, you can’t spend it again on something else.” Malcom Turnbull

Budgetary constraints are a common hurdle for law firms and legal departments seeking to address the legal, technological, and business elements of eDiscovery. This economic constraint is compounded by the lack of consistency, predictability, and transparency in the pricing of many software offerings, regardless of whether they are on-premise or off-premise, or based on emerging or mature technologies.

As law firms and legal departments strive to select the best solutions for their particular eDiscovery challenges, it is important for them to be able to compare and contrast the pros and cons of different offerings. While many vendors publicly present detailed offering attributes regarding security, capability, and complexity, many do not share public information on pricing and pricing models. Given the fact that budgetary constraints continue to be one of the leading elements impacting the conduct of discovery, by publicly publishing pricing, vendors can help simplify the eDiscovery decision-making process by removing one of the most common concerns early in the evaluation process. That concern being “how much is this going to cost.”

Additionally, just as many software providers seek to integrate the technology in their offerings to simplify discovery, prudent providers are now combining on-premise and off-premise pricing elements within their overall offering to simplify the software procurement process. An example of this pricing integration is the packaging of an overall solution that contains elements of both on-premise and off-premise offerings available for a prescribed timeframe at a single, understandable, and predictable cost.

Quick Takeaway: Given the fact that most eDiscovery software providers understand the cost of delivering their solutions to the market, it seems reasonable for those in the eDiscovery ecosystem to be able to request and expect to receive simplified pricing from providers. This simplified pricing should account for all elements of a software offering, regardless of whether it is on-premise, off-premise, or a combination of the two. Pricing should also be able to be provided for individual projects or time and volume defined subscriptions, trading length of user commitment for user cost benefits.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  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!  If you enjoy our blog, you can 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.

Thanks to ACEDS, Today’s the Day to Learn Whether an On-Premise or Off-Premise Solution is Right For You: eDiscovery Best Practices

When consumers are considering their eDiscovery technology choices, there are more factors to consider today than ever. In addition to considering the functionality of the software application, you now also have to consider whether to buy or “rent” the application, how the software is delivered to you and whether it’s required to be within your firewall or can be an off-premises solution.  Thanks to ACEDS, you can learn today how to sort out those factors and make an educated solution selection.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the ACEDS conducted webcast On Premise or Off Premise? A Look at Security Approaches to eDiscovery.  This one-hour webcast will discuss different on-premise and off-premise eDiscovery solution options and considerations for each. Topics include:

  • Drivers for eDiscovery Technology Solution Decisions Today
  • eDiscovery Industry Market Trends and Their Relation to General Industry Trends
  • What Law Firms are Saying about the Technology
  • What Industry Analysts are Saying about the Technology
  • The Cloud vs. No Cloud Debate
  • Why Not All Cloud Solutions Are the Same
  • A Comparative Approach to eDiscovery Technology
  • Putting a Face on Solutions and Risks
  • Key Components of an eDiscovery Technology Solution

I’ll be presenting the webcast, along with Tom O’Connor, who is a Special Consultant to CloudNine  If you follow our blog, you’re undoubtedly familiar with Tom as a leading eDiscovery thought leader (who we’ve interviewed several times over the years) and I’m excited to have Tom as a participant in this webcast!  To register for it, click here.

So, what do you think?  Do you use on-premise, off-premise or a combination for your eDiscovery solution(s)?  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!  If you enjoy our blog, you can 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.

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Complexity: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the fourth part of his multi-part article (parts 1, 2 and 3 here, here and here) – we will publish it in a series over a couple of weeks or so.  Enjoy! – Doug

Considering Complexity

“Simplicity does not precede complexity, but follows it.” Alan Perlis

The ability of eDiscovery software to deal with data complexity such as being able to ingest and process an increasing number of data formats is one of the most important challenges faced by eDiscovery professionals today. In fact, according to the Summer 2017 eDiscovery Business Confidence Survey, almost 22% of 101 eDiscovery ecosystem respondents highlighted that the challenge of increasing types of data would have the biggest impact on their business during the next six months.

In facing this challenge, many organizations have employed a combination of software offerings, integrated through workflow, to address both non-complex and complex data in their discovery efforts. One example of this combinatorial approach to solving this specific challenge is to employ an off-premise, SaaS-based offering using a private cloud approach based on emerging technology and then leveraging an on-premise, mature eDiscovery processing engine to address volume and file format challenges not able to be addressed by the off-premise platform. This combination approach takes advantage of the speed and cost benefits of the cloud to deal with a majority of eDiscovery volume and file format challenges and the robustness of a mature on-premise offering to address complexity challenges presented by high volumes of data and an increasing number of file formats. While many software providers highlight the fact that their specific offering can handle all eDiscovery challenges, their assertion may have limits. Those limits being that it may take much more time to complete high volume and non-mainstream file format related requests than with the prudent approach of a combination of on-premise and off-premise offerings offering a balance of emerging and technology.

