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Electronic Discovery

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

With No Intent or Duty to Preserve, Court Finds No Spoliation Occurred: eDiscovery Case Law

In Archer et. al. v. York City School District, et. al., No. 13-2826 (M.D. Pa., Dec. 28, 2016), Pennsylvania District Judge John E. Jones, III ruled that the plaintiffs had presented no evidence showing that the defendants acted with intent when they deleted the email account of the former Assistant Superintendent, nor had a duty to preserve arose prior to the deletion of the account.

Case Background

In this case brought forward in November 2013 by a group of students and parents suing the defendants to protest the decision not to renew their school’s charter based upon the performance of the school and the hardship on the city’s budget, the defendants filed a Motion for Summary Judgment.  In their opposition to the summary judgment motion, the plaintiffs alleged that the defendants spoliated evidence when they deleted the email account of former assistant superintendent Perry-Cross, who retired in February 2012.  Her email account was deleted afterward, with the defendants suggesting that this may have occurred as soon as ninety days after, while the plaintiffs alleging that her emails were “purged sometime after 2012” (though they failed to provide any evidence that pointed to this timeline).

The parties agreed that the first two elements of spoliation – that the emails were within the defendants’ control and they were relevant to the claims of the instant case – were not at issue.  But, the defendants disagreed with the last two elements, arguing that the emails were deleted as a matter of course, so the defendants were not attempting to suppress evidence and further arguing that at the time the emails were deleted, there was no reasonably foreseeable duty to preserve the account.

Judge’s Ruling

With regard to intent to destroy evidence, Judge Jones stated: “Plaintiffs here have presented no factual basis whatsoever in support of their allegations that Defendants’ intended to destroy evidence helpful to Plaintiffs’ claims. Rather, the District’s policy of purging former employees’ email accounts within ninety days, and the fact that litigation did not commence until well over a year after Defendant Perry-Cross left the District and potentially over a year after the deletion occurred amounts to evidence supporting the opposite conclusion. Defendants also point to their swift and prompt reaction to turn over newly discovered evidence in the form of another District employee’s email account after previously believing it was deleted…This compilation of evidence, taken as a whole, leads the Court to conclude that Plaintiffs have failed to support their allegation that Defendants acted with intent to spoil evidence when they deleted Defendant Perry-Cross’s email account.”

With regard to the defendants’ duty to preserve, Judge Jones stated: “Plaintiffs attempt to persuade the Court that ‘[t]here can be no credible argument that the defendants were not aware that the disruption of 700-800 children and tens of millions of dollars would not produce litigation’ such that Defendants should have been on notice of their duty to preserve Defendant Perry-Cross’ email account…We disagree. Plaintiffs’ argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ‘pending or probable.’”

Finding that the plaintiffs “have failed to establish both the third and fourth elements of spoliation”, Judge Jones found that their allegation of spoliation had no merit and granted the defendants’ Motion for Summary Judgment in its entirety.

So, what do you think?  When did the duty to preserve data begin?  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

Court Orders Plaintiff to Produce Emails with Original Metadata: eDiscovery Case Law

In Singh et. al. v. Hancock Natural Resources Group, Inc. et. al., No. 15-1435 (E.D. Cal., Dec. 29, 2016), California Magistrate Judge Jennifer L. Thurston granted the defendants’ motion to compel (in part), ordering the plaintiffs’ to “produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer”.

Case Background

In this breach of contract case over the sale of farmland, the defendants requested email communications in TIFF format with the corresponding metadata.  The plaintiff produced TIFF formatted emails, but only after they had been forwarded from the subject computer to the office of the former attorney for the plaintiffs, rendering the metadata “wholly useless and irrelevant because it pertains to the forwarded versions of the emails to Plaintiffs’ counsel’s paralegal, not the original emails between Plaintiffs and Hancock.”

The defendants argued that the metadata from the native versions of the email was crucial because it appeared that the plaintiffs produced key emails that were changed when compared to the same emails directed to the recipient.  According to the defendant, some emails appeared to have been “whited out” from the plaintiffs’ versions, and in other instances new and different text had been inserted into Plaintiff’s versions.  In one example, the plaintiffs’ copy of an email stated that the defendant’s representative indicated (apparently, when discussing a document related to the sale) that “It’s Acceptable.”  The one produced by the defendant did not have this language.

Regarding the inconsistencies, the plaintiff’s only argument was that their attorney (who had since been replaced) explained that he did not have any experience in eDiscovery and was working with a computer specialist to correct the problem.

