Close
Enter your
text here

Electronic Discovery

Court Approves Defendant’s Proposed Random Sampling Production Plan: eDiscovery Case Law

In Duffy v. Lawrence Memorial Hospital, No. 14-2256 (D. Kansas, Mar. 31, 2017), Kansas Magistrate Judge Teresa J. James granted the Motion to Modify Discovery Order from the defendant (and counterclaimant), where it asked the Court to enter a protective order directing it to produce a random sampling of 252 patient records, along with five spares, in order to respond to the plaintiff/relator’s document requests.

Case Background

In this case, the plaintiff alleged that the defendant submitted false information to the government to maximize reimbursement for federal medical care programs; in turn, the defendant counterclaimed for breach of contract and fraud.  In a February 2017 order, the Court ordered the defendant to produce documents responsive to certain plaintiff requests in her Second Request for Production of Documents within 14 days.  Defendant produced the most of the requested documents, except for those associated with four requests that were the subject of an instant motion.

As the defendant conducted searches for documents responsive to these requests, it determined that 15,574 unique patient records would have to be located and gathered.  In an effort to calculate the time necessary to locate and produce the relevant patient records, the defendant’s Medical Records department obtained a sample of ten patient records and determined that it would take 30 minutes per record to process and review the records to respond to the four RFP requests.  As a result, the defendant estimated that it would take 7,787 worker hours to locate and produce responsive information for 15,574 patient records, at a cost of $196,933.23.  Redaction of patients’ personal confidential information would take another ten reviewers and one quality control attorney fourteen days at a cost of $37,259.50.  So, the total cost to produce information relevant to the RFPs was estimated to be over $230,000.

Given these costs, the defendant asked the Court to modify its order by limiting the required production to a random sampling of 252 patient records plus five spares, using a statistical tool known at RAT-STATS used by the Department of Health and Human Services Office of Inspector General to randomly select the patient records.  The plaintiff objected, claiming that the defendant did not attempt to meet and confer and also because the Court had already rejected the defendant’s previous contention of undue burden.  The plaintiff also argued that redaction was unnecessary because a protective order was in place to designate the patient info as confidential information.

Judge’s Ruling

With regard to the previous rejection of undue burden, Judge James stated: “Had Defendant presented such evidence in response to Plaintiff’s Motion to Compel, the Court may have found the requests at issue unduly burdensome and disproportional to the needs of the case. Contrary to Plaintiff’s assertion, Defendant did not waive its right to seek protection once the enormity of the task became apparent.”  As for the plaintiff’s objection that the defendant did not meet and confer beforehand, Judge James noted that the “parties conferred following Defendant’s objections to the discovery requests, and that was the point at which some meeting of the minds could have produced a different response by Defendant or an alteration of the discovery request by Plaintiff. At this point, however, Defendant is seeking relief from this Court’s order rather than from a party’s discovery request.”

As a result, Judge James stated: “The Court will modify its order (ECF No. 133) to direct Defendant to utilize RAT-STATS and produce a random sampling of 252 patient records, along with five spares, to respond to RFP Nos. 40, 41, 43 and 58.”  She also directed the defendant to use RAT-STATS (as requested) to randomly select the patient records to be produced and sided with the defendant to redact personal confidential information from the patient records that “Defendant has a legal duty to safeguard.”

So, what do you think?  Is random sampling an appropriate option for cases where production of a larger set may be an undue burden?  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.

Do We Have a Confidence “Spring” in Our Step in 2017?: eDiscovery Trends

The results are in from the Complex Discovery Spring 2017 eDiscovery Business Confidence Survey, which has just concluded and (as was the case for the 2016 Winter, Spring, Summer and Fall surveys and the 2017 Winter survey) 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.  So, to avoid redundancy, 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 Spring 2016 survey.

The Spring 2017 Survey response period was initiated on April 17, and continued until registration of 100 responses on May 3 (this survey was capped at 104). 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 surveySo, in the future, if you want your voice heard, respond early!

