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Electronic Discovery

If You’ve Been Affected by the Recent Storms, CloudNine Wants to Help

Mother Nature has dealt this part of the world a tough couple of weeks.  First, Hurricane Harvey hit the Gulf Coast, causing major damage and flooding in Houston and other areas.  Then, this past weekend, Hurricane Irma has caused major damage in the Caribbean and in Florida and is continuing to wreak havoc to other parts of the country as we speak.

In Houston, our CloudNine family was very fortunate and blessed.  None of our team members experienced any significant damage from Hurricane Harvey.  Our platform continued to be available to our clients throughout the storm and its aftermath and our office remained up and running; though, because there was so much flooding throughout the city and driving was discouraged, most of our team members worked remotely throughout that week.  Despite that, we were business as usual, providing software and services to our clients.

However, most (if not all) of our team members have family members or close friends who were affected – either by suffering damage in their homes and businesses or being evacuated (or both).  Many of us at CloudNine, like many others in the Houston area and elsewhere, have helped to pitch in and help our neighbors recover.

As Craig Ball noted in his recent blog post regarding the disaster in Houston, the loss of property for law firms and other organizations extends to digital devices and media and potential loss of data on that media.  When Hurricane Katrina hit New Orleans years ago, Tom O’Connor coordinated an effort to help firms in that area and others (such as Craig and Rob Robinson) assisted in that effort.  Both Tom and Craig have discussed plans to undertake a similar effort to help those affected this time and I will certainly be happy to help in any way I can, including to help get the word out as more information is known about that effort.

Recovering the data is one challenge (and several organizations are offering to help there), recovering an organization’s IT infrastructure is another.  Many firms will have to replace workstations, servers and networks.  Doing so won’t be cheap and may not happen overnight.  With that in mind, CloudNine is offering to host data for firms and organizations affected by the recent hurricanes for FREE for up to six months to enable those firms and organizations to be able to access that data while they rebuild.  If your organization has been affected by these storms and you need the ability to access your data for a period of time while you rebuild, or to save costs in hosting for a case so that you can apply those savings to rebuilding your infrastructure, CloudNine can help.

To learn more, please contact us at salessupport@cloudnine.com and mention the FREE six month hosting offer.

And, if you’re interested in helping those affected by the hurricanes, here are a couple of resources to do that:

  • Houston Texans football player J.J. Watt has established the Houston Flood Relief Fund for victims of Hurricane Harvey, which is (as of Monday morning) up over $31 million in donations. To donate, click here.
  • Houston Mayor Sylvester Turner has also established the Hurricane Harvey Relief Fund, which accepts donations for flood relief victims. The organization will accept checks, money orders, bank wire transfers, stock, corporate bonds and other marketable securities. For donation instructions, click here.
  • GlobalGiving’s Irma Relief Fund is accepting donations here. It vets the local organizations it helps fund and, according to The New York Times, is well-regarded by charity watchdogs.

Our thoughts and prayers are with all of those affected by the recent storms.

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.

Sometimes, the Data You Receive Isn’t Ready to Rock and Roll: eDiscovery Best Practices

Having just encountered a similar situation with one of my clients, I thought this was a topic worth revisiting.  Just because data is produced to you, it doesn’t mean that data is ready to “rock and roll”.

Here’s a case in point: I once worked with a client that received a multi-part production from the other side (via another party involved in the litigation, per agreement between the parties) that included image files, OCR text files and metadata (yes, the dreaded “load file” production).  The files that my client received were produced over several months to several other parties in the litigation.  The production contained numerous emails, each of which (of course) included an email sent date.  Can you guess which format the email sent date was provided in?  Here are some choices (using today’s date and 1:00 PM as an example):

  • 09/11/2017 13:00:00
  • 9/11/2017 1:00 PM
  • September 11, 2017 1:00 PM
  • Sep-17-2017 1:00 PM
  • 2013/09/11 13:00:00

The answer: all of them.

