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Electronic Discovery

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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

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.

The Internet is Even Busier That it Was Last Year: eDiscovery Trends

About this time last year, I published (or re-published, if you will) a terrific infographic that illustrated what happens within the internet in a typical minute in 2016.  Since I will be part of a panel discussion at The Master’s Conference in San Francisco next Tuesday and the topic will be big data and data discovery, I thought it would be good to take a fresh look at what happens in a 2017 internet minute!

This updated graphic, created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2017.  There are several different categories tracked in this graphic than the one we referenced last year, so it’s interesting to see what’s tracked this year.  For the categories that are the same, they are all (not surprisingly) up, compared to last year – some more than others.  More data to manage within organizations and during litigations, investigations and audits than ever!  Here is the graphic again, full sized:

They say a picture says a thousand words, so consider my blog post complete for today!  :o)

So, what do you think?  How have the challenges of Big Data affected your organization?  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.

Craig Ball Says That Failure to Preserve Mobile Devices in Litigation is the “M” Word: eDiscovery Best Practices

In the latest post in his excellent Ball in Your Court blog, Craig Ball has some strong words for attorneys who fail to advise clients to preserve ESI from mobile devices when under a preservation duty.

In the post titled A New Paradigm in Mobile Device Preservation, Craig discusses how prevalent the use of mobile devices have become in our society, noting that “[d]riving under the influence of phones has eclipsed driving under the influence of alcohol as the most frequent cause of motor vehicle collisions” and that “[w]alking into fixed objects while texting is reportedly the most common reason young people visit emergency rooms today”.

As someone who never goes anywhere without my iPhone and a parent of two pre-teen kids for whom we have to set limits on their devices (for fear that they will literally spend the entire day on them), I can certainly relate to our level of addiction to our mobile devices in today’s society.

Because of that change, Craig issues a very strong statement when it comes to an attorney’s duty to advise clients to preserve ESI from these devices now:

“Today, if you fail to advise clients to preserve relevant and unique mobile data when under a preservation duty, you’re committing malpractice.”

That’s the “M” word that I referred to in the title of this post and Craig says he doesn’t use it lightly.

Craig identifies the fact that data on phones and tablets is not just a copy of ESI on other sources anymore and the increasing ease to perform a backup of data on your mobile device as two paradigm shifts that impact the requirement for mobile device preservation.  Today, it’s unique data without an unusual burden required to preserve that data.

Our coverage yesterday of this case where the judge recommended dismissal of the case after the plaintiff erased and reset her iPhone – 6 hours before turning it over to her attorney to be sent for forensic examination (naturally, she claimed not to know what happened) illustrates what can happen when mobile devices aren’t preserved.  Sadly, I expect we will see more cases like this in the future.

So, what do you think?  Is failure to advise clients to preserve ESI from mobile devices malpractice?  As always, please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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 Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Plaintiff’s Erasure of iPhone Before Forensic Examination Leads to Recommended Dismissal of Case: eDiscovery Case Law

In Coyne v. Los Alamos National Security, LLC et. al., No. 15-0054 (D. N.M., Mar. 21, 2017), New Mexico Magistrate Judge Karen B. Molzen recommended that the court grant the defendants’ motion to dismiss after the plaintiff’s erased and reset her iPhone the day before it was produced for forensic examination, the “culmination of her and her husband’s willful failure to comply with their discovery obligations in this case.”

Case Background

In this case where the plaintiff alleged wrongful termination (among other complaints) after she was terminated pursuant to a Reduction in Force policy (the plaintiff contended it was retaliation for taking leave under the Family Medical Leave Act after an alleged assault by a co-worker), the Court had already granted Motions to Compel against both Plaintiff and Defendants.  However, only the plaintiff and her husband had been sanctioned for discovery violations with various fees, including attorney’s fees, to the tune of over $11,000 (most of which was still unpaid).