Percentage of Provider Respondents Continuing to Rise: Of the types of respondents, 58.6% were either Software and/or Services Provider (44.2%) or Consultancy (14.4%) for over half of respondents as some sort of outsourced provider (over half of total respondents – 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 30.8%.  Corporate responders were a distant fourth with 4.8% of respondents; no other type of respondents was over 3%.  Here’s a graphical representation of the trend over the past four quarters:

When comparing this year’s Winter survey to last year’s survey, it is clear that (despite the continued trend toward a rise in percentage of provider respondents), the survey is (barely) still more diverse than it was a year ago, especially with regard to the percentage of law firm respondents:

Just Over Half of Respondents Consider Business to Be Good: Over half (52.9%, to be exact) of respondents rated the current general business conditions for eDiscovery in their segment to be good, with only 6.7% rating business conditions as bad.  Last quarter, those numbers were 49% and 9% respectively, so this quarter reflects more bullish than last quarter, continuing the trend of up and down quarter over quarter.  Will the summer mean another downturn?  We’ll see.  Here is the trend for the last four quarterly surveys:

When comparing against last year’s Winter survey, respondents this Spring aren’t as bullish as they were a year ago (over 60% rated the current general business conditions for eDiscovery in their segment to be good in 2016).  Of course, the survey was smaller and more provider-centric back then (for what it’s worth):

Almost Everyone Still Expects eDiscovery Business Conditions to be as Good or Better Six Months From Now: Almost all respondents (96.2%) expect business conditions will be in their segment to be the same or better six months from now (well above last quarter’s 86%), and the percentage expecting business to be better jumped back up to 47.1%.  Revenue (at combined 93.3% for the same or better) and profit (combined 93.3%) also rose from last quarter (for the first time ever, half of respondents expect higher profits in six months).  Here is the profits trend for the last four quarterly surveys:

When compared against last year’s Winter survey, the distribution for profits six months from now was way more bullish with a 10.5% increase of respondents expecting higher profits and a 2.5% decrease of respondents expecting lower profits:

Increasing Volumes of Data is Still Most Impactful to eDiscovery Business: Increasing Volumes of Data was the top impactful factor to the business of eDiscovery over the next six months at 25%, with Budgetary Constraints next up at 21.2%.  Lack of Personnel was close behind in third with 20.2%, followed by Data Security (16.3%), Increasing Types of Data (10.6%) and Inadequate Technology (at 6.7%) bringing up the rear.  The graph below illustrates the distribution across the most recent four quarterly surveys.

A year ago, Budgetary Constraints was voted as the most impactful to eDiscovery business, but ever since then, Increasing Volumes of Data has been first or tied for first, so it’s a clear consistent impact on eDiscovery business these days:

Executive Leader Respondents Moving Back Up: Last time, the three groups of respondents were fairly balanced.  This time, Executive Leadership respondents rose again (to 44.2%) and was the clear leader, with Operational Management and Tactical Execution splitting the remaining respondents (at 27.9% each).  Here’s the breakdown of the last four quarters:

Nonetheless, the survey is certainly more distributed than last year, where Executive Leadership was a majority of the responses.  It will be interesting to see what the distribution is in the Summer survey.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check it out.

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.

Corporate Counsel Best of 2017 Survey Results: eDiscovery Trends

Last year, we covered the inaugural Best of Corporate Counsel Survey of the top providers to the in-house corporate legal marketplace in July.  This year, Corporate Counsel apparently decided to move it up a bit as, on Monday, it released its Corporate Counsel Best of 2017 results, which (once again) include rankings in a few litigation support and eDiscovery categories.

As they note in their introductory letter, Corporate Counsel Best of 2017 highlights the businesses and individuals who garnered the most votes from members of the in-house legal community.  Voting was conducted via online ballot and limited to those working within in-house corporate legal and compliance departments.  Once again, the ballot consisted of 55 categories and over 1,500 votes were cast.

