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Electronic Discovery

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

Putting Information on File Share Site without Protection Waives Privilege, Court Rules: eDiscovery Case Law

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017), Virginia Magistrate Judge Pamela Meade Sargent ruled that the plaintiff’s placement of privileged information on a file share site and distribution of the hyperlink to access that information without providing any protection for the site resulted in a failure to take reasonable steps to protect the information – as a result, the declared attorney-client privilege and work-product protections were waived.  Judge Sargent also denied the plaintiff’s motion to disqualify defense counsel for accessing the information without informing plaintiff’s counsel, but did order defense counsel to pay the plaintiff’s fees and costs in bringing the motion.

Case Background

In this dispute over a fire insurance claim by the defendants against the plaintiff insurance agent, a senior investigator for Nationwide Insurance, owner of the plaintiff company, uploaded surveillance footage to a file share service operated by Box, Inc. and sent an email containing a link to the site to an investigator at the National Insurance Crime Bureau (“NICB”) in September 2015.  The email contained a confidentiality notice indicating that the “e-mail contains information that is privileged and confidential”.  The information on Box was not password protected, but, for a while, only the video was available on the Box site.  The plaintiff conceded that any person who used the hyperlink to access the Box Site had access to the electronic information stored there as it was not password protected.

In April 2016, the Nationwide investigator placed files containing the plaintiff’s entire claims file and Nationwide’s entire investigation file for the defendants’ fire loss on the Box Site to be accessed by the plaintiff’s counsel.  Then, in May 2016, in response to a subpoena, the NICB electronically produced its files – including the email containing the link – to the defense counsel, which gave them access to the file share site containing the claims files.  Defense counsel subsequently accessed the site and reviewed and downloaded the entire claims file, but did not notify the plaintiff’s counsel that it had accessed the information until plaintiff’s counsel discovered the claims file included in materials produced by the defense in October 2016.  As a result of this discovery, the plaintiff moved to disqualify defense counsel; in response, they argued that that the motion should be denied because the plaintiff “waived any claim of privilege or confidentiality by placing the information on the Box, Inc., site where it could be accessed by anyone.”

Judge’s Ruling

In assessing the waiver of attorney-client privilege, Judge Sargent noted that “the court has no evidence before it that any precautions were taken to prevent this disclosure”, observing that the employee who uploaded the information to the site and plaintiff’s counsel both “knew – or should have known – that the information was accessible on the internet.”  As a result, Judge Sargent found that the plaintiff “has waived any claim of attorney-client privilege with regard to the information posted to the Box Site”, noting that the plaintiff “conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise.”

Based on the fact that the plaintiff did not claim that its agent’s posting of its claims file to the Box Site was not an intentional act and that she could not “find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation”, Judge Sargent determined that “Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine”.  As a result, she also concluded that the plaintiff waived any claim of privilege or work-product protection over its claims file.

As for the plaintiff’s motion for disqualification, Judge Sargent noted that “defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email” and indicated that “[t]his court should demand better” in terms of behavior of the defense counsel.  However, she stated: “Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation”, calling that “an extreme sanction”.  Instead, she found that “the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court’s ruling on the matter”.

So, what do you think?  Should placing files on a file share site waive privilege?  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.

Something in Common with a Secret Service Agent: eDiscovery Trends

I have something in common with a Secret Service agent.  We both have had a laptop stolen out of a vehicle.

In the case of the Secret Service agent, as reported by CBS New York (and covered by Ride the Lightning), an unoccupied vehicle with Maryland plates was broken into in the driveway of the agent in Brooklyn earlier this month and a bag with a laptop and other items belonging to the agent was stolen.  The laptop supposedly contained sensitive information, including Trump Tower floor plans and evacuation protocol as well as information pertaining to Hillary Clinton’s campaign email investigation, but no sensitive information related to the White House on the laptop.

Other sensitive documents that were in the car were also taken, but it’s unclear what those documents are, according to CBS. The information on the laptop cannot be remotely erased, sources said.

“The U.S. Secret Service can confirm that an employee was the victim of a criminal act in which our Agency issued laptop computer was stolen,” the agency said in a statement on March 17. “Secret Service issued laptops contain multiple layers of security including full disk encryption and are not permitted to contain classified information. An investigation is ongoing and the Secret Service is withholding additional comment until the facts are gathered.”