There was also a dispute over whether the defendants had actually ever sent an email with a signed copy of the sales agreement.  The plaintiffs provided a standalone PDF copy of the sales agreement signed by the plaintiff (with no supporting metadata) and an email from the plaintiff, sending an unsigned version of the agreement.

Judge’s Ruling

With regard to the forwarded emails produced with incorrect metadata, Judge Thurston ruled “In light of the significant showing as to the importance of the metadata from the native computer, the Court GRANTS the motion. Thus, the motion to compel as to any request for electronically held documents is GRANTED. Within ten days, the plaintiffs SHALL produce all emails and other documents sought by the defendants in the format demanded with the accompanying metadata from the native computer.”

Observing that the defendants were arguing that the email that discussed the sales agreement included an unsigned, draft copy of the agreement and that the plaintiffs had failed to provide an email which supported that the plaintiff sent an executed, final copy of the sales agreement, Judge Thurston ordered the plaintiff to “provide all responsive emails and documents… in the format demanded and with the accompanying metadata from the native computer.”

So, what do you think?  Would a native file production have eliminated the 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.

Thursday LTNY 2017 Sessions: eDiscovery Trends

As noted yesterday and Tuesday, LegalWeek 2017 – which includes of course the marquee event LegalTech® New York (LTNY) – is happening this week and eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  This is the last day to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and at least 182 exhibitors providing information on their products and services.

While at the show, we will (for the seventh year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2017 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

American Lawyer Media (ALM) has redesigned their site so that all three days are on a single page, so you can’t really perform a “find” anymore to get the number of hits for “discovery” or “information governance” for the day.  Nonetheless, based on Monday’s post, there is still plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:30 AM:

E-Discovery for Investigations and Criminal Matters

Traditionally, e-discovery has been a part of complex commercial litigation, but as electronically stored information becomes a ubiquitous part of everyday life, the frontiers of e-discovery are expanding to new areas of law and corporate governance.  These areas include the expanded use of e-discovery in investigations and criminal matters.  Join us for this session as speakers from government and private practice discuss these growing fields in e-discovery.

Speakers to include: Moderator: David Horrigan, E-Discovery Counsel & Legal Content Director, kCura; Panelists: Edward J. McAndrew, Partner, Ballard Spahr, Xavier Rodriguez, United States District Judge, Western District of Texas, Ronald Sharpe, U.S. Attorney District, Virgin Islands, Stan Stampson, Senior Counsel, The World Bank.

Update on Effects of Brexit on Privacy and Data Protection Considerations

Now that Brexit is a reality, organizations doing business or even serving customers in the United Kingdom are struggling to understand which data protection requirements they should follow and how. Technically the General Data Protection Requirements (GDPR) of the European Union will no longer apply to the UK. So what are organizations supposed to do if they are doing business not only in the UK but also in other EU countries? In this session, a panel of experts will walk the audience through the salient UK requirements, as well as the salient GDPR requirements.

Speakers to include: Moderator: John Isaza, Partner, Rimon PC; Panelist: Richard Hogg, Global InfoGov Solutions Leader, IBM, Jason C. Stearns, Director – Legal & Compliance Group, BlackRock, Jill M. Williamson, Counsel, Rimon PC.

12:30 – 1:30 PM:

New Frontiers for International e-Discovery

Cross-Border e-discovery has always presented challenges for practitioners and clients alike.  With the increase in data privacy and protection requirements around the globe, Brexit in the United Kingdom, the upcoming EU General Data Protection Regulation (GDPR), the demise of the EU-US Safe Harbor, and the uncertain future of the EU-US Privacy Shield, these challenges are only growing.  To prepare for the future of international e-discovery, hear this panel of US and international legal experts discuss ways to navigate the new frontiers of international e-discovery.

Speakers to include: Moderator: Steve Couling, Vice President of International Sales, kCura; Panelists: Chris Dale, Founder, eDisclosure Information Project,  Karyn Harty, Partner, McCann Fitzgerald, Davin Teo, Managing Director Forensic Technology, Alvarez & Marsal Disputes & Investigations Limited, David Horrigan, E-Discovery Counsel & Legal Content Director, kCura.

Data Disposition Strategies from the Trenches

Despite advances in technology and legal clarifications, organizations continue to struggle with hitting the delete button on back-up tapes. This is due in part to a grave misunderstanding of where the law currently stands on the issue, as well as legitimate concerns about inadvertent spoliation or the perception that it was intentional. In this session, without naming names, a panel of experts will walk the audience through the legal methodology and thought processes used to help clients reach a studied and vetted decision to finally hit the delete button.