The survey results start here and span eighteen(!) pages with advertisements interspersed throughout.  Here are the results of some of the notable eDiscovery categories:

END-TO-END LITIGATION CONSULTING FIRM

  1. RVM
  2. CloudNine Discovery
  3. Elite Document Technology

END-TO-END E-DISCOVERY PROVIDER

  1. Elite Document Technology
  2. RVM
  3. CloudNine Discovery

TECHNOLOGY ASSISTED REVIEW E-DISCOVERY SOLUTION

  1. RVM
  2. Elite Document Technology
  3. CloudNine Discovery

DATA & TECHNOLOGY MANAGEMENT E-DISCOVERY PROVIDER

  1. RVM
  2. Elite Document Technology
  3. CloudNine Discovery

DATA RECOVERY SOLUTION PROVIDER

  1. RVM
  2. Ernst & Young, LLP AND Kroll Ontrack
  3. BDO Consulting

LEGAL HOLD SOLUTION

  1. Legal Hold Pro by Zapproved
  2. Exterro Legal Services
  3. Relativity Legal Hold

MANAGED DOCUMENT REVIEW

  1. Elite Document Technology
  2. RVM
  3. Ernst & Young LLP

MANAGED E-DISCOVERY & LITIGATION SUPPORT SERVICE PROVIDER

  1. RVM AND Elite Document Technology
  2. CloudNine Discovery
  3. BDO Consulting

ONLINE REVIEW PLATFORM

  1. Elite Document Technology
  2. Relativity by kCura
  3. CloudNine Discovery

E-DISCOVERY MOBILE APP

  1. Exterro
  2. CasePoint for iPad
  3. APPlied Mobile (LexisNexis Applied Discovery)

LEGAL PROCESS OUTSOURCING

  1. Elevate
  2. Epiq
  3. Discover Ready

INFORMATION GOVERNANCE SOLUTION

  1. RVM
  2. PwC
  3. CloudNine Discovery

PREDICTIVE CODING E-DISCOVERY SOLUTION

  1. Elite Document Technology
  2. Druva
  3. FTI Consulting

LEGAL/LITIGATION SUPPORT STAFFING AGENCY

  1. Robert Half Legal
  2. DTI
  3. Special Counsel

So, what do you think?  Do you agree with the selections or do you have a different favorite provider in any of these categories?  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.

SCOTUS Reverses and Remands Circuit Court Award of Fees for Discovery Misconduct: eDiscovery Case Law

In Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___ (2017), the Supreme Court of the United States, in a decision delivered by Justice Kagan reversed and remanded the decision by the US Court of Appeals, Ninth Circuit, for further proceedings, stating that “because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.”

Case Background

In this product liability case, the plaintiffs sued the defendant after their motorhome swerved off the road and flipped over, alleging the accident was caused by the failure of their Goodyear tire.  During discovery, the plaintiffs repeatedly asked the defendant to turn over internal test results related to the tire at issue, but “the company’s responses were both slow in coming and unrevealing in content.”  The parties eventually settled on the eve of trial, then, several months later, the plaintiffs’ counsel learned from a newspaper article that, in another lawsuit involving the tire at issue, it “got unusually hot” at certain speeds.  The defendant conceded withholding the information from the plaintiffs even though they had frequently requested “all testing data” related to the tire.  The plaintiffs sought sanctions for discovery fraud, in the form of payment of their “attorney’s fees and costs expended in the litigation.”

The District Court agreed to make such an award in the exercise of its inherent power to sanction litigation misconduct, and justified its authority to award a greater amount than the expenses caused by the offending behavior because the defendant’s “sanctionable conduct r[ose] to a truly egregious level.”  Ultimately, the court awarded $2.7 million to account for Plaintiffs’ legal costs “since the moment, early in the litigation, when Goodyear made its first dishonest discovery response.”  Acknowledging that the Ninth Circuit might require a link between the misconduct and the harm caused, however, the court also made a contingent award of $2 million. That smaller amount, designed to take effect if the Ninth Circuit reversed the larger award, deducted $700,000 in fees the plaintiffs incurred in developing claims against other defendants and proving their own medical damages. The Ninth Circuit affirmed the full $2.7 million award, concluding that the District Court had properly awarded the plaintiffs all the fees they incurred during the time when the defendant was acting in bad faith.

Court’s Ruling

The court noted that “Federal courts possess certain inherent powers, including ‘the ability to fashion an appropriate sanction for conduct which abuses the judicial process.’…One permissible sanction is an assessment of attorney’s fees against a party that acts in bad faith. Such a sanction must be compensatory, rather than punitive, when imposed pursuant to civil procedures.”  In this case, “[n]either court used the correct legal standard. The District Court specifically disclaimed the need for a causal link on the ground that this was a ‘truly egregious’ case…And the Ninth Circuit found that the trial court could grant all attorney’s fees incurred ‘during the time when [Goodyear was] acting in bad faith,’…—a temporal, not causal, limitation. A sanctioning court must determine which fees were incurred because of, and solely because of, the misconduct at issue, and no such finding lies behind the $2.7 million award made and affirmed below.”