Ultimately, the NYPD recovered the bag – black with a Secret Service insignia on it – which contained a collection of coins and other items, but no laptop.  There was also video showing the apparent suspect pulling up to the agent’s house and later carrying and disposing the bag.

The same thing happened to me back in 2014, as I was preparing to travel to LegalTech New York (LTNY) with my colleagues and we stopped at a restaurant to wait out a flight delay (during the great New York ice storm of 2014).  Our bags were in my boss’s truck, a mere 12 feet away from the entrance to the restaurant, just around the corner.  Several bags were stolen, including my laptop – the one time that I decided to leave it in a vehicle (I swear).  Now, I always take it with me, even if I’m just stopping at a convenience store for a drink.

Fortunately, the laptop was very well secured with encryption and good authentication security and I don’t keep client data on my local laptop.  That didn’t stop me from changing every online password that I could think of – eighteen of them.  Can’t be too careful.

We like to think that data stored locally on our laptops is more secure that data out on the cloud, but that’s often not true.  Maybe that’s why some think that, by 2020, 92 percent of everything we do will be in the cloud.  With locally stored data, you’re just a stolen laptop away from potentially being compromised.  Even if your job is to protect the president.

So, what do you think?  Have you ever had a laptop stolen?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — The photo above is stock footage, not the actual theft of the agent’s laptop.  I know nothing about the theft, honest!

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

Defendant Not Required to Modify Production After Plaintiff Fails to Demonstrate Prejudice: eDiscovery Case Law

In Excel Enterprises, LLC v. Winona PVD Coatings, LLC, No. 3:16-cv-19-WCL-MGG (N.D. Ind., Feb. 17, 2017), Indiana Magistrate Judge Michael G. Gotsch, Sr. ruled that despite the fact that the defendant failed to demonstrate that it produced documents kept in the ordinary course of business, the plaintiff failed to demonstrate any prejudice suffered from the current state of the production and granted the defendant’s motion to reconsider the court’s earlier order regarding the format of the defendant’s production.

Case Background

In this breach of contract case, the plaintiff’s counsel informed the defendant’s counsel that the documents in its original production were not searchable and identified the format for the documents it preferred. In response, the defendant converted all of its responsive documents to the plaintiff’s preferred format and delivered them to the plaintiff in the requested format on 8 days later in July 2016.

On that same day, the plaintiff filed a motion to compel alleging, among other things, that the defendant had not complied with the production requirements set forth in Fed. R. Civ. P. 34(b)(2)(E)(i), which requires parties to produce documents responsive to requests for production “as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.”  The plaintiff argued that the defendant’s documents were not presented as they were kept in the usual course of business and asked the Court to compel the defendant to organize and label the documents to clarify which document responded to which specific discovery request.

The Court ultimately granted this part of the plaintiff’s motion, ordering the defendant “to supplement its production to identify by Bates Numbers which documents were produced in response to which specific discovery requests by November 15, 2016” because the defendant’s assertion that it produced the requested documents as they were kept in the ordinary course of business was not sufficiently supported with appropriate evidence.  In response, the defendant filed an instant motion to reconsider, presenting additional evidence (including attaching an affidavit from its Director of Information Technology) in an attempt to show that its production complies with Rule 34(b)(2)(E)(i).  However, the plaintiff objected, arguing that the affidavit failed to explain how the documents were stripped of their metadata and converted to unsearchable .pdf and .tiff files before the initial production or maintained as unsearchable .pdf and .tiff files in its ordinary course of business.

Judge’s Ruling

Judge Gotsch noted that the defendant “had the opportunity to present evidence that it produced the 30,000 documents as they were kept in the usual course of its business”, but its “attempt to so demonstrate was determined to be deficient to such an extent that the Court ordered Winona to comply with the other option under Rule 34(b)(2)(E)(i)—organizing and labeling the 30,000 documents to correspond to the categories in Excel’s discovery requests.”  Even with the affidavit submitted with the instant motion to reconsider, Judge Gotsch noted that the affidavit “clearly describes the process Winona used to produce its responsive documents to Excel, but provides no explanation of how the responsive documents were kept in the ordinary course of Winona’s business.”