Speakers to include: Moderator: John Isaza, Partner, Rimon PC; Panelist: Richard Hogg, Global InfoGov Solutions Leader, IBM, Jason C. Stearns, Director – Legal & Compliance Group, BlackRock, Jerry Cohen, Partner, Burns & Levinson LLP.

Stop the Lip Service: Real Advocacy Under the Federal Rules

While counsel has been overrun with news that the Federal Rules of Civil Procedure have changed – very little guidance has been provided to in-house counsel and large data holders on how to leverage the 2015 Amendments to prevent discovery side-shows that waste time and drive costs.  This program will discuss how to use the new rules to your organization’s advantage in litigation, including effectively negotiating scope in discovery, cutting short unduly burdensome and disproportionate requests; and re-scoping preservation requirements with concepts of proportionality. Hosted by the Electronic Discovery Institute.

Speakers to include: Moderator: Zach Warren, Editor-In-Chief, Legaltech News; Panelists: Jamie Brown, Consulting Attorney – Law and Technology, Barclay’s, Patrick Oot, Partner, Shook, Hardy & Bacon, LLP, Robert Owen, Partner, Sutherland, Asbill & Brennan, LLP, George Socha, Managing Director, BDO Consulting.

2:00 – 3:00 PM:

The Future of e-Discovery Law, Business, and Practice

In this final session of Legaltech New York 2017, members of the bar and bench and industry analysts predict the future of e-discovery, including how the law will change, how the industry will change, and how law firms and corporations will deal with exploding data volumes in the coming decades of the 21st Century.

Speakers to include: Moderator: David Horrigan, E-Discovery Counsel & Legal Content Director, kCura; Panelists: Monica Bay, Fellow, CodeX: The Stanford Center for Legal Informatics, Dennis Garcia, Assistant General Counsel, Microsoft, James Francis IV (S.D.N.Y), United States Magistrate Judge, Daniel Martin Katz, Professor, Illinois Tech – Chicago Kent College of Law, Andrew Jimenez, CEO, Fronteo USA.

Social Media: Ethics and Records Considerations

Social Media presents a host of challenges for organizations, not the least of which involve its impact on legal ethics and records retention considerations. John Isaza will lead a panel of experts and walk the audience through legal ethics implications arising from a social media presence, including best practices on how to address those ethical concerns. A related topic of discussion will be the records that could arise from social media, including best practices on how to declare, classify and manage the resulting records.

Speakers to include: Moderator: John Isaza, Partner, Rimon PC; Panelists: Jerry Cohen, Partner, Burns & Levinson LLP, Kevin Fumai, Managing Counsel, Oracle, Jefferey Ogden Katz, Member, The Patterson Law Firm LLC.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today (and for the entire show, since they’re all on one page), click here.

So, what do you think?  Did you attend LTNY this year?  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.

Wednesday LTNY 2017 Sessions: eDiscovery Trends

As noted yesterday, LegalWeek 2017 – which includes of course the marquee event LegalTech® New York (LTNY) – is happening this week and eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and at least 182 exhibitors providing information on their products and services.

While at the show, we will (for the seventh year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2017 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

American Lawyer Media (ALM) has redesigned their site so that all three days are on a single page, so you can’t really perform a “find” anymore to get the number of hits for “discovery” or “information governance” for the day.  Nonetheless, based on Monday’s post, there is still plenty to talk about!  Sessions in the main conference tracks include:

9:00 – 10:00 AM:

The Effects of the December 2015 Amendments to the Federal Rules of Civil Procedure from 3 Perspectives (Judges, Defense & Plaintiff)

Speakers to include: Moderator: Patrick Oot, Partner, Shook Hardy & Bacon; Panelists: Hon. Andrew J. Peck, United States Magistrate Judge, Southern District of New York, Hon. Xavier Rodriguez, United States District Judge, Western District of Texas, Hon. Elizabeth D. Laporte, United States District Court Judge, Northern District of California, Ariana Tadler, Partner, Milberg LLP, Paul D. Weiner, National eDiscovery Counsel | Shareholder, Littler Mendelson P.C.

10:30 – 11:30 AM:

The Data Privacy Landscape: Emerging Laws Affecting Cross-Border Discovery

In this session, a panel of leading eDiscovery experts will offer best practices for navigating the current state of cross-border data transfers unscathed. The panel will evaluate the impact of the General Data Protection Regulation, the EU-US Privacy Shield, blocking statutes and other data localization developments from around the globe, including in Russia, South America and the Asia-Pacific. Panelists will also review differing definitions of privacy in light of recent case law and discuss how they affect organizations’ legal obligations and suggest strategies for implementing safeguards and reducing the risks posed by these developing laws.

