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Electronic Discovery

For Your Project to Succeed, You May Need To Be a “Debbie Downer”: eDiscovery Best Practices

Everybody knows somebody like this.  In eDiscovery terms, it might sound like this:

“The zip file will probably be corrupt and we’ll probably have to spend a lot of time trying to repair it.”  WOMP WOMP!

Or this:

“We’ll probably have a lot of turnover with the review staff and we won’t get the review done by the deadline.”  WOMP WOMP!

Let’s face it, most of us would prefer to be positive about how our eDiscovery projects will turn out (not to mention about life in general).  But, problems happen in life and, unfortunately, in most litigation projects as well.  If you’re not willing to look at the bad things that could happen and create a plan to avoid them, your project could be derailed and you could wind up spending more than is necessary, missing deadlines, or both.

That’s where a “pre-mortem” comes in.  Like a “post-mortem” enables you to correct problems encountered after the fact for the future, a “pre-mortem” enables you to anticipate problems in the first place and create a plan to prevent those problems from happening.  On many projects that I’ve worked on, we’ve conducted a “pre-mortem” to brainstorm what can go wrong (i.e., the risks) and identify a plan for mitigating each of those risks up front, then revisit regularly (typically, weekly if not more frequently) to monitor the plan for proactively addressing each risk.  This exercise can avoid a lot of headaches during the project.

Potential problems can happen throughout the discovery life cycle, so the “pre-mortem” list of potential problems will often evolve over the course of the discovery process.  Here are a couple of examples:

  • Data anomalies and exception files will slow down processing and cause us to fall behind in preparing data for review: As we noted over six years ago(!), exceptions are the rule and you will frequently encounter exception files that cannot be processed (or require considerable effort to process). Some “pre-mortem” steps to address this issue are to: 1) proactively discuss (and hopefully agree) with opposing counsel on how to handle these files in a manner that minimizes the time to attempt to correct those files and 2) establish a procedure for setting aside these files (when possible) while loading the remaining problem-free data.  Removing these potential roadblocks to getting data ready for review will help keep the discovery process moving and on schedule.
  • Review will take longer than anticipated and we will miss the production deadline: There are several measures that can be utilized to avoid this issue, including: 1) obtaining as much information about your document collection as possible up front, including number of documents, how many emails and attachments you have, how many domains those emails represent and also how many email conversations are encompassed with those emails, etc.; 2) prepare complete and clear review instructions for your attorney reviewers; 3) estimate the number of reviewers and expected throughput for review; 4) conduct a pilot review with a few reviewers to compare actual results to estimates and adjust estimates (and review instructions) accordingly; 5) exceed (at least slightly) the number of estimated reviewers to provide some leeway and 6) monitor progress daily and adjust quickly if productivity starts to fall behind.

By identifying what could go wrong up front, creating a plan to avoid those issues and monitoring the plan regularly to proactively address each risk, you can keep those problems from happening in the first place.  You may generally be an upbeat person who even “wears rose colored glasses” from time to time, but you may need to find your inner “Debbie Downer” at times to help your project succeed.

So, what do you think?  Do you put your “Debbie Downer” hat on at the beginning of your project?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image © NBC Universal

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.

Is This the Age of Technical Competence for Attorneys?: eDiscovery Trends

Last year, I led off the year with a post declaring that the age of eDiscovery automation is upon us (even with an exclamation point for emphasis!).  Was that the case?

Well, in the past year (or so), we’ve seen an even more broad acceptance of Technology Assisted Review (TAR) with the first UK case law to approve the use of TAR.  Sure, there is still some dispute about the technology and acceptance of TAR (and sometimes how it is presented), and the machine learning technology at the core of TAR may be at the “Peak of Inflated Expectations”, but it’s clear that TAR is here to stay, even as the technology and approaches around it evolve.