Because there were several productions to different parties with (apparently) different format agreements, my client didn’t have the option to request the data to be reproduced in a standard format.  Not only that, the name of the produced metadata field wasn’t consistent between productions – in about 15 percent of the documents the producing party named the field email_date_sent, in the rest of them, it was simply named date_sent.

What a mess, right?

If you know how to fix this issue, then – congrats! – you can probably stop reading.  Our client (both then and recently), didn’t know how.  Fortunately, at CloudNine, there are plenty of computer “geeks” to address problems like this (including me).

In the example above, we had to standardize the format of the dates into one standard format in one field.  We used a combination of SQL queries to get the data into one field and string commands and regular expressions to manipulate dates that didn’t fit a standard SQL date format by re-parsing them into a correct date format.  For example, the date 2017/09/11 was reparsed into 09/11/2017.

Getting the dates into a standard format in a single field not only enabled us to load that data successfully into the CloudNine platform, it also enabled us to then identify (in combination with other standard email metadata fields) duplicates in the collection based on those metadata fields.  As a result, we were able to exclude a significant percentage of the emails as duplicates, which wouldn’t have been possible before the data was converted and standardized.

Over the years, I’ve seen many examples where data (either from our side or the other side) needs to be converted.  It happens more than you think.  When that happens, it’s good to work with a solutions provider that has several “geeks” on their team that can provide that service.  Sometimes, having data that’s ready to “rock and roll” takes some work.

So, what do you think?  Have you received productions that needed conversion?  If so, what did you do?  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 DOJ is the Latest to Learn that Redactions Aren’t as Straightforward as You Think: eDiscovery Best Practices

I keep thinking that all attorneys, especially those in large corporations, large law firms and federal agencies, understand best practices associated with performing redactions.  Once again, I find that is evidently not the case.

According to Law360 (DOJ Redaction Flub May Undermine Libor Case, written by Jody Godoy, subscription required), U.S. Department of Justice lawyers made a potentially serious error in a Libor-rigging case against a former Deutsche Bank trader Wednesday when they mistakenly revealed the nature of testimony he was compelled to give to U.K. authorities in a separate probe.

According to the author, the DOJ partially redacted a motion to conceal the content of former Deutsche Bank trader Gavin Black’s testimony before the U.K. Financial Conduct Authority out of concern it could taint the DOJ’s Libor-rigging case against him. But the DOJ lawyers failed to properly excise the sensitive information until Law360 inquired about the faulty redactions last week.

The DOJ has since replaced the document — which was publicly available for more than 12 hours — with a properly redacted version, but the mistake had the potential to undermine their case against Black, especially in light of a July Second Circuit ruling in a similar Libor-rigging case, where they held that testimony compelled in the U.K. cannot be used in U.S. criminal cases and reversed two high-profile convictions. The reversal sent a strong warning to U.S. prosecutors working on cross-border cases.

The day the Second Circuit ruled in that case, Black notified U.S. District Judge Colleen McMahon that he would seek a “Kastigar” hearing in which the government would have to show that its case was developed independently from compelled interviews. The DOJ is fighting the request in large part on the basis that prosecutors on the case have been shielded from the material.  The DOJ asked the judge on Aug. 25 for permission to file a response to Black’s hearing request under partial seal. One reason is that compelled testimony is treated as “confidential” under British law and that the FCA had requested it not be publicly filed.  The attorneys at the DOJ’s criminal division who work separately from prosecutors on Black’s case also expressed concerns that a publicly filed document could expose the trial team or potential witnesses to the material.

Protecting the FCA testimony was crucial to the case against Black, particularly after the Second Circuit’s ruling reversing the convictions of Anthony Allen and Anthony Conti. The court found a witness may have been influenced by reading Allen’s and Conti’s statements, which were compelled under the threat of imprisonment.  The Second Circuit said that fact undermined the case entirely, as the statements were not admissible at trial nor in a grand jury proceeding but had potentially tainted a witness who testified at both.