In reversing and remanding the decision, the Court stated: “Although the District Court considered causation in arriving at its back-up award of $2 million, it is unclear whether its understanding of that requirement corresponds to the appropriate standard—an uncertainty pointing toward throwing out the fee award and instructing the trial court to consider the matter anew. However, the Haegers contend that Goodyear has waived any ability to challenge the contingent award since the $2 million sum reflects Goodyear’s own submission that only about $700,000 of the fees sought would have been incurred regardless of the company’s behavior. The Court of Appeals did not address that issue, and this Court declines to decide it in the first instance. The possibility of waiver should therefore be the initial order of business on remand.”

So, what do you think?  Should egregious behavior be subject to an award greater than the expenses incurred by the party affected by that behavior?  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.

Everything You Need to Know about Buying eDiscovery (eDisclosure) Systems: eDiscovery Trends

If you ever wanted to know how many providers there are in the eDiscovery (eDisclosure) space, what services they provide and where they fit in the EDRM model, this is as comprehensive a guide as you can find.

Authored by litigation support and “eDisclosure” (that’s what they call eDiscovery across the pond) expert Andrew Haslam, the eDisclosure Systems Buyers Guide – 2017 Edition provides an overview of key technology considerations, industry approaches and vendor capabilities regarding eDisclosure.  Covering topics from the EDRM Model to vendor service and software analysis, the guide provides a complete and credible resource for legal and IT professionals seeking to understand and apply eDisclosure concepts, processes, techniques, and tools.

The target audience for the Guide are those individuals who understand they have a requirement, but don’t know how to proceed with the next steps. It is assumed that people within organizations that have a litigation support function, will turn to them in the first instance for advice, but might use this document as a primer on what’s available.

The Guide is based on Andrew Haslam’s general experience in the marketplace, also drawing from a number of vendor procurement exercises. The information on firms and software tools has been provided by the organizations themselves, albeit moderated by the author.

The Guide is an impressive 436 page PDF guide, yet is easy to navigate, with a detailed (and linked) table of contents that provides an Executive Summary, Guide Structure, a breakdown of each of the EDRM phases, a description of technology areas, a market survey, a proposed procurement approach in selecting vendors, additional resources and a comprehensive list of service “suppliers” and software providers (101 in all) which comprises the majority of the guide.  If you provide both services and software, you’re listed in both sections.  So, for example, CloudNine (shamless plug warning!) is listed on both page 116 of the PDF (104 of the document) in the services section and 280 of the PDF (268 of the document) in the software section.  Andrew even mentions our blog in the first section!  Thanks, Andrew!

In all seriousness, though, Andrew’s bios for each provider are very comprehensive and many are more than one page.  So, the Guide is more than just a cursory listing of providers, it’s a detailed listing that includes a detailed description of their services, providing the buyer with a terrific head start in understanding what each company does and whether their services and/or software might meet their needs.

Andrew is currently employed as the UK eDisclosure Project Manager for Squire Patton Boggs, so he makes sure to note that all opinion within the Guide is Andrew’s personal viewpoint and does not represent any views, opinions or strategies of Squire Patton Boggs.

So, what do you think?  Are you in the market for an eDiscovery (eDisclosure) provider or solution?  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.

Wife’s Fitbit Leads to Murder Arrest for the Husband: eDiscovery Trends

At both the Master’s Conference session that I moderated in San Francisco on Tuesday and the webcast that I conducted yesterday, the topic of discovery from IoT (Internet of Things) devices came up.  This story illustrates how discovery from IoT devices is becoming more and more important, especially in criminal cases.

According to an article in Business Insider, data from a murdered woman’s Fitbit led Connecticut police to arrest her husband in connection with the death.  After more than a year of investigations, the Hartford police charged Richard Dabate with his wife’s murder, tampering with physical evidence, and making false statements to the police after her Fitbit showed she was still walking around an hour after he claimed she was murdered by an intruder.