However, the defendant also argued that “Excel has yet to offer any argument or evidence that it has suffered prejudice as a result of Winona’s production.”  To that, Judge Gotsch responded, stating that “Winona is correct. Through both its second motion to compel and its objection to the instant motion to reconsider, Excel has merely asked the Court to hold Winona to the form of Rule 34(b)(2)(E)(i) with no discussion of any adverse effect on Excel should the Court deem Winona’s current production of 30,000 documents, in the format explicitly requested by Excel and with important identifying information, complete.”  Noting that Fed. R. Civ. P. 26(b)(1), gives district courts broad powers to manage discovery in their cases, Judge Gotsch stated that “Excel’s demand for strict compliance with Rule 34(b)(2)(E)(i) amounts to a form-over-substance argument. As such, the cost and time Winona would expend to organize and label the 30,000 responsive documents at this time would pose a burden that outweighs the potential benefit of the exercise to Excel.”  As a result, he granted the defendant’s motion to reconsider the court’s earlier order.

So, what do you think?  Was that the right decision or should the court have stuck with its original order?  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

Requesting 72 Spelling Variations on Five Search Terms Spells Trouble for Plaintiffs: eDiscovery Case Law

In Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., No. 14-826 (D. Utah, Feb. 23, 2017), Utah Magistrate Judge Brooke C. Wells denied the plaintiff’s Motion for Sanctions for the failure of the defendant to produce ESI, finding that the plaintiff had failed to sufficiently narrow its search terms by introducing 72 spelling variations on the five terms it proposed.  Judge Wells also denied the defendants’ Motion for Order to Show Cause and for Sanctions, finding that the defendants had failed to provide any “certification that the parties made reasonable efforts to reach agreement on the disputed matters.”

Case Background

In this case regarding defamatory comments and photographs allegedly posted on the internet by the defendants about the plaintiffs (who were business competitors), Judge Wells led off her order by stating: “To state that the parties in this matter are not cooperating with each other is an understatement.”  Throughout the case, each of the parties had taken turns filing motions for sanctions and each of the parties had complained to the court about the other side failing to provide requested discovery, causing Judge Wells to note that the case “has sat stuck in the quagmire of discovery despair” since it was filed in November 2014.

The plaintiffs sought sanctions against the defendants for their alleged failure to comply with a May 2016 court order compelling them to produce certain items. Following a hearing held in December 2016, it became apparent that some items were still outstanding. The court took the Motion for Sanctions under advisement before finding in January 2017 that the email search terms submitted by the plaintiffs were “overly generic and result in an undue burden placed upon Defendants”. The court ordered the plaintiffs to provide “five detailed search terms that must be more detailed than those previously submitted”.

Following the court’s order, the plaintiff provided the defendants with five search terms, but also provided 72 “spelling variations” on these search terms for a total of 77 search terms.  Due to the number of search terms, the defendants filed a Motion for Order to Show Cause and for Sanctions, again asserting that the plaintiff was on a fishing expedition and also arguing that the plaintiff had failed to comply with the court’s May 2016 order, asking for sanctions citing to the Ehrenhaus factors.  In response, the plaintiff argued it is easy to search using the 72 “spelling variations” if quotations are used.

Judge’s Ruling

In considering the motions, Judge Wells stated: “After considering all that has happened during discovery the court finds both parties to be at fault. First, the court finds Plaintiff has failed to sufficiently narrow its search terms. Previously the court found Plaintiff’s search terms to be overly generic placing an undue burden upon Defendants. Now, Plaintiff has taken the court’s instruction to provide five search terms to an extreme by supplementing it with 72 additional ‘spelling variations.’ Such an expansion is not within the spirit and intent of the court’s prior orders, its comments during hearings or within the principles of proportionality found in the discovery rules.”  As a result, Judge Wells ruled that “Plaintiff is permitted to use the five search terms it has provided along with three listed spelling variations, three for each of the five search terms, for a total of twenty terms.”

As for the defendants’ motion, Judge Wells stated that “Defendants Motion for Order to Show Cause and for Sanctions not only misstates the record before the court, it also fails to comply with the Short Form Discovery Rules as set forth by Judge Nuffer and as set forth in Local Rule 37-1. Defendants have failed to provide any ‘certification that the parties made reasonable efforts to reach agreement on the disputed matters’ and that provides an additional basis to deny Defendants motion.”  Judge Wells also noted that “[m]uch of Defendants motion is an attempt to draw the court’s attention away from Defendants own malfeasance. There is no excuse for Defendants failure to provide the federal tax returns and bank statements.”