In the unredacted portions of the brief, the DOJ argued Black is not entitled to a hearing for several reasons. One of them was that the DOJ had taken great pains not to expose its prosecution team to inadmissible material, including asking that the U.K. prosecutors not share any compelled statements with the team as the two countries’ authorities pursued parallel investigations.

In the inadequately redacted portions of the brief, the prosecutors described the content of Black’s interview with the FCA. One sentence was highlighted in black and written in a gray font that was clearly legible. Other portions of the brief were blocked out with what appeared to be black highlighting but were easily read by copying and pasting the contents of the brief into another text document. Word searches of the document returned text that was barely hidden behind the faulty redactions.

A DOJ spokesperson attributed the exposure of the information to “a technical error in the electronic redaction process” that allowed for “manipulation” of the file’s “metadata.”

While I don’t know the specifics, it sounds like the DOJ experienced the first redaction “failure” that I described in this blog post here.  Apparently, it still happens.

So, what do you think?  Are you aware of any other recent redaction “fails” that have become public knowledge?  (other than this one, of course).  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.

Nebraska is the Twenty Eighth State to Adopt Duty of Technology Competence: eDiscovery Trends

One of my favorite legal blogs is the LawSites blog by Bob Ambrogi.  Bob is a prolific blogger who writes several posts a week, not only on his LawSites blog, but also on MediaLaw, and he co-authors Law.com’s Legal Blog Watch, and cohosts the weekly legal-affairs podcast Lawyer2Lawyer.  And, he’s been doing it since 1993 (wow!).  Bob has also been keeping track of states that have adopted a duty of technology competence and he just reported that Nebraska has become the twenty eighth state to do so.

According to Bob, the Nebraska Supreme Courtadopted the amendmenton June 28, 2017.  It amends comment 6 to Nebraska Rule of Professional Conduct § 3-501.1 — the corollary to ABA Model Rule 1.1 on competence — to read as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

The italicized phrase is the same as the language that the ABA recommended in 2012 when it approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

While we’re up to 28 states, so far only two have apparently adopted a technology competence duty rule this year so far (Tennessee was the other state).  This after six states adopted such a rule last year and seven adopted one in 2015.  My rough graphic above has been updated to reflect the current states that have approved – still waiting for my home state of Texas to get with it.  Nonetheless, we are making progress, slowly but surely.  Thanks, Bob, for keeping track!

So, what do you think?  Are you aware of any other states that have adopted a duty of technology competence or working towards adopting one?  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.

Here’s a Chance to Learn What You Need to Do When a Case is First Filed: eDiscovery Best Practices

The first days after a complaint is filed are critical to managing the eDiscovery requirements of the case efficiently and cost-effectively. With a scheduling order required within 120 days of the complaint and a Rule 26(f) “meet and confer” conference required at least 21 days before that, there’s a lot to do and a short time to do it. Where do you begin?

On Wednesday, September 27 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Holy ****, The Case is Filed! What Do I Do Now? (yes, that’s the actual title). In this one-hour webcast, we’ll take a look at the various issues to consider and decisions to be made to help you “get your ducks in a row” and successfully prepare for the Rule 26(f) “meet and confer” conference within the first 100 days after the case is filed. Topics include:

  • What You Should Consider Doing before a Case is Even Filed
  • Scoping the Discovery Effort
  • Identifying Employees Likely to Have Potentially Responsive ESI
  • Mapping Data within the Organization
  • Timing and Execution of the Litigation Hold
  • Handling of Inaccessible Data
  • Guidelines for Interviewing Custodians
  • Managing ESI Collection and Chain of Custody
  • Search Considerations and Preparation
  • Handling and Clawback of Privileged and Confidential Materials
  • Determining Required Format(s) for Production
  • Timing of Discovery Deliverables and Phased Discovery
  • Identifying eDiscovery Liaison and 30(b)(6) Witnesses
  • Available Resources and Checklists

I’ll be presenting the webcast, along with Tom O’Connor, who is now 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?  When a case is filed, do you have your eDiscovery “ducks in a row”?  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.