In December 2015, Connie Dabate was shot in her home with a .357 Magnum that her husband, Richard, had bought a few months before.  Dabate stated that, after getting a house alarm notification on his phone, he got back around 9 a.m. when he spotted an intruder, he said: a 6’2” man with a stocky build wearing a “camouflaged suit with a mask.”  Dabate said that, at about that time, he heard his wife come home and yelled for her to run, but the intruder shot her to death after a short struggle.  Dabate also said that the intruder tied him to a chair and began burning him with a torch, but he struggled with the intruder, eventually getting the torch from the intruder and causing him to flee.

Cops brought in K-9’s to pick up the scent of an intruder, but they could only pick up Dabate’s scent.  With no other evidence regarding an intruder, cops eventually obtained search warrants for Connie Dabate’s Fitbit, both of their cell phones, computers and house alarm logs.

According to an article in CNN, this timeline of activities conflicted with the story that Dabate told the police:

  • At 9:01 a.m. Richard Dabate logged into Outlook from an IP address assigned to the internet at the house.
  • At 9:04 a.m., Dabate sent his supervisor an e-mail saying an alarm had gone off at his house and he’s got to go back and check on it.
  • Connie’s Fitbit registered movement at 9:23 a.m., the same time the garage door opened into the kitchen.
  • Connie Dabate was active on Facebook between 9:40 and 9:46 a.m., posting videos to her page with her iPhone. She was utilizing the IP address at their house.
  • While she was at home, her Fitbit recorded a distance of 1,217 feet between 9:18 a.m. and 10:05 a.m. when movement stops. If Richard Dabate’s claims were correct, detectives say the total distance it would take the victim to walk from her vehicle to the basement, where she died, would be no more than 125 feet.

Dabate later admitted to having an extramarital affair where he impregnated a woman.  Oh, and five days after the incident, Dabate also attempted to make a claim for his wife’s life insurance policy for $475,000, police said.  He is due to appear in court today.

It seems IoT devices are becoming more and more important to criminal investigations.  It seems like only a matter of time before that becomes the case for civil litigations as well.

So, what do you think?  Have you been involved in any cases where data from IoT devices was at issue?  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 How to Fix “Pitfalls” and “Potholes” in Your eDiscovery Project: eDiscovery Best Practices

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Pitfalls and Potholes to Avoid in Your eDiscovery Projects.  This one hour webcast will discuss some of the most common “pitfalls” and “potholes” that you can encounter during the discovery life cycle from Information Governance to Production and how to address them to keep your discovery project on track.

I’ll be presenting the webcast with Karen DeSouza, Director of Review Services at CloudNine and we will discuss twenty(!) different “pitfalls” and “potholes” that you can avoid to keep your project on track.  Examples of issues being discussed include:

  • Avoiding the Mistake in Assuming that Discovery Begins When the Case is Filed
  • How to Proactively Address Inadvertent Privilege Productions
  • Up Front Planning to Reduce Review Costs
  • How to Avoid Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Ways to Avoid Potential Data Breaches
  • How to Avoid Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Techniques to Increase Review Efficiency and Effectiveness
  • Checklist of Items to Ensure a Smooth and Accurate Production

If you’ve ever managed a discovery project for litigation, investigations or audits, you know that “Murphy’s Law” dictates that a number of “pitfalls” and “potholes” can (and will) occur that can derail your project. These issues can add considerable cost to your discovery effort through unexpected rework and also cause you to miss important deadlines or even incur the wrath of a judge for not following accepted rules and principles for discovery.

To register for the webcast, click here.  You may thank us later. :o)  Hope you can attend!

So, what do you think?  Have you encountered “pitfalls” or “potholes” in your discovery projects?  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.

Interview with Robert Childress, CEO of The Master’s Conference: eDiscovery Trends

As I mentioned earlier this month, The Master’s Conference is kicking off its 11th year with an event in San Francisco today.  As part of our commitment to eDiscovery education, I’m delighted to be participating in the series again this year.  In preparation for today’s kickoff event, I interviewed Robert Childress, CEO of The Master’s Conference to understand how the event came to be and what makes it unique compared to other conferences within the eDiscovery schedule.