With regard to SaaS automation technology, we’ve seen significant investment by venture capital firms in providers like Logikcull and Everlaw and we’ve also seen “big boys” like kCura, Ipro and Thomson Reuters make significant SaaS and automation announcements.  Not to mention the emergence of other SaaS automation providers like CloudNine (you knew I’d mention us in there somewhere, right?).  With the continued evolution of TAR technology (and acceptance of that technology) and the emergence of SaaS automation alternatives, it’s clear that automation is already changing the eDiscovery landscape in a big way.  And, that doesn’t even consider the growing impact of automated data discovery prior to litigation, which is another trend that I think you’ll see have a significant impact on the market in the coming years.  So, I was right.  ;o)

However, for automation technology to really have an impact, the users of that technology need to really understand that technology and its benefits and we’ve discussed numerous times on this blog how attorneys are lacking in their understanding of technology.  This thought has been reinforced by many of the thought leaders we’ve interviewed over the years who have discussed how disappointed they are with the rate of adoption of technology by the legal industry.  In particular, Craig Ball likened it to the melting of the glaciers, then observed that, because of global warming, the glaciers might be melting faster than attorney adoption of technology.  Will lawyers ever “get” the technology?

Maybe they’re finally being forced to do so.

In 2012, the American Bar Association formally approved a change to Model Rule of Professional Conduct 1.1 to clarify that attorneys not only have a duty to be competent in practice of law, but also in technology with Comment 8 to the rule which reads: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” {emphasis added}

Then, in 2015, California adopted Formal Opinion 2015-193, which stated that “[a]ttorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery”, noting that an attorney lacking the required e-discovery competence must either learn it, consult with someone who knows it or decline the client representation.

Now, over half of the states – at least 26 in all – have adopted some requirement (or at least guidance) for technical competence by attorneys.  And, we now have our first state – Florida – which late last year actually mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year.  Will that start a new trend of states requiring technology CLE?  We’ll see.

Regardless, it’s clear that the trend is toward more and more states expecting licensed attorneys to have some level of technology competence.  As my boss likes to say, “you can get on the bus, or get run over by the bus”.  (Yep, I know I used that statement last year when discussing adoption of automation technology – I guess I need to get some new material…)

With that in mind, it’s important to stay on top of best practices and trends regarding technology in the legal industry to meet your state’s technology competence requirement.  Your state may not currently have such a requirement, but (based on recent trends), it could be coming.  One way to do so is via reading, so if you’re a regular reader of our blog, congratulations!  You’re already doing something to boost your technology competence level by learning about eDiscovery best practices, trends and key case law decisions.

Another way is through training and CLE events, either in-person or via webinar, where you can learn about technology and possibly satisfy your CLE requirements (even if you don’t live in Florida).

To help in that endeavor, CloudNine is sponsoring a webcast on Wednesday, January 25th at noon CT (1pm ET, 10am PT) titled What Every Attorney Should Know About eDiscovery in 2017 via the BrightTALK network.  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 key terms, the eDiscovery life cycle, rules, duties, and case law which can give you tools and resources necessary to efficiently and effectively meet challenging discovery obligations that you’ll face this year.

To sign up for the webcast, click here.

I should note that we are currently working on CLE accreditation for the webcast in at least a couple of states and I will provide updates on this blog as we obtain approval for each state.  Regardless, it’s a terrific overview of eDiscovery concepts and I hope you’ll join us.

So, what do you think?  Do you think we’re finally entering an age of technical competence for 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.

Plaintiff’s Intentional Deletion of Emails to Competitors Leads to Order to Produce Gmail Account: eDiscovery Case Law

In Cohn et. al. v. Guaranteed Rate, Inc., No. 14-9369 (N.D. Ill., Dec. 8, 2016), Illinois District Judge John Robert Blakey granted in part and denied in part the defendant’s motion to compel discovery, for spoliation sanctions, and to extend the discovery deadline, finding that the defendant’s request for dismissal of the plaintiff’s claims and entry of default judgment or issuance of an adverse inference instruction was “not commensurate with the harm implicated here”, opting instead to require the plaintiff to provide full access to her Gmail account to the defendant.

Case Background

In this breach of contract case, the plaintiff was originally hired by the defendant in 2012, which also purchased the assets of the plaintiff’s company.  Part of the employment agreement executed by the plaintiff “expressly prohibited” her from using or disclosing confidential information or from soliciting employees or customers of the defendant.  By November 2013, the relationship between the parties had deteriorated, with the plaintiff referencing an expected lawsuit and indicating that she had retained counsel over perceived breaches of the agreement by the defendant; the plaintiff’s counsel also sent a letter to the defendant in February 2014 regarding those perceived breaches.  In turn, the defendant’s counsel sent letters to the plaintiff, also threatening litigation.  The plaintiff left the defendant’s employment in August 2014 and filed suit against the defendant in November 2014.

The defendant requested documents from the plaintiff (including emails from her Gmail and LinkedIn accounts) reflecting the plaintiff’s communications with any of the defendant’s competitors.  The plaintiff responded that, to the extent documents responsive to those requests existed, they would be produced; however, she did not produce a single message from her Gmail account with any of those competitors.

The plaintiff’s failure to produce this material forced the defendant to serve third party discovery requests on a number of its competitors, and those competitors’ document productions contained numerous messages to and from the plaintiff that she had never produced.  In conversations with one competitor, the plaintiff “ask[ed] that [they] turn to [her] gmail account” and she instructed the competitor to “Hide the info I sent was [sic] the max that my atty will allow—well actually more. I simply cannot put more in writing.”  The plaintiff also instructed her subordinate to begin communicating using their personal email addresses and to “delete our grate [Guaranteed Rate] emails to permanent tras[h].”

The defendant filed the present motion, requesting the dismissal of the plaintiff’s claims, entry of default judgment, or the issuance of adverse inference instructions at trial. Alternatively, the defendant requested native production of the plaintiff’s entire Gmail account, production of her Gmail log-in and password credentials, production of her work and personal computers to enable pursuit of a forensic inspection, and issuance of an injunction preventing the plaintiff from altering, destroying, or modifying any evidence in any way.  The plaintiff, in responding, admitted that she “deleted the subject emails with third-parties from her personal Gmail account in November of 2013, April-June of 2014, and July of 2014.”

Judge’s Ruling

Relying on Federal Rule 37(e) and considering the plaintiff’s duty to preserve, Judge Blakey stated “The Court finds that Cohn had a duty to preserve her communications with GRI’s competitors by at least November 30, 2013. By that point Cohn was making explicit references to legal action against GRI and its officers, and she had retained the attorney who represents her in this lawsuit…She was also making overtures to certain of GRI’s competitors by that time…In light of those facts and her clear obligations under the APA and BMA, Cohn and her counsel should have been able to ‘foresee’ by November of 2013 that her communications with GRI’s competitors ‘would be material (and thus relevant) to a potential legal action.’”

Judge Blakey also referenced the plaintiff’s admission of email deletions as “an obvious breach of her duty”.  As for proof of harm suffered by the defendant, Judge Blakey indicated that the “prevailing rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for its destruction.”  And, Judge Blakey, referencing the plaintiff’s instructions to one of the competitors to “hide the info” she sent, ruled that the information was deleted in bad faith.

With regard to remedy, however, Judge Blakey ruled that “GRI’s request for the dismissal of Cohn’s claims and entry of default judgment is not commensurate with the harm implicated here”, ordering instead “that, at a minimum, GRI must be given full access to Cohn’s Gmail account.”  He also denied the defendant’s request for an adverse inference instruction without prejudice, hoping the production of Cohn’s full Gmail account will “obviate the need for such instructions”.

So, what do you think?  Did the court go far enough in its sanctions?  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 Where You Can Get a Complete List of eDiscovery Events for 2017: eDiscovery Trends

How many eDiscovery related events are happening in 2017?  You might be surprised as to how many there are, but, the good news is that you can get a complete list of them below.

Thanks to Rob Robinson’s terrific Complex Discovery site, you can get a “non-comprehensive” list of planned eDiscovery-related industry events for 2017.  From The Sedona Conference Working Group 11 Annual Meeting for 2017, later this month on January 16 & 17 in St. Pete Beach, FL to the third annual E-Discovery Day on December 1 (like it was the last two years), there are at least 43 total events scheduled for this year.

Here’s a few highlights:

  • LegalTech 2017 (now part of LegalWeek, The Experience) will be held at the New York Hilton from January 31 thru February 2. As usual, eDiscovery Daily will be there and we are planning to conduct our seventh annual thought leader interview series at LTNY again this year!
  • ABA Techshow 2017 will be held at the Chicago Hilton on March 15 thru 18.
  • The Spring EDRM Workshop will be held at the Duke Law School (in Durham, NC) from May 15 to 17.
  • The Masters Conference is scheduled to be held in five venues this year: San Francisco on April 25, Chicago on May 23, Denver on June 20, New York City on July 18 and Washington DC on October 23.
  • ILTACON 2017 is scheduled to be held in Las Vegas from August 13 thru 17. Vegas baby!

As you can see, there’s a lot to look forward to this year.  Make sure you get credit for all of those frequent flyer miles!

So, what do you think?  Which events are you planning to attend 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.

WHY I Do What I Do: eDiscovery Reflections

It’s a rare two post day for us here at eDiscovery Daily.  To check out the other post today, click here.

One of the things I like most about working at CloudNine is the company culture and one of the things that has been instrumental in defining and shaping our company culture is our company book club.  We’ve reviewed and discussed several books over time that have helped us define our core values and refine our mission statement (e.g., Good to Great, by Jim Collins).  We’ve also discussed how to strive to create an amazing experience for our clients (The Cult of the Customer, by Shep Hyken), which was one of the factors behind deciding to rename our company as “CloudNine” back in 2011 (as in putting our clients “on CloudNine”, get it?).

Earlier this week, we concluded reading and discussing the book Start with Why (by Simon Sinek) where he talks about starting with “WHY” we do what we do and how organizations (such as Apple, Harley Davidson and Southwest Airlines) that have established a clear “WHY” they do things have succeeded.  He even discussed how the leaders of those organizations had their respective “WHY” instilled in them early, such as Steve Jobs and Steve Wozniak, who grew up in Northern California during the Vietnam War era when young people rebelled against the idea of government control over their lives.  Sinek talks about how Jobs and Wozniak created Apple with an idea of giving power to the individual – a “WHY” which has enabled Apple to establish an almost cult-like loyalty by users of Apple products.

During book club discussion, we related the topic of “WHY” we do things back to our own company and what CloudNine is all about, which is to Simplify the Discovery Process.  That’s our mission statement and our CEO, Brad Jenkins, relayed a story about the first major project our company worked on – a 10,000 box scanning project with locations all over the country early in our company’s history (we were founded back in 2002 when large scanning projects were much more common).  Back then, the client wanted an easier way to retrieve images without having to resort to using hundreds of CDs, so that led to development of the original version of the CloudNine platform to simplify that process by enabling clients to retrieve those images online more effectively.

Simplifying the discovery process has been a continual emphasis over our 14 years of existence ever since and we do that through our discovery automation technology, our professional services and through education (via resources like this blog and webinars).

Reading books like Start with Why can be thought-provoking and discussing the book in book club got me thinking about WHY I do what I do and how it fits in with our company WHY.  What I realized is that my entire career (even my college education where I chose a management information systems concentration for my business degree from Baylor University, because I wanted to maximize the usefulness of information using technology) has been focused on simplifying processes and since the majority of my career has been in litigation support and eDiscovery, that focus has been directed toward simplifying the discovery process.

Here’s an example: Back in the late 80’s (yes, I am that old), I worked on a project where the team developed a Computer Assisted Retrieval system – for microfilm.  The client had millions of pages on microfilm cartridges and a database to track them all, but it was very cumbersome to locate and print each document image for production purposes.  The application that was developed was designed to take the list of documents retrieved from a search (which was exported to a list and then imported into the application), connect to an attached microfilm reader-printer, prompt the operator to insert the first microfilm cartridge and then print the selected images off of each cartridge. Each page on each microfilm cartridge had a mark and the application counted the marks as the reader printer advanced through the roll to locate the correct page(s) for printing.

The application was very cool for its time, when it worked (it could be a bit temperamental at times).  I even wrote an article about it back then, which was published in a legal tech newsletter (good luck finding a copy).  Regardless, it was instrumental in streamlining the process for retrieving documents retrieved by a database search for this particular client.

Over the years, I’ve provided a number of consulting, management and professional services to clients, all of which helped them simplify the discovery process in some way or another (admittedly, most of those projects weren’t as cool as the project I described above).  As a result of discussing our company “WHY” in book club, I realized that my own “WHY” has mirrored the company “WHY” – long before I joined the company 6 1/2 years ago (or even before the company was founded 14 years ago).

The holiday season can be a time for reflection and, as I reflect this holiday season, I consider myself lucky and blessed.  Lucky and blessed to enjoy doing what I do, lucky and blessed to work for a company whose mission statement reflects what I enjoy doing and have been doing for 25+ years.  Aside from that, I consider myself most lucky and blessed to have my wonderful wife Paige and our terrific kids Kiley and Carter in my life.

I hope each of you are lucky enough to have a job where you get to do what fits your “WHY” and blessed to have wonderful people in your lives and I thank each of you for reading our blog.  Happy Holidays from CloudNine and, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily is taking a break for the holidays and will return on Tuesday, January 3.

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.

Missed the eDiscovery Business Confidence Webinar? Here is Where You Can Still Check it Out: eDiscovery Trends

It’s a rare two post day for us here at eDiscovery Daily.  To check out the other post today, click here.

On Wednesday, ACEDS hosted a webinar (sponsored by CloudNine) where we discussed results from the Fall 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  Did you miss it?  Here’s where you can still check it out.

During the one hour presentation and discussion led by ACEDS Executive Director Mary Mack and me, the expert panelists discussed the results of this quarterly survey, breaking down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends. Participants in the webinar included the following eDiscovery leaders:

  • George Socha, Co-Founder of EDRM and Managing Director at BDO Consulting;
  • Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI;
  • Zach Warren, Editor in Chief of Legaltech News;
  • David Horrigan, E-Discovery Counsel and Legal Content Director at kCura;
  • Jennifer Johnson, Vice President at Commonwealth RICOH

If you want to check out the webinar and/or download a copy of the slides, click here.  And, look out for the Winter 2017 survey coming to the Complex Discovery site in January!  Of course, we’ll remind you when it’s live, so no worries… :o)

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Was Spoliation Intentional? Court Will Let Jury Decide: eDiscovery Case Law

In Cahill v. Dart, No. 13-cv-361 (N.D. Ill. Dec. 2, 2016), 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.

Case Background

In this case involving state claims for false arrest and malicious prosecution and a federal claim for violation of the Fourth Amendment, the plaintiff was initially arrested on December 15, 2011 by police officers with the Cook County Sheriff’s Office, for driving on a suspended license.  He was transferred to the lockup for processing and patted down by one of the officers, who claimed that he saw the plaintiff drop a small, tissue-wrapped, white package to the floor which turned out to be cocaine.  The plaintiff denied that he dropped the package and denied that he was ever in possession of cocaine, but was charged with possession based on the officers’ accounts.

There were surveillance cameras present and the plaintiff’s criminal defense attorney acted quickly after the arrest to attempt