Court Grants Defendant’s Request for $18.5 Million in Attorney Fees and Costs: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Aug. 17, 2017), 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.

Case Background

In this case regarding an antitrust lawsuit filed by the plaintiff in which the defendant eventually won on summary judgment, the defendant filed a motion for costs and a motion for attorney’s fees and non-taxable costs.  The Court eventually entered an order on the defendant’s bill of taxable costs, awarding it a judgment of $173,480.80 in taxable costs.  After the plaintiff appealed, the Eleventh Circuit Court of Appeals affirmed the Court’s summary judgment ruling.  In doing so, the Eleventh Circuit explained that “at bottom, this is essentially a breach of contract case — and so Procaps’s failure to support an antitrust theory is not all that surprising.”

The defendant then filed, under seal, (after extensive briefing, a multi-hour hearing and motion practice on other legal issues) a Supplemental Motion for Attorney’s Fees and non-taxable costs, explaining that the revised total amount sought is $18,494,846.  In the defendant’s Supplemental Motion, while the defendant noted that it used higher hourly rates for fees incurred in 2016 and 2017 because its hourly rates increased over time, those rates still represented the 47.25% reduction off its primary law firm’s standard rates ordered by the Court.

Both parties agreed that the non-exhaustive list of discretionary factors that are considered when evaluating a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) fee application was found in the case Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So. 2d 966, 971-72 (Fla. 4th DCA 2007), which stated the factors as:

(1) the scope and history of the litigation; (2) the opposing party’s ability to satisfy the award; (3) whether an award would deter others from acting in similar circumstances; (4) the merits of the respective positions, including the degree of [Procaps’] culpability or bad faith; (5) whether the claim brought was not in subjective bad faith but was frivolous, unreasonable, or groundless; (6) whether the defense raised a defense mainly to frustrate or stall; and (7) whether the claim brought was to resolve a significant legal question under FDUTPA law.

Judge’s Ruling

Judge Goodman, in considering the first factor, noted that “Nothing was easy in this case. Nothing. Basically, the parties fought about anything and everything.”  He also observed that “Procaps largely based its FDUTPA claim on its antitrust claim theory and sought both damages and attorney’s fees under this count…It continued to press despite the Court’s warning that it might be liable for all of Patheon’s fees under FDUTPA.”  Judge Goodman, noting that “in December 2015, Patheon explained that Procaps’ market value was $238.9 million”, also ruled that the plaintiff “does have the ability to pay an $18.5 million judgment.”

Considering the plaintiff’s culpability or bad faith, Judge Goodman spent a lot of time on this issue, including time discussing alleged prior misconduct by the plaintiff’s lead counsel in another case.  While he stated that “the Court is not going to consider the Surgery Centers case and similarly will not specifically consider the 16 bad faith factors (from this case) and the alleged appellate-level misconduct asserted by Patheon”, he also stated that the “facts underlying the 16 bad faith factors are, for the most part, true or substantially true (sic). They happened. The Court knows that they happened (or substantially happened) because of its involvement in this case for the past four-and-a-half years.”

Ultimately, Judge Goodman determined that all the factors necessary to grant the fee request were present and stated that “the Court notes that even Procaps admits that the antitrust theory inherent in its FDUTPA claim was dependent on the success it had with the federal Sherman Act antitrust claim. Therefore, those federal claims concerned allegations of deceptive and unfair trade practices, which means that Patheon, as the prevailing party, is entitled to fees and costs for the entire action.”  As a result, Judge Goodman, determining that the defendant’s method for calculating the fees was proper, 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 three other times previously – here are the three links to those previous rulings.

So, what do you think?  Is that a reasonable award, given all of the plaintiff’s alleged misconduct over the course of the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

Nominate Your Favorite Legal Blog at The Expert Institute: eDiscovery Trends

Do you have a favorite eDiscovery blog?  Or a favorite general legal blog?  If you do, here’s a chance to see it recognized as one of the best.