By the way, today’s event will be held at Bently Reserve, 301 Battery St, San Francisco, CA 94111.  Registration begins at 8am, with sessions starting right after that, at 8:30am.  Click here to register for the conference.  CloudNine will be sponsoring the session Data, Discovery, and Decisions: Extending Discovery From Collection To Creation at 1:45pm.  I will be moderating a panel that includes Gordon J. Calhoun, Partner with Lewis Brisbois Bisgaard & Smith LLP, Jamie Raba, Attorney with Seyfarth Shaw LLP and Julia Romero Peter, General Counsel and Vice President of Sales with CloudNine.

Robert has continued to impact the many lives, companies and your day to day roles within the legal industry. If you are part of diversity groups, use legal research or products for processing and review, Robert has had a role. Mr. Childress is a visionary that focuses on bettering the legal community in all aspects. Robert has been recognized as one of the 25 most influential people in the legal industry. From the cover of magazines, news organizations and articles he has been a force in improving our industry. Over 25 years, he has held executive positions with some key legal corporations including Lexis-Nexis 5a Security, Thomson & Thomson, Elsevier Science, McGrawHill, Shepards, Wave Software and founder of The Masters Conference. Early in his career at LexisNexis, Robert managed product design, software sales for lexis.com. During his tenure, Robert has been awarded numerous contracts from clients such as the FBI, CIA, White House, Homeland Security, McDonald’s, Google, Littler and Walmart which have bolstered many company’s already elite portfolio of customers. Among his many achievements, Robert is the founder of the Masters Conference and the co-founder of a charity golf events, networking groups and associations for lawyers. Robert has been featured many times over the years within National Register Who’s Who, LTN Florida IT, Chicago Lawyer Legal Technology, BNA, INC. ARMA, EDRM Quarterly, ACEDS, and LTPI.  He is now part of the board of ACEDS, advisory panel of LTPI and serves on advisory roles within in many associations.

Tell me about your career before The Master’s Conference.  Why did you decide to launch the Conference?

I love this question, Doug, because I don’t think I lot of people are aware of my background.  In 1992, I was graduating high school, and I found this company in Colorado Springs called Shepards McGraw-Hill that was offering to pay for 80% of my college tuition.  So, I started working on “ending pages” from 6 am in the morning until noon and then went to school.  “Ending pages” was the process of going through a physical book of cases, case by case, and putting a check mark on the left or right side of the page just to tell where the case ended.  So, when we created the CD-Roms, they knew where to stop.

After a while, I started moving up in the company, and after I had got married, they offered me a great job in Washington DC after Lexis bought Shepard’s where I was the Lexis Nexis rep at age 25.  I was the youngest salesperson at Lexis (out of over 200 sales people), and I had this prime spot with the White House and FBI, among other clients.  I left Lexis in 2001 after working with Jeb Bush’s office at the time as the government rep for Lexis (I dealt with all of the governor’s offices in the southeast).  I noticed a CD in his office with a bill attached for $30,000, and I asked what it was for.  The secretary in the office said, “we had a guy collect data from a hard drive for us” (keep in mind, the term “eDiscovery” didn’t exist back then).  Because I was (and still am) a computer nerd, I knew how much per-megabyte costs were back then.  Not per gigabyte, per megabyte – a gigabyte was a lot of data back then.  I thought “holy crap, $30,000 is a lot to pay to pull around 600 or 700 MB of information!”

So, I started working with a friend who was a forensics expert, and we would make around $100,000 for three days’ worth of work.  We would collect and process hard drives and give the data to Holland and Knight law firm and others.  I decided to start a service bureau.  I went from a cushy job at Lexis with all of the perks, travel benefits, and so forth to working Sunday mornings at two in the morning preparing trial boards and exhibits and performing forensics for clients.  After four years of that, I realized that I was miserable – it was crazy money, but I never stopped working.

Having used LAW, Ipro and Discovery Cracker back then in 2005, I found an investor for a concept I had which became the company Wave Software with a software product called Trident.  Unless you had a lot of money to advertise with LegalTech and ALM, it was tough to get a product launched successfully.  So, I decided that I would create a users’ group that wasn’t around Wave Software, but would be separate.  In other words, I would create my conference, and I would get people to sponsor it, to pay for it.  That was called The Master’s Conference.