Speakers to include: Moderator: Drew Macaulay, Consilio; Panelists: Natascha Gerlach, Senior Attorney, Cleary Gottlieb Steen & Hamilton LLP (Brussels, Belgium), Taylor M. Hoffman, Global Head of eDiscovery Management & Senior Vice President, Swiss Re America Holding Corporation, John Davis, Executive Director and Counsel – Global eDiscovery, UBS, Catherine Castaldo, Global Chief Privacy & Data Protection Counsel, GE Capital.

5 Forces Changing Corporate eDiscovery: What Law Firms Need to Know

Corporate eDiscovery is evolving, and savvy law firms are adapting to new client demands. This session brings together in­house and outside experts to discuss quantitative and qualitative benchmark data from dozens of interviews with AmLaw 200 firms and Fortune 500 companies. Join us for an interactive session that covers real client issues like data security, cloud consolidation, outsourcing, reporting, TAR adoption… and see how corporate legal and outside counsel are actually working with each other in the new model.

Speakers to include: Moderator: Hal Marcus, Director of Product Marketing, OpenText Discovery; Panelists: Ari Kaplan, Ari Kaplan Advisors, Rachelle Rennagel, eDiscovery Special Counsel, Pillsbury, Sharika de Freitas, Senior Manager, Discovery Solutions & Technology, Viacom, Mira Edelman, Discovery Counsel, Google.

3 Situations, 2 Lawyers, 1 Corporation: Using Relativity in a Data Breach, an Investigation & Litigation

Hypothetical scenarios with real-world Relativity workflows. Learn how a fictitious corporation in the financial services sector leverages new document review work streams to assist with three different types of hypothetical legal matters—a data breach response, an investigation, and litigation.

Speakers to include: Moderator: Cathleen Peterson, SVP – Consulting & Advanced Review Services, Kroll Ontrack; Panelist: Bernard (Brian) Hensgenbaugh, Partner, Baker Mackenzie.

1:30 – 2:30 PM:

Finding a New Safe Harbor: Using Technology and 1LR to Comply With Cross-Border Data Privacy Rules

The nullification of the U.S.-EU Safe Harbor Agreement was a shot heard around the legal world. In the vacuum created by the collapse of this framework, and with new data privacy laws continuously emerging, organizations have been struggling to determine how best to proceed with cross-border data transfers for litigation, compliance and regulatory investigations. In this panel, international e-discovery experts will discuss how various approaches to compliance, including tools such as deduplication, predictive coding, automatic redaction and anonymization.

Speakers to include: Moderator: Michael Becker, Consilio; Panelist: Jeff Nass, Senior Counsel – eDiscovery, Boehringer Ingelheim, Ashley Baynham, Partner, Brown Rudnick, Brian Corbin, Vice President & Assistant General Counsel, Legal Discovery Management, JPMorgan Chase & Co.

TAI: Technology Assisted Investigations for the Enterprise

How many lawyers does it take to investigate an email server? Analytics are a force multiplier for modern investigators, empowering lean teams to understand and review millions of documents. Join this session to learn about the expert techniques and tools used by top lawyers, data scientists, and regulators to expedite fact finding, inform decisions, and better support their clients. This session will present practical strategies and real life success stories that you can start replicating right away to find smoking gun emails—or prove the lack thereof.

Speakers to include: Moderator: Adam Kuhn, eDiscovery Attorney, OpenText Discovery; Panelists: Robert Keeling, Partner, Sidley Austin, John Davis, Executive Director and Counsel – Global eDiscovery, UBS, David Yerich, Director – eDiscovery, UnitedHealth Group, Laura Roman, E-Discovery Specialist, New York Stock Exchange, Stephen Medlock, Senior Associate, Mayer Brown.

Mobile Device Investigations: From Android to iPhone and Back

A smartphone from a key employee lands on your desk, what next? Spend 60 minutes with a mobile forensics expert and in-house counsel/IT, who will discuss various scenarios involving forensics and perform a live smartphone acquisition to help you see actual data available that might help an investigation or litigation. Questions that will be answered include: (1) What mobile device data might be helpful during litigation? (2) What common legal and IT challenges are associated with mobile forensics investigations? (3) How do mobile device investigations differ from computer investigations?