For the third year in a row, The Expert Institute is conducting its Best Legal Blog Contest.

From now until September 15th, legal blog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of the competition by completing the form via the “Nominate a Blog” link on their site here. You’ll be expected to provide your name and email address, the name and URL of the blog and you can provide an optional description as to why the blog deserves to be nominated.  As with previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

Once the contestants have been selected through the nomination process, the selected legal blogs will go head-to-head across nine different categories ranging from legal tech to criminal law. The blogs that receive the most votes will win a place in their Best Legal Blogs Hall of Fame (you can view the 2015 and 2016 winners here), while the three blogs that receive the most overall votes across all categories will win one of their three prizes.

The nomination period closes on September 15th at 12:00am (EDT), after which the nominations will be tallied and the contestants announced.

There are several excellent eDiscovery blogs out there and it would be great to see some of them make it through the nomination stage and at least one or two receive enough votes to be recognized as a top legal blog in legal tech.  So, if there’s one you like, feel free to nominate it!  Even if it’s eDiscovery Daily… :o)

Also, if you’ve been watching the news the past few days, you’ve seen the devastation in my hometown of Houston from Hurricane Harvey.  What can you do to help?  Consider donating online to the Houston Food Bank, Galveston County Food Bank or Corpus Christi Food Bank.  Or the Coastal Bend Disaster Recovery Group.  And, if you’re in the Houston area, you can volunteer at the American Red Cross here or by calling 713-526-8300.  Thanks for your help.

So, what do you think?  Do you have a favorite legal blog?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be back after the Labor Day holiday with a new post on Tuesday, September 5.

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.

Ten Items to Keep in Mind When Considering Cloud Providers: Cybersecurity Best Practices

In my webcast discussion with Tom O’Connor yesterday, we had a terrific discussion of several pros and cons of both on-premise and off-premise (cloud) eDiscovery technology solutions as well as other factors to consider.  If you missed the webcast, you can check it out here.

While we talked about advantages of each approach, we also discussed how your overall eDiscovery solution could include both on-premises and cloud-based tools and mechanisms for a “best of breed” approach to meeting your eDiscovery needs.

But, if you’re considering a cloud solution, how do you know whether the solution(s) you’re considering have the security mechanisms your organization needs?

Earlier this week, Rocket Matter published an interesting post (written by Larry Port) that discussed vetting your cloud providers that might provide some insight.  While the article provided a link to the security standards developed by the Legal Cloud Computing Association (LCCA), it also provided a succinct list of ten items to address with your cloud provider to ensure that the provider can meet your needs.  Here they are:

  • You should own your data. The cloud provider should not own it.
  • You should be able to get your data out of a cloud system at any time in a usable format.
  • Encryption should be used to safeguard client information.
  • The cloud provider should be able to spell out their backup policies.
  • You need to determine who at the cloud provider has access to see your data and under what circumstances. You must be comfortable with the answer.
  • Find out if the company has had a breach before. If so, how did they respond to it?
  • What measures does the cloud company take to ensure cybersecurity on an operational level? In other words, aside from the application you’re spending money on, is the organization itself safe? Do they conduct background checks on employees? How do they manage passwords internally?
  • Does the application limit attempts to log in to prevent brute force and dictionary attacks?
  • Can you use two-factor authentication?
  • How does the company handle data destruction? It is important when you leave a service that copies of your data are not lying around.

This is a terrific list of guidelines to keep in mind when considering cloud providers and it’s a good idea to get an understanding of how they would address each of these areas.

Also, if you’ve been watching the news the past few days, you’ve seen the devastation in my hometown of Houston from Hurricane Harvey.  What can you do to help?  Consider donating online to the Houston Food Bank, Galveston County Food Bank or Corpus Christi Food Bank.  Or the Coastal Bend Disaster Recovery Group.  And, if you’re in the Houston area, you can volunteer at the American Red Cross here or by calling 713-526-8300.  Thanks for your help.