Quick Takeaway: With the complexity of many eDiscovery challenges, a combination of software solutions may be required to accomplish certain complex task requirements satisfactorily. These combinations of solutions may include on-premise and off-premise offerings working in a complementary fashion. Given that most organizations will face a degree of complexity at some point that cannot be solved by a single eDiscovery solution, it seems reasonable to make offering selections that do not prevent efficient interoperability with other platforms.

Thursday, we will address the last area of evaluation, providing a consideration of cost.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  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!  If you enjoy our blog, you can 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.

“Master” Your Knowledge of eDiscovery With This Conference in Washington DC This Week: eDiscovery Trends

If you’re going to be in the Washington DC area this Thursday and/or Friday, October 12th and 13th, join me and other legal technology experts and professionals at The Master’s Conference 2017 DC event.  It’s a day and a half of educational sessions covering a wide range of topics!

The Master’s Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing eDiscovery and the information life cycle.  This year’s Washington DC event covers topics ranging from privacy to cybersecurity to predictive coding and AI, among other things.

The event will be held at The National Press Club, 529 14th St NW, Washington, DC 20045.  It’s about a block and a half away from the White House.  Registration begins at 8am each day, with sessions starting right after that, at 8:30am.

CloudNine will be sponsoring the session On Premise or Off Premise? A Look At Security Approaches to eDiscovery at 2:45pm on Thursday, October 12th.  I will be moderating a panel that includes Kelly Twigger, Principal with ESI Attorneys, James Zinn, Director of Channel Management with Relativity and Sean Weppner, Managing Director of Operations at Nisos Group.

Our panel discussion will discuss on-premise and off-premise eDiscovery solutions and considerations for each.  It should be a very informative discussion with a very knowledgeable panel!  Hope you can join us!

Click here to register for the conference.  If you’re a non-vendor, you can save $125 by registering before Wednesday for the entire conference or $100 by registering before Wednesday to attend one day.  So, if you plan to attend and haven’t registered yet (why not?), now is the time to do it.

This year, The Master’s Conference still has one more event scheduled for Orlando.  Click here for more information on remaining scheduled events for the year.

So, what do you think?  Are you going to be in Washington DC this Thursday and Friday?  If so, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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.  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 Motions to Compel Against Various Defendants, For Various Reasons: eDiscovery Case Law

In Blosser v. Ashcroft, Inc., et al., No. C17-5243 BHS (W.D. Wash. Sep. 19, 2017), 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.

Case Background

In this case by the plaintiffs against several defendants alleging liability resulting from exposure to asbestos, the plaintiffs filed motions to compel against three defendants in July 2017, with all three defendants responding in August 2017, followed shortly by plaintiffs’ reply to each response.

With regard to defendant Weir, the parties’ dispute stemmed over Weir’s search of its electronic database.  The plaintiffs sought information on “any and all Atwood-Morrill valves on the Kitty Hawk and the Peleliu at any time, as well as any of its valves and replacement parts sent to PSNS in 1976 and 1977 when Mr. Blosser was working there”, but Weir contended that its database is not searchable by ship name or hull number and that doing a manual review would be “incomprehensible.”

With regard to defendant William Powell, the plaintiffs moved for an order (1) striking the boilerplate objections, (2) compelling William Powell to fully produce relevant documents, and (3) produce a 30(b)(6) deponent (the parties ultimately resolved the 30(b)(6) issue, so the Court denied this portion of the motion as moot).  Regarding the request for production, William Powell asserted that “it has no documents responsive to [the Blossers’] requests”, but the plaintiffs submitted deposition testimony from 2009 and asserted that William Powell must have relevant documents because its website “makes clear that it has an available database from which to mine information.”

With regard to defendant Flowserve, the dispute existed over determining a date for the 30(b)(6) deposition as well as the date for Flowserve to produce documents.

Judge’s Ruling

With regard to defendant Weir, Judge Settle observed that “it is unclear whether the parties conferred or attempted to confer to resolve this dispute without Court action”, noting that the plaintiffs’ attorney threatened a motion to compel regardless of Weir’s attempt to comply with the discovery requests (“we would be filing a motion to compel regardless because our document requests were broader than the limitation Weir had unilaterally imposed.”) and citing an email exchange from Weir that included the exact same threat to file a motion to compel without any indication of a good faith attempt to resolve this dispute.  To this, Judge Settle said “This failure alone is sufficient to deny the motion to compel.”

However, briefly addressing the merits of the dispute anyway, Judge Settle indicated that he “agrees with the Blossers that the information it seeks seems relevant and readily identifiable” and noted that “Weir’s response seems rather illusive in that it asserts there is only one possible way to electronically search its database.”  So, Judge Settle denied the motion without prejudice and ordered the parties “to meet and confer on the issue of searching Weir’s database.”

With regard to defendant William Powell, Judge Settle denied the plaintiffs’ motion, stating: “The Court cannot compel a party to produce that which its attorney certifies it does not have in its possession. Stale testimony and speculation based on website advertisements do not overcome an attorney’s certification to the Court.”