Speakers to include: Moderator: Jason Bergerson, Director of Consulting Operations, Kroll Ontrack; Panelists: Rich Robinson, eDiscovery & Information Manager, JCPenney, Michael J. Burg, Corporate Counsel, DISH Network L.L.C., Clifford E. Nichols, Senior Counsel, Day Pitney.

Cost Predictability in eDiscovery:  A Real Innovation That Is Long Overdue

You have already heard it:  ECA, TAR, AI and AFAs are the answers. Despite all the hype, there are legal departments that can control and predict the internal and external contributors to the total cost of eDiscovery. They are doing so in the face of typical uncontrollable variables like the number of custodians in a matter, the number of pages per document that are in a gigabyte of data, and the speed at which documents are reviewed. In this session, our experts go beyond the theoretical and will discuss their first-hand experiences in creating predictable eDiscovery budgets and reducing total eDiscovery costs.

Speakers to include: Moderator: Jamie Berry, Senior Vice President of Questio Operations, UnitedLex; Panelists: Constance Mockaitis, Senior Manager, eDiscovery, AbbVie, Jacob Herstek, Vice President and Senior Legal Counsel, HSBC Bank USA, NA, Judith Beall, Associate General Counsel & Senior Vice President, Bank of America, Ellen Blanchard, Senior Corporate Counsel, eDiscovery, T-Mobile.

3:00 – 4:00 PM:

Global Investigations and Multilingual Data – How to Manage the Risks Presented by Multilingual Datasets

Global businesses speak many languages. While conducting business in multiple languages is necessary and inevitable it also creates grave business risks as some of the most egregious and concerning compliance issues become much harder to detect.  Sound risk management requires an effective approach to reviewing multilingual datasets.  In this thought-provoking session, attendees will get a refreshing flavor for how delightfully complex multilingual reviews can be.  The speakers will illustrate the challenges of searching multilingual data and explain workflow choices for the review of multilingual documents.

Speakers to include: Moderator: Ben Rusch, Consilio; Panelist: Farrah Pepper, Executive Counsel Discovery, General Electric Company, Mark Hjerpe, Partner, Divergent Translations.

Enough Already! Predictive Coding is for Every Matter

Machine learning isn’t just for multi­million document discovery— it’s not even just for discovery. Come learn how continuous machine learning is being used every day for litigation, investigations, due diligence and more as a natural extension of human analysis. No complicated written protocols, advanced project management, or extraordinary involvement by SMEs needed. This session will include a discussion of the latest case law, trends, and perceived “barriers”.

Speakers to include: Moderator: Hal Marcus, Director of Product Marketing, OpenText Discovery; Panelists: Ethan Ackerman, Associate, Morgan Lewis, Kiriaki Tourikis, Vice President, Associate General Counsel, JPMorgan Chase, Dawson Horn, Vice President, Associate General Counsel, AIG Corp, Alexis Mitchell, Principal Data Scientist, OpenText Discovery.

Information Governance – Hindsight is 20/20: A Moderated Debate

It’s an InfoGov showdown! Panelists will debate the merits of taking a reactive approach (“we did the best we could give the situation”) versus applying a proactive model (“you could have been better prepared if you had done this”) in a global discovery matter. This session will provide you with a playbook on how to implement a global Information Governance program, balancing against the practical constraints preventing organizations from making infogov a priority – from people that have lived through both reactive and proactive approaches to discovery.

Speakers to include: Moderator: Tom Barce, Director of Consulting Services, Kroll Ontrack; Panelists: Patrick J. Burke, Senior Counsel, Seyfarth Shaw, Ben Hubble, Manager – Records Management, Wendy’s, Jessica Escalera, Global Head of Legal Discovery Operations, Barclays.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today (and for the entire show, since they’re all on one page), click here.

So, what do you think?  Are you planning to attend LTNY this year?  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.

Welcome to LegalTech New York 2017!: eDiscovery Trends

Today is the start of LegalWeek 2017 – which includes of course the marquee event LegalTech® New York (LTNY) – and, for the seventh(!) year in a row, eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and at least 182 exhibitors providing information on their products and services.

While at the show, we will (as always) be interviewing several industry thought leaders to see what they think are the significant trends for 2017 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

American Lawyer Media (ALM) has redesigned their site so that all three days are on a single page, so you can’t really perform a “find” anymore to get the number of hits for “discovery” or “information governance” for the day.  Nonetheless, based on Monday’s post, there is still plenty to talk about!  Sessions in the main conference tracks include:

12:45 – 1:45 PM:

EDRM & NOT eDiscovery?