Lexis had this triangle approach to sales: product, education, and community.  You understand the education piece because CloudNine provides a lot of education.  With Wave and Master’s, I thought we need to have a membership group and realized that about 60% of the industry comprised of women, so I created Women in eDiscovery (WiE) with my wife, who recruited numerous high profile women in the industry and now it’s a huge group.  Now, I had that triangle approach.  That was my big impact on the space – those three things.

I left Wave Software in 2012 and WiE became non-profit, and The Master’s Conference became my primary focus.

How does your approach to The Master’s Conference differ from other conferences?

Now that I own a conference, it’s unusual because I have 21 years’ experience in legal research, forensic collections, and software development.  What’s different about Master’s is that I don’t run events, I enjoy events.  I enjoy the community and the dialogue.  I wish I had more money and resources to do what I enjoy.  When I engaged the other conferences during my time at Wave, it became very apparent that individuals who hosted events hadn’t been in the trenches.  They’ve never been doing client work at 2 am on a Sunday. They’ve never had experiences like that.  I think that’s my value.  While on the surface, Master’s may look like just another conference, but I know how to plug my provider participants into different clients and how you fit within those clients.  I understand that.

I don’t mean this as a “shot across the bow,” but more of clarification.  There are very few conferences that don’t have some agenda.  They’re either owned by a magazine or by a group that doesn’t focus on client relationships as I do.  They just happen to have an equitable division.  I used to sit on the board of LegalTech for about three years.  Some groups have a magazine and have had to publish for a long time and can’t get away from doing events because it’s so much revenue compared to their publishing piece, which has dwindled as everything has moved online.  So, they try to squeeze as much money as they can out of the events.  If you want a booth, great, that’s six grand, you want the floor sponsor, that’s six grand, and so forth.

There’s another group, which is the “click” group.  It’s the “good ole boy network.”  It’s the same usual suspects we saw eight years ago in one group, and you start to see factions start to happen.  We’ve seen it over the past couple of years where one speaker won’t be on the same panel as another speaker – even though they are both brilliant people, they just don’t like each other’s opinions.  But, if you research it, you find that both of them have a significant stake in what their respective organizations are doing so that influences their positions.

My focus is Diversity.  One, I’m not owned by any magazine, nobody can tell me what I can or can’t do.  Two, I listen to the clients and can “move on a dime” in meeting their needs.  For example, you and I are working on some stuff related to the webinars that you’re doing for CloudNine, and I can have that done and just say “let’s do it.”  I don’t have to get approval.  The third thing is when I speak about “diversity,” I’m not just talking about men, women or ethnicity; I’m talking about knowledge.

I’ll give you an example.  We had a prep call today for the San Francisco event, which has the theme of Minority Report. The discussion was on predictive analytics with a group that might not be part of the “click” that’s really receiving the opportunity to influence the debate at some of the other conferences because they’re unable to pay the money.  My idea is to take people from different groups, with different perspectives, regardless of resources they have to influence the conversation, and just try to solve the problem.

Where do you see The Master’s Conference heading in the future and how do you think that will coincide with the direction of the eDiscovery market?

Let me answer the market question first.  The more that the market continues to consolidate and these companies gobble up each other (and become part of IBM, Microsoft, HP, you name it), I think the opposite happens.  As more and more organizations start to “become one,” it opens up the specialty shops.  In the 90’s, there was a push for stores to all look the same within an organization, so, for example, regardless of which Home Depot you went into, you could find a hammer in the same place.  What’s happening with Yelp and other sites like it is that the specialty shops are emerging.  So, if you’re looking for a particular type of cheese, you’re looking for a cheese shop whereas, maybe ten years ago, you wanted to see if WalMart had it.  In our market, a similar thing is happening – the market is expanding, and that means we can focus on a lot of detailed offerings instead of just a one stop shop.  IBM bought PSS Atlas and had made other acquisitions and rolled it into their program.  They were the third-day keynote and LegalTech and had all these pitches, yet nowhere that I go I hear about IBM.