The parties continued to proceed with discovery, and on September 30, 2016, the defendants served plaintiffs’ counsel with a request for a forensic inspection of the plaintiff’s iPhone, seeking text messages between the plaintiff and her husband and between the plaintiff and her treating psychiatrist.  The plaintiff not only did not object to the request, she even cooperated with the defendants’ attempts to retrieve them from her cellular carrier and from Apple before agreeing to the inspection.

On January 4, 2017, the plaintiff’s counsel called the defendants’ to report that he was ready to ship the iPhone to the forensic examiner and it was sent the next day.  The forensic examiner discovered that the phone had been erased and reset six hours before the plaintiff had turned it over to her attorney to be sent for examination. In his affidavit testimony, the forensic examiner explained that erasing and resetting an iPhone cannot happen accidentally or inadvertently, but the plaintiff claimed to have no knowledge of what had happened. As a result, the defendants moved the Court to dismiss the plaintiff’s case in its entirety with prejudice “as a sanction for Plaintiff’s intentional and permanent erasure of all the data on her iPhone the day before it was produced” for the forensic evaluation.

Judge’s Ruling

Judge Molzen considered the relevant factors necessary to determine whether dismissal was warranted.  Those factors are: (1) The degree of actual prejudice to the defendant; (2) The amount of interference with the judicial process; (3) The culpability of the litigant; (4) Whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and, (5) The efficacy of lesser sanctions.  With regard to those factors, Judge Molzen determined that all were satisfied, with the possible exception of the fourth factor, but stated that she “is not convinced such a specific warning was required in this case”.  Judge Molzen also determined that none of the available sanctions options were sufficient, noting that “almost all” of the monetary sanctions levied against the plaintiff “remain unpaid”.

Determining that “Plaintiff’s decision to erase and reset her iPhone the day before it was produced” was “but the culmination of her and her husband’s willful failure to comply with their discovery obligations in this case”, Judge Molzen recommended that the court grant the defendants’ motion to dismiss.

So, what do you think?  Was the recommended sanction too harsh?  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.

Has eDiscovery Business Gotten a Bump or a Slump from Trump?: eDiscovery Trends

Don’t be a chump, be the ump!  It’s time for another quarterly eDiscovery Business Confidence Survey!  This time, it’s the Spring 2017 eDiscovery Business Confidence Survey created (and cleverly titled) by Rob Robinson and conducted on his terrific Complex Discovery site.  It’s the second year of the quarterly survey and we’ve covered every round of the survey so far (2016 coverage of results are here, here, here and here, and Winter 2017 coverage is here).  Now, it’s time for the Spring 2017 Survey!

As before, the eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.

This year’s survey consists of nine multiple choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services and may be useful for eDiscovery-related business planning.  It’s a simple nine question survey that literally takes about a minute to complete.  Who hasn’t got a minute to provide useful information?  As always, individual answers are kept confidential.

The Spring 2017 Survey response period is between today and achievement of 100 responses or May 31, 2017 (whichever comes first).  If last quarter is indicative of the voting, the survey will be closed way before May 31.  So, vote early if you want to be counted!  What more do you need?  Click here to take the survey yourself.

Now that we have entered a second year for the survey, we’ve started to evaluate year over year results to differentiate those variations from quarterly fluctuations and eDiscovery Daily will cover the results once again!

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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 Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Tells Litigants “NO MORE WARNINGS” When It Comes to Boilerplate Discovery Objections: eDiscovery Case Law

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017), Iowa District Judge Mark W. Bennett declined to sanction the parties for issuing boilerplate objections, but strongly warned them that the use of boilerplate objections in the future would place counsel and their clients at risk for significant sanctions.