So, what do you think?  How do you evaluate cloud providers?  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.

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.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the 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 (for the first time) Tom O’Connor, who is now 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.

Also, if you’ve been watching the news the past few days, you’ve seen the devastation in my hometown of Houston from Hurricane Harvey.  What can you do to help?  Consider donating online to the Houston Food Bank, Galveston County Food Bank or Corpus Christi Food Bank.  Or the Coastal Bend Disaster Recovery Group.  And, if you’re in the Houston area, you can volunteer at the American Red Cross here or by calling 713-526-8300.  Thanks for your help.

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.

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.

Defendant’s Request for Social Media Data is Reasonably Calculated to Be Overbroad: eDiscovery Case Law

In Ehrenberg v. State Farm Mut. Auto. Ins. Co., No. 16-17269 (E.D. La. Aug. 18, 2017), 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”.

Case Background

In this case where the plaintiff sued the defendant for additional damages to compensate her for all of her injuries and losses sustained when she was struck by a motor vehicle, after learning of numerous vacations taken by the plaintiff, the defendant requested complete social media data (“a complete copy of your post-accident…data link from your…account, including but not limited to messages, photos, wall posts, friends posts, your posts, metadata associated with photos, etc.) from the plaintiff’s Facebook, Twitter and Instagram accounts.  The defendant filed a Motion to Compel when the plaintiff objected to the requests as “invasion of privacy and not relevant”.

Judge’s Ruling

Judge van Meerveld began her analysis by pointing out the defendant’s request was not in line with current rules:

“Although State Farm focuses its briefing on whether its requests are ‘reasonably calculated to lead to the discovery of admissible evidence,’ the Court must point out that this phrase does not guide the scope of discovery. The amendments to the Federal Rules of Civil Procedure that went into effect in December 2015 deleted this language from Rule 26. That Rule now provides that ‘parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.’” 

Judge van Meerveld also noted that “In addition to being relevant, discovery must be proportional to the needs of the case.”  With that in mind, she ruled that “after weighing relevance and proportionality, including privacy considerations, as to Ms. Ehrenberg’s Facebook, Twitter, and Instagram accounts, the Court finds discoverable the following categories of information from the date of the alleged accident through the present:

  1. Posts or photos that refer or relate to the accident.
  2. Posts or photos that refer or relate to physical injuries that Ms. Ehrenberg alleges she sustained as a result of the accident and any treatment she received therefore.
  3. Posts or photos that refer or relate to other, unrelated physical injuries suffered or sustained by Ms. Ehrenberg.
  4. Posts or photos reflecting physical activity by Ms. Ehrenberg and/or which reflect a physical capability of Ms. Ehrenberg.
  5. Posts or photos that refer or relate to emotional distress or mental anguish that Ms. Ehrenberg alleges she sustained as a result of the accident and any treatment she received therefore.
  6. Posts or photos that refer or relate to any alternative potential emotional stressors experienced by Ms. Ehrenberg.
  7. Posts or photos that refer or relate to any vacations taken by Ms. Ehrenberg, including but not limited to the specific vacations referred to by State Farm in its Motion to Compel.”

Judge van Meerveld also stated that if the defendant were to discover evidence that the plaintiff had deleted social media posts (which the defendant had suggested happened), then “it may return to the Court to request relief.”

So, what do you think?  What should courts do (if anything) to make sure parties know the current Rules?  Please share any comments you might have or if you’d like to know more about a particular topic.

If you’ve been watching the news the past few days, you’ve seen the devastation in my hometown of Houston from Hurricane Harvey.  What can you do to help?  Consider donating online to the Houston Food Bank, Galveston County Food Bank or Corpus Christi Food Bank.  Or the Coastal Bend Disaster Recovery Group.  And, if you’re in the Houston area, you can volunteer at the American Red Cross here or by calling 713-526-8300.  Thanks for your help.

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.