Judge Wells also issued a warning to “both parties that going forward there needs to be a renewed spirit of cooperation otherwise the court will use its inherent powers to sanction the attorneys in this case for the continued stonewalling that has been a reoccurring theme in this litigation.”

So, what do you think?  Should courts rule on limiting spelling variations of search terms?  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.

For the Fifth Year, Florida is the Place to Be for eDiscovery Education: eDiscovery Trends

The fifth annual University of Florida E-Discovery Conference is coming up one week from today, on March 30, and you can attend even if you don’t plan to be in the state of Florida on that day.

Not surprisingly, given the new technology CLE requirement in Florida, the focus of the conference this year is competence in 2017.  As the conference site notes, it’s “no longer your grandfather’s e-discovery (circa 2005). There are exciting new e-discovery tools, new offerings and huge new challenges against a backdrop of increasing demands for competence by judicial officials.”

Notable speakers include Craig Ball, George Socha of BDO Consulting, David Horrigan of kCura, Ralph Losey of Jackson Lewis, Mary Mack of ACEDS, Kenya Dixon of the FTC, Corey Lee of Hunton & Williams and Sonya Strnad from Holland & Knight.  Not to mention a number of federal and state judges, including U.S. Magistrates William Matthewman, Anthony Porcelli, and Gary Jones, Florida Circuit Court Judge Meenu Sasser, and retired Florida Circuit Court Judge Ralph Artigliere.

The conference includes topics ranging from cloud/social media/mobile devices preservation to collections on a budget to meet and confer to defending your keyword search.  The use of artificial intelligence for document review is explored, as well as efficient and reliable document review using contemporary tools.  The day ends with a judicial panel where federal and state judges discuss what they now expect from clients and attorneys.  A link to the Agenda is here.

For the first time, the University of Florida Levin College of Law is also sponsoring an E-Discovery CareerFest to respond to the growing interest of University of Florida law students in exploring career paths that involve electronic discovery and data analytic skills.  The CareerFest will be conducted the day before the main conference, Wednesday, March 29, from 3:00 to 5:30PM ET.

The 2017 UF Law E-Discovery Conference has been approved for 6 General, 6 Technology and 1 Ethics CLE credits by the Florida Bar.  If you plan to attend in person, the event will once again take place at the University of Florida Levin College of Law campus.  But, if you can’t attend in person, the event will also (once again) be streamed online.

The conference costs $199 to attend in person or $99 to attend via livestream.  Members of the 8th Judicial Circuit Bar Association, ACEDS and Friends of the conference are eligible to receive a discounted rate.  The conference is free to attend in person or via livestream to all employees of federal and state government agencies, judges and judicial staff, students, and academics.  To register for the conference, click on the “Register Now” link on the conference web site here.

So, what do you think?  Are you attending the conference?  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 FREE Training Course on How to Do TAR: eDiscovery Best Practices

A lot of people can talk about technology assisted review (TAR), but how many people actually know how to conduct an eDiscovery review using TAR?  Here’s a TAR course that’s designed to show you how to do it.

On Ralph Losey’s excellent e-Discovery Team® blog, he has unveiled the e-Discovery Team’s training course on how to conduct electronic document review enhanced by active machine learning, a type of specialized Artificial Intelligence.  In other words, the training course is designed to teach you how to “do” TAR.

The TAR method that Ralph discusses is called Hybrid Multimodal IST Predictive Coding 4.0 and the Course is composed of Sixteen Classes, which are individual pages on the e-Discovery Team site.  The Classes are here (links to each one are available via the Introduction link below):