So, I think Master’s will always have a play.  There will always be plenty of clients for us, lots of opportunities, especially when you consider that the mid-tier and small firm markets have yet to be tapped.  In those businesses, you can buy a product without having to go through so many hoops to get approval to buy it.  So, I see the market exploding.  You also see cyber getting more involved in our space, and I think we’re bridging the gap between law and cyber.  We’re eleven years old, and we’ve been a player for a long time. I believe the next step for Master’s is to continue to refine, continue to develop high content, deliver great speakers and provide great experiences while still keeping it attainable and affordable for our clients to participate while being diverse.

Thanks, Robert, for your time!

So, what do you think?  Are you going to be in San Francisco on April 25?  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.

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.

Lack of Cooperation Leads to Court to Order Scope of Discovery for Defendant: eDiscovery Case Law

In Bird v. Wells Fargo Bank, No. 16-1130 (E.D. Cali., Mar. 31, 2017), after the parties could not agree on the parameters and scope of discovery, California Magistrate Judge Erica P. Grosjean ordered the defendant to produce several categories of documents related to the plaintiff’s former employment, disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

Case Background

In this case for gender and age discrimination and breach of employment contract filed by a former employee of the defendant after termination (defendant’s claimed grounds for termination was failure to comply with its security policy), the parties initially submitted a joint FRCP 26(f) report the initial scheduling conference that stated that they did not anticipate that the case would “involve significant electronic discovery issues”.  However, discovery negotiations eventually broke down between the parties.  During a March 1, 2017 conference, the Court ordered the parties to meet and confer regarding the scope and terms of ESI discovery and requested a status report on March 15.

On the afternoon of that conference, the defendant wrote to the plaintiff to, among other things, demand a list of search terms from the plaintiff by close of business on March 3. The defendant concluded the correspondence by stating “If you breach the agreement and fail to provide the list by COB on Friday then our agreement regarding the documents discussed above is null and void ab initio and we will once against take these issues to Judge Grosjean and will move to compel Plaintiff’s deposition and seek sanction.”  Meanwhile, the plaintiff sent a meet and confer letter to the defendant on March 1 and another letter the following day, but did not receive a prompt response.

The day before the joint statement on meet and confer was due with the Court, plaintiff’s counsel wrote to defense counsel explaining that the defendant had not responded to the plaintiff’s meet and confer efforts.  The defendant finally provided its “position with regard to ESI” later that day at 4:33 pm, indicating (among other things) that it had purged the plaintiff’s emails after she was terminated, that it would take six to eight weeks to pull any requested ESI (which would still then have to be reviewed for privilege, privacy and confidentiality) and further reserved the right to shift all fees and costs incurred in the collection, review, and production of ESI to the plaintiff.

Judge’s Ruling

While acknowledging that both parties “shoulder some of the blame for this breakdown”, Judge Grosjean stated that “the Court is particularly troubled by Defendant Wells Fargo’s approach to discovery in this case. Defendant has taken the legally unsupportable position that it is not under any obligation to provide electronic discovery unless and until there is full agreement on search terms. This position has led to the predictable conclusion that discovery is completely stalled and Defendant is not close to meeting its discovery obligations. Defendant also withheld information about Plaintiff’s inbox until after the initial discovery cut-off. It both fails to provide any date certain for production and will not extend the schedule a reasonable amount of time. It continues to threaten to have Plaintiff pay its costs without any legal justification. The Court also takes issue with the tone of Defendant’s communication, such as telling Plaintiff that Defendant’s agreement to produce certain documents will be ‘null and void ab initio’ and that Defendant will request sanctions if Plaintiff did not provide certain search terms by the deadline imposed by Defendant…Such dialogue is not professional and not a good faith attempt to meet and confer.”

As a result, Judge Grosjean stated that “the Court will issue the following order under its authority in Rule 16 regarding the scope of discovery” and ordered the defendant to produce several documents related to the plaintiff’s employment, including her complete personnel file, documents regarding her termination and any disciplines or reprimands she received, documents regarding her compensation and security policy documentation (including a three year report of all employees who failed to comply with the defendant’s security policy, including age, gender and whether the employee was terminated).  Judge Grosjean also ordered the defendant to disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

So, what do you think?  Should the judge have dictated the discovery parameters for the defendant or should she have worked with the parties some more to resolve the conflicts?  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.