For more than a decade, the EDRM framework has served as guidance during the legal discovery process. Today, these principles are being applied in different scenarios and contexts to assist industries with challenges such as data migration, company mergers and acquisitions, divestitures, and more. Join us for an interactive discussion with a global panel of legal, technical, and corporate operational professionals to discuss these unique applications of the EDRM.

Speakers to include: Moderator: Darren Pauling, Managing Director, Forensic Technology, KPMG; Panelists: Seth Eichenholtz, Head of Electronic Discovery, Mastercard, Jeff Sharer, Partner and Co-Chair – Data Law Practice, Akerman LLP, Julie Heller, Global Head of eDiscovery Programs, AIG.

Shielding the Organization from Data Risk & E-Discovery Failures

Data risk can strike an organization from many angles – from external attacks to internal malfeasance to third party negligence – and have real consequences for the e-discovery process.  How do security risks such as data leakage, shadow IT and third party negligence lead to e-discovery failures? And how can organizations eliminate preventable e-discovery mistakes such as failure to preserve, failure to protect and the inadvertent release of privileged information?  Attend this panel to discuss who bears responsibility and how to prevent failures while instituting best practices in light of the latest case law and new federal rules.

Speakers to include: Moderator: Jason Ray, Managing Director, FTI Technology; Panelists: Ignatius Grande, Senior Discovery Attorney, Hughes Hubbard, Jordan Razza, Senior Counsel and Director of U.S. Litigation, Diageo, Matthew Fisher, Global Head of Records and Information Management, Diageo.

2:15 – 3:15 PM:

eDiscovery, the Cloud & Beyond

Join us for a collaborative conversation about strategies, technologies, and workflows surrounding eDiscovery and the Cloud. Our panel of professionals will discuss pre-migration considerations, implications for preservation and collection, the potential to perform “in place” culling, and opportunities for Information Governance and Litigation Readiness. Being able to adapt strategies to the cloud will provide a roadmap for the future while driving down the cost of eDiscovery.

Speakers to include: Moderator: Brett Trizzino, KPMG; Panelists: Thane Vallette, Associate General Counsel, HP, Bonnie Kennedy, eDiscovery Manager, Delta, Jeff Nass, Senior Counsel – eDiscovery, Boehringer Ingelheim.

Corporate Data Assessments: The New Game Changer?

Where do you begin in implementing a data governance and security plan? How to secure executive buy-in? How can you incorporate shifting regulatory frameworks to ensure compliance? What if you plan to move to Microsoft Office 365? How does this impact your broader data management strategy? These are just some of the questions that can stymie and stall corporate data governance initiatives. Increasingly, corporations are shifting to a data assessment model, which can help proactively 1) identify threats, 2) map an organization’s data universe and 3) help identify an action plan that is presentable to the c-suite. Attend this session to learn more about what these data assessments should incorporate, who should be involved, and how you can customize the data assessment to your own organizational needs.

Speakers to include: Moderator: Jake Frazier, Senior Managing Director, FTI Technology; Panelist: Judy S. Lao, Chief Legal Officer, Blackstone Group, Ben Robbins, E-Discovery and Information Governance, LinkedIn, Jenya Moshkovich, Partner, Barnes & Thornburg, Jason C. Stearns, Director, BlackRock.

3:45 – 4:45 PM:

The Future of Analytical Strategies

It’s no secret that company data volumes and the costs to manage them continue to grow at exponential rates. The application of advanced analytical technologies and methodologies are helping company legal departments by providing critical insight into data in effective, timely, and affordable ways. During this discussion, industry professionals will share their strategies and experiences using emerging tools, technologies, and workflows in various combinations to quickly and effectively understand populations of both structured and unstructured data as well as the impact of these approaches on legal departments.

Speakers to include: Moderator: Tom Keegan, KPMG; Panelists: Michelle Six, eDiscovery Counsel, Kirkland & Ellis, Brett Tarr, Counsel-Litigation & E-Discovery, Caesar’s Entertainment, Erick Drobinski, eDiscovery Counsel, Gilead Sciences.

Advice from Counsel: Data and Risk-Intensive Investigations

From corporate fraud and IP theft to regulatory investigations, legal teams are hard-pressed to quickly find, understand and act upon data in investigations. What are some of the strategies that top legal teams use to proactively prepare for data-intensive investigations? Which analytics tools are best suited for uncovering different pieces of information? How can you balance investigative needs with adherence to various data privacy and State Secrets laws? This panel represents the 5th consecutive year FTI will present the results of our annual Advice from Counsel corporate law survey at LTNY. Showcasing case studies and best practices from leading legal teams, this session is one not to miss!