  1. First Class: Introduction
  2. Second Class: TREC Total Recall Track
  3. Third Class: Introduction to the Nine Insights Concerning the Use of Predictive Coding in Legal Document Review
  4. Fourth Class: 1st of the Nine Insights – Active Machine Learning
  5. Fifth Class: Balanced Hybrid and Intelligently Spaced Training
  6. Sixth Class: Concept and Similarity Searches
  7. Seventh Class: Keyword and Linear Review
  8. Eighth Class: GIGO, QC, SME, Method, Software
  9. Ninth Class: Introduction to the Eight-Step Work Flow
  10. Tenth Class: Step One – ESI Communications
  11. Eleventh Class: Step Two – Multimodal ECA
  12. Twelfth Class: Step Three – Random Prevalence
  13. Thirteenth Class: Steps Four, Five and Six – Iterate
  14. Fourteenth Class: Step Seven – ZEN Quality Assurance Tests
  15. Fifteenth Class: Step Eight – Phased Production
  16. Sixteenth Class: Conclusion

Ralph notes that “With a lot of hard work you can complete this online training program in a long weekend. After that, this course can serve as a solid reference to consult during your complex document review projects.”

The sixteen classes in this course cover seventeen topics, split into nine insights and eight workflow steps:

  1. Active Machine Learning (aka Predictive Coding)
  2. Concept & Similarity Searches (aka Passive Learning)
  3. Keyword Search (tested, Boolean, parametric)
  4. Focused Linear Search (key dates & people)
  5. GIGO & QC (Garbage In, Garbage Out) (Quality Control)
  6. Balanced Hybrid (man-machine balance with IST)
  7. SME (Subject Matter Expert, typically trial counsel)
  8. Method (for electronic document review)
  9. Software (for electronic document review)
  10. Talk (step 1 – relevance dialogues)
  11. ECA (step 2 – early case assessment using all methods)
  12. Random (step 3 – prevalence range estimate, not control sets)
  13. Select (step 4 – choose documents for training machine)
  14. AI Rank (step 5 – machine ranks documents according to probabilities)
  15. Review (step 6 – attorneys review and code documents)
  16. Zen QC (step 7 – Zero Error Numerics Quality Control procedures)
  17. Produce (step 8 – production of relevant, non-privileged documents)

Ralph provides charts to illustrate the insights and steps on his Introduction class.  Ralph notes that they “offer this information for free on this blog to encourage as many people as possible in this industry to get on the AI bandwagon.”  I asked Ralph if he wanted to say anything additional to our readers regarding the course and he told me that he “will be adding homework assignments next at the end of each class.”  I look forward to “diving in” and reviewing the classes on my own ASAP.  Thanks, Ralph!

So, what do you think?   Have you used TAR on a case yet?  If so, how did it go?  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.

6,905 Billable Hours for Attorney Review May Not Be Billable if the Reviewer Isn’t Actually an Attorney: eDiscovery News

A contract lawyer for a Pennsylvania plaintiffs’ firm clocked 6,905 hours of work on a shareholder lawsuit against former executives and directors of Sprint Corp. related to its 2005 merger with Nextel.  One problem, however: that attorney had apparently been disbarred for years when he performed the work.

According to an article in the Wall Street Journal (One Lawyer, 6,905 Hours Leads to $1.5 Million Bill in Sprint Suit, written by Joe Palazzolo and Sara Randazzo, subscription required), “Alexander” Silow, a contract lawyer for the Weiser Law Firm PC, clocked 6,905 hours of work during the case. Averaging about 13 hours a day, Silow reviewed 48,443 documents and alone accounted for $1.5 million, more than a quarter of the requested legal fees, according to court documents.  Those awarded fees had already been cut from $4.2 million down to just $450,000 back in November of last year.

That initial fee reduction was awarded after Kansas District Judge James Vano called the requested amount “unbelievable.” “It seems that the vast amount of work performed on this case was illusory, perhaps done for the purpose of inflating billable hours,” Judge Vano, who sits in Olathe, Kan., wrote in a Nov. 22 opinion.

Silow had been working as a contract attorney for at least eight years when staffing agency Abelson Legal Search placed him at the Weiser firm in 2008, according to a Feb. 3 letter from the firm to Judge Vano. The law firm was notified by a third party it declined to name and learned that no one with Silow’s name was listed in a state database of licensed lawyers, Robert B. Weiser, co-founder of the firm, said in the letter.  Silow had presented himself to the firm as “Alexander J. Silow”, but “was in actuality named Jeffrey M. Silow” and confessed he had been disbarred when the firm confronted him, the letter said. The firm has since ended its relationship with Mr. Silow and alerted authorities, it said.  The Pennsylvania’s attorney discipline office confirmed Mr. Silow was disbarred in 1987 but could provide no additional information.