With regard to defendant Flowserve, Judge Settle stated that “the Blossers have failed to show that a dispute exists that requires Court intervention”, noting that the plaintiffs’ attorney acknowledged that several dates had been proposed by both sides on the 30(b)(6) deposition and that Flowserve contended that it informed the plaintiffs that it will “make responsive documents available at a mutually agreeable time and location” and that the “invitation remains outstanding.”  So, Judge Settle denied the plaintiffs’ motion without prejudice.

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.  You can cast a vote for the blog here.  Thanks!

So, what do you think?  What should parties be required to do to demonstrate to the court that their opponent has responsive data it’s not producing?  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.

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.

Avoiding Glittering Generalities in Selecting eDiscovery Software – Considering Capability: eDiscovery Best Practices

Editor’s Note: If you read our blog regularly, you know that we frequently reference my friend and CloudNine colleague Rob Robinson’s excellent blog, Complex Discovery for various industry information, including quarterly business confidence surveys, eDiscovery software and service market “mashups” and information about industry mergers and acquisitions (among other things).  We’ve been discussing aspects of on-premise and off-premise eDiscovery offerings quite a bit lately (including this recent webcast conducted by Tom O’Connor and me a few weeks ago) and Rob has written a terrific article on the subject which he has graciously allowed me to publish here.  This is the third part of his multi-part article (parts 1 and 2 here and here) – we will publish it in a series over the next couple of weeks or so.  Enjoy! – Doug

Considering Capability

“Technology is a useful servant but a dangerous master.” Christian Lous Lange

Once the security of a potential solution has been considered, the next reasonable area of examination and evaluation is that of capability. Assessing capability is just determining whether or not a solution can accomplish the necessary tasks required in an eDiscovery effort. While there are not always discernible differences in the capabilities of on-premise and off-premise offerings, there are some characteristics to consider as they may be indicators of the ability of a solution to meet actual needs as opposed to perceived needs. Some of these characteristics include maturity, integration, and automation.

The maturity of an offering is important as it helps inform one on how long an offering has been in the market and if it might or might not contain the latest and most efficient technology to accomplish eDiscovery tasks. However, maturity becomes a factor only when it contributes to the inability of a solution to perform the task for it is being asked to complete. If a mature solution is incapable of completing a task today based on lack of functionality or in the near-term based on discontinued support, then it might not be the most appropriate solution from a purchase protection perspective. On the other hand, if it works today and will be maintained in the future, it seems reasonable that the mature offering should not be excluded as a potential choice solely based on the time it has been available on the market.

When discussing maturity, many eDiscovery professionals often and wrongly categorize maturity as legacy and equate legacy with insufficiency. This generalization may be true in some cases. However, some of the most mature offerings in the marketplace today are still the most effective at accomplishing specific tasks. Given that some of the most mature offerings are on-premise, there may be situations where the most appropriate choice for a particular task might be accomplished with an on-premise solution. It is easy to react to the glittering generality of considering all mature technology as legacy and therefore not as good as newer offerings. However, make sure that judgment on capability is first and foremost on the ability of the offering to complete required tasks and not on the time an offering has been in the marketplace.

Integration of an offering is also an important selection characteristic as it may indicate the potential for time and cost efficiencies lacking in non-integrated solutions. For example, offerings that have internal or external technology integration points for ingestion, processing, and review tasks might be more desirable than non-integrated offerings. However, integration without appropriate capability is not acceptable as one cannot be successful in eDiscovery if one cannot perform required tasks.

Automation in eDiscovery should be considered in the same way integration is considered. If automation is available, then it may be desirable over non-automated solutions based on time and cost savings delivered in task completion. However, automation ceases to be important if the tasks being automated are unable to complete required tasks. An example of this would be the automation of ingestion and processing in an offering. Automation of these tasks may be beneficial for certain data types, but if the data types that need to be processed cannot be processed due to lack of system capability, then the time efficiencies of automation may be negated by the time required for manual processing.

Additionally, not all offerings are created equal in their capability to accomplish tasks on large volumes of data. This volume limitation on an offering’s capability is not one usually found in a provider’s software marketing materials or user’s guides, but it is usually well known by those who have implemented specific solutions that fall short in this capability. In fact, even some of the newer, cloud-based off-premise offerings fall short in this area, so short that they position their offering for best use in small and medium cases sizes.  This type of data volume capability limitation is becoming increasingly important as the challenge of increasing volumes of data is regularly noted as one of the top concerns of eDiscovery professionals.

Quick Takeaway: In examining the capability of an offering, the first focus should be on its ability to accomplish required tasks. If it can complete required tasks, then it is reasonable to consider its maturity, integration, and automation as selection data points for comparison. Integration, especially external integration points with other offerings, should be a key consideration in offering selection as very few eDiscovery platforms can handle all eDiscovery challenges without the use of complementary platforms.

Next week, we will address the last two areas of evaluation, providing a consideration of complexity and cost.

So, what do you think?  What factors do you consider when evaluating and selecting eDiscovery software?  Please share any comments you might have or if you’d like to know more about a particular topic.

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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.