Speakers to include: Moderator: Sophie Ross, Senior Managing Director, FTI Technology; Panelists: Marla Crawford, Vice President, Associate General Counsel, Goldman Sachs, Jessica Ross, Counsel, Deutsche Bank, Kelly Clay, Senior Counsel, GSK, Ari Kaplan, Principal, Ari Kaplan Advisors.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today (and for the entire show, since they’re all on one page), click here.

So, what do you think?  Are you planning to attend LTNY this year?  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.

At LegalTech, Word Clouds are the Word: eDiscovery Trends

For many people (including me), today is a travel day for LegalTech New York (LTNY), er, LegalWeek.  On a day like today, it helps me to have an easy topic to write about.  So, thanks to InsideLegal for a great LegalTech observation!

In InsideLegal’s 2017 Legaltech NY Word Cloud (along with 7 year flashback), written by JoAnna Forshee, the site has generated a word cloud from the LTNY agenda to give an overview of what will be covered in the sessions, which visually displays the words/themes included in the event’s agenda of sessions.  That word cloud is above.

Over the years, I’ve observed that eDiscovery is a front and center theme for the show and based on the word cloud (and my own observations), this year is no exception.  “eDiscovery” (along with “legal” and “data”) are the most popular words in the agenda.  Probably even less surprising is that “Sponsored By” is probably the biggest term after those three (along with “technology”) – so “Sponsored By” is on a par with the term “technology” at a technology show.  Yeah, that figures.

Actually, InsideLegal has been doing this every year since 2011 (hey, that’s the first year eDiscovery Daily started covering the show!) and the post also provides the word clouds for the previous 6 years as well.  In each of those years (except for the first one in 2011), the term “eDiscovery” is at least as big (if not bigger) than any other term in the word cloud.  It’s interesting to see other terms that are big in certain years (such as Information Governance in 2014 and 2015).  Only in 2011 is “eDiscovery” not the top term (in that year the biggest terms were “legal” and “technology” (go figure!), as well as “data”.

So, it certainly appears that, once again, eDiscovery will take center stage at the conference this year.  Starting tomorrow, we will point out sessions related to eDiscovery (and Information Governance), so you can plan on which sessions to attend.

So, what do you think?  Are you attending LegalTech this week?  If not, 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.

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.

Forgetting about the Other Side of the Law is Criminal: eDiscovery Case Law

In our webcast on Wednesday titled What Every Attorney Should Know About eDiscovery in 2017 (if you missed it, you can watch it here), we covered (as we always do) several key cases that established eDiscovery best practices and trends (and a few with litigants behaving badly).  One of the questions from the audience was to ask whether we could provide any eDiscovery case law related to criminal cases.  Apparently, every example we provided was a civil case.

We will have to add in coverage of criminal cases the next time we conduct a presentation like that.  Regardless, I told the audience that I could send them some links to criminal cases we’ve covered if they wanted to send me an email and a few of the attendees did so.  As a result, I performed a search on the blog (after all, it is a knowledge base with the entire 6+ year history of posts) to look for criminal cases that we’ve covered in the past.

Here are seven posts relating to criminal cases – it’s not an exhaustive list, but it does provide at least a sampling of cases that we’ve covered over the years (#7 is my favorite):

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: In United States v. Meredith, Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Court Rules that Judges Can Consider Predictive Algorithms in Sentencing: Score one for big data analytics.  According to The Wall Street Journal Law Blog, the Wisconsin Supreme Court ruled last week that sentencing judges may take into account algorithms that score offenders based on their risk of committing future crimes.

Was Spoliation Intentional? Court Will Let Jury Decide: In Cahill v. Dart, Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Government Ordered to Maintain Expensive Custom Database Shared with Criminal Defendant: In the criminal case of United States v. Shabudin, California Magistrate Judge Nandor J. Vadas ordered the Government to continue to provide access to a Relativity Database used by the parties to review documents produced by the Government, instead of discontinuing access for the defendants several weeks before trial was to begin due to budgetary issues.

Hard Drive Turned Over to Criminal Defendant – Eight Years Later: As reported by WRAL.com in Durham, North Carolina, the defense in State of North Carolina v. Raven S. Abaroa filed a Motion to Dismiss the Case for Discovery Violations after the state produced a forensic image of a hard drive (in the middle of trial) that had been locked away in the Durham Police Department for eight years.