At least one Sprint Shareholder has requested that the case be reviewed again by Judge Vano in light of the new allegations.

According to Lester Brickman, an emeritus professor at Benjamin N. Cardozo School of Law in New York who has written about bill padding, plaintiffs’ firms bill for work done by contract attorneys like Mr. Silow at hourly rates of $300 or more when they submit their fee requests, but they typically pay the attorneys $20 to $40 per hour.  Brickman said it is common for firms to staff cases with contract attorneys and direct them to review thousands of documents to run up the fees.  In this case, bill padding and excessive markup appears to have been the least of the firm’s problems.

Thanks to ACEDS for the tip on the story!

Also, yesterday, I thanked our readers for 6 1/2 years of support and readership of the blog.  Today, I want to thank JD Supra and its readership for being named the Readers’ Choice Top Author in eDiscovery (and CloudNine being named the Top Firm) for 2017!  Distribution of our posts via JD Supra has grown our readership greatly over the past year and I really appreciate our partnership with JD Supra and thank all of you for reading our blog, whether it’s via JD Supra or the “old fashioned way” via our site!  Thank you so much!

So, what do you think?   Should firms do more to ensure that the attorneys they use for review are actually licensed attorneys?  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.

78 is Great! eDiscovery Daily Is Seventy Eight! (Months Old, That Is)

A new record!  (Get it?)  Seventy eight months ago today (a.k.a., 6 1/2 years), eDiscovery Daily was launched.  It’s hard to believe that it has been 6 1/2 years since our first three posts debuted on our first day, September 20, 2010.  Now, we’re up to 1,656 lifetime posts, and so much has happened in the industry that we’ve covered.

Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

Thanks, once again, for your support!  Our subscriber base and daily views continue to grow, and we owe it all to you!  Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  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 Comma Means That Breaking Up Overtime Pay is Hard to Do: Litigation Trends

Do do do

Down dooby doo down down

Comma, comma, down dooby doo down down

Comma, comma, down dooby doo down down

Breaking up is hard to do

Not since Neil Sadaka’s classic song has a “comma” meant so much.  A class-action lawsuit about overtime pay for truck drivers has come down to punctuation and the lack of an Oxford comma has resulted in an appeals court reversal of a partial summary judgment by a lower court.

As reported by Newser (Dairy Drivers in Maine Are Celebrating a Missing Comma, written by Jenn Gidman), dairy drivers in Maine won an appeal because of a missing Oxford comma. In the suit over overtime pay against Oakhurst Dairy, first filed in 2014, drivers complained that a list of tasks not eligible for overtime did not make it clear whether “distribution” counted, mainly because of the lack of the Oxford comma.

FWIW, an Oxford comma is defined as a comma used after the penultimate item in a list of three or more items, before ‘and’ or ‘or’ (e.g. Michelangelo was an Italian painter, sculptor, and architect).  Some believe it should be used and others don’t, so the usage of it varies.

In this case, three truck drivers sued Oakhurst Dairy in 2014, seeking more than four years’ worth of back overtime pay that they had not been paid. Maine law requires workers to be paid 1.5 times their normal rate for each hour worked after 40 hours, but it also identifies certain exemptions, as noted in Maine state law, which says (in Exemption F) that overtime rules do not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

So, does that mean overtime rules don’t apply to packing for shipment and they also don’t apply to distribution?  Or does it mean that overtime rules don’t apply to packing, for shipment or distribution?

The district court ruled the former, which interpreted the law as excluding those involved in distribution (e.g., truck drivers) from overtime pay.  The drivers appealed, and in a 29-page court decision handed down on Monday, the First Circuit Court of Appeals reversed the District Court’s grant of partial summary judgment to the defendant.  Referring to the language as “ambiguous”, the Court stated:

“Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the standalone activities that Exemption F covers – a contention about which the Magistrate Judge recognized possible ambiguity – the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.”

The amount at stake could be as much as $10 million.  Thanks to the absence of an Oxford comma, those truck drivers may yet recoup that amount.

So, what do you think?   Can you think of any other cases that may have turned on punctuation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy St. Patrick’s Day!!

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.