In this case related to millions of dollars’ worth of sausage that turned rancid, it became apparent to the Judge Bennett (during a review of another discovery dispute) that both parties had submitted “obstructionist discovery responses” to each other during the discovery process.  On January 27, 2017, Judge Bennett entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing, directing the parties to file, under seal, all their written responses to each other’s discovery requests by the following day. Judge Bennett also notified counsel of his intention to impose sanctions on every attorney who signed the discovery responses, if he determined that the responses were, indeed, improper or abusive

The parties filed their written responses to discovery requests, as directed, the following day.  Based on his review of the discovery responses, Judge Bennett identified numerous discovery responses, from both sides, that he identified as improper in this ruling.  According to Judge Bennett, the improper objections included:

  • “not reasonably calculated to lead to the discovery of admissible evidence”;
  • “subject to and without waiving its general and specific objections”;
  • “to the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure”; and
  • “overbroad and unduly burdensome.”

In its brief in response to the Order To Show Cause, the plaintiff acknowledged that many of its objections were not stated with specificity, but asserted that it had not interposed any objection “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and that some of its objections did include explanations.  The defendant, in its brief, stated that its written responses to the plaintiff’s discovery requests were not intended for any improper purposes and that the parties had conducted the litigation in a cooperative and professional manner. The defendant also noted that a magistrate judge had reviewed various defendant responses and found no fault with them, contending that that both parties relied on standard “boilerplate” language to assure that they were not waiving their rights while they met and conferred about the scope of privileges, pertinent time periods, among other issues.

Both sets of counsel ultimately admitted that the reason they used “boilerplate” objections had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the “culture” that routinely involved the use of such “standardized” responses.

Judge Bennett evaluated each boilerplate objections, identifying violations of Rule 26(d), 26(b)(5)(A)(iii) and the “specificity” requirements of Rules 33(b)(4) and 34(b)(2).  However, in part because the parties “did not try to raise frivolous defenses for their conduct when called on” the use of “boilerplate” sanctions, Judge Bennett declined to sanction the parties this time.  Instead, he provided a new Supplemental Trial Management Order, advising the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.”

Judge Bennett also concluded his order with these strong words, in caps for emphasis: “NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.”

Here’s another recent case where parties were warned about “boilerplate” objections.

So, what do you think?  Will we someday get past the issue of lawyers using standard, “boilerplate” objections in discovery responses?  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 Find Out What Every Attorney Should Know About eDiscovery in 2017: eDiscovery Trends

If you’ve missed earlier opportunities to find out what every attorney should know about eDiscovery in 2017, you get another opportunity today, thanks to our friends at ACEDS!

Today’s ACEDS webinar at noon CT (1pm ET, 10am PT) is titled (oddly enough) What Every Attorney Should Know About eDiscovery in 2017.  This is a one-hour session that Karen DeSouza (Director of Review Services here at CloudNine) and I have conducted for the past couple of years for hundreds of legal professionals for CLE credit in Texas.  It’s a good fundamental session that covers a lot of things attorneys need to know in eDiscovery today, including:

  • Key Terms
  • Phases of the EDRM
  • Rules Regarding Electronically Stored Information (ESI)
  • Competency Ethical Duties of Attorneys Regarding eDiscovery
  • Top Ten Important Cases in the Evolution of eDiscovery Best Practices
  • Useful Resources for eDiscovery Continued Education

The webcast is CLE approved in Texas, with 1.0 hours of CLE credit, with 0.25 hours of Ethics credit.  To obtain approval in Texas, you will need to send your information (along with bar number) after the webcast to Karen at kdesouza@cloudnine.com, so that she can log your credit hour.  Other states may offer reciprocity credit for CLE approved in Texas, so check with your State Bar for more information.

Let’s face it, managing discovery is more complicated and expensive than ever, with more data and documents to manage, new sources and types of data to consider, and changing Federal and State rules.  This webinar can help you learn what you need to know to stay on top of it all.

To sign up for today’s webcast, click here.  Hope to see you there!

So, what do you think?  Do you feel like you need help understanding the eDiscovery process and what courts expect?  If so, please feel free to join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.