Court Denies Criminal Defendant’s Attempt to Quash Twitter Subpoena: In People v. Harris, Criminal Court Judge Matthew A. Sciarrino, Jr. ruled that the defendant lacked standing to move to quash the prosecution’s subpoena served upon Twitter, a third-party in the case, for records of the defendant’s Twitter account. The defendant was a protester arrested during a march on the Brooklyn Bridge as part of the Occupy Wall Street movement, and in prosecuting the case, the prosecution sought his Twitter records for the time period relevant to the defendant’s involvement in the march.

Free Trojans with Your Document Production: An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.

If you know of a recent criminal case (with eDiscovery implications) that you’d like for us to cover, feel free to send me a link to it and I’ll see about covering it.

So, what do you think?  Do you practice law in criminal courts and feel that there’s not enough discussion about eDiscovery for your cases?  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

Court Orders Plaintiff to Produce Native Format Version of Email Potentially Altered: eDiscovery Case Law

In Lifetouch National School Studios, Inc. v. Roles, No. 3:15-cv-234 (W.D. P.A., Dec. 15, 2016), Pennsylvania District Judge Kim R. Gibson granted the portion of the defendant’s motion to compel associated with the request for the plaintiff to produce all copies of a potentially altered email in native format circulated within its organization or any of its agents.

Case Background

In this breach of contract case, the plaintiff alleged that the defendant had accepted a sales position with a competitor of the plaintiff company (Strawbridge Studios, Inc.) and solicited the plaintiff’s employees and customers in violation of her employment agreement.  During discovery, two different versions of a particular email were produced: one received by a client where the client wrote “Strawbridge[,] No contract.” and the other received by Strawbridge forwarded by an employee (Joseph Segall) of the plaintiff where the client had written “Strawbridge[,] No contract. Beth Roles.”

Both individuals who wrote the emails testified under oath that they did not include the defendant’s name in the emails, leaving the defendant to request leave to amend her counterclaim, alleging that the Strawbridge email was altered by the plaintiff to interfere with her employment at Strawbridge.  The Court granted as unopposed the defendant’s motion for leave to amend.  The defendant then filed a motion to compel production of, among other things, copies of the email in native format from all individuals at the plaintiff’s organization to whom it was forwarded or sent.

Judge’s Ruling

Judge Gibson first commented on the relevancy of the email, stating “Based on Roles’s counterclaims, this information falls within the scope of relevant material. Roles’s counterclaims are premised on the allegation that Lifetouch intentionally altered the August 25, 2015 email. Documents illustrating how that email was circulated within Lifetouch relate to whether Lifetouch did in fact alter the August 25, 2015 email, and—if so—how that alteration occurred.”

When assessing the appropriateness of discovery of the emails, Judge Gibson, noting that the plaintiff appeared to have abandoned earlier privilege objections for the emails, noted “Lifetouch appears to argue that it has already produced enough information regarding the emails. Lifetouch states that Roles ‘already has a copy of the email from Segall to Strawbridge,’ and Lifetouch goes on to explain that it has produced PDF versions of the email and the native form of the email as forwarded from Segall to Strawbridge. Further, Lifetouch argues that ‘a copy of that email in native form is not only unreasonable, but not likely to lead to the discovery of admissible information based on those emails that have already been produced.’”

In response, Judge Gibson said “These arguments are insufficient to avoid discovery. As an initial matter, the fact that Roles already has a copy of the August 25, 2015 email has no bearing on whether Lifetouch altered the email. The relevance of the documents Roles seeks is derived from their circulation within Lifetouch; a complete picture of how the email was received, discussed, and ultimately sent—or even discussed after it was sent—would be relevant to Roles’s claims. Thus, the fact that Roles already has a copy of the email is irrelevant. And Lifetouch’s argument that it should not have to produce these documents because it already produced a copy of the email from Segall to Strawbridge is unpersuasive for the same reasons.”

Judge Gibson also noted that, while arguing that production in native format is unreasonable, “Lifetouch does not explain what about native production would be unreasonable. Furthermore, Lifetouch specifically agreed ‘to produce . . . electronic documents in native format’ in the parties’ Rule 26(f) Report.”

As a result Judge Gibson granted the portion of the defendant’s motion to compel associated with production of the potentially altered email in native format and also ruled that “attorneys’ fees for this portion of Roles’s Motion to Compel are proper” and ordered the defendant to submit an affidavit detailing the attorneys’ fees she incurred in bringing her Motion to Compel.

So, what do you think?  Was it appropriate to order production of the email in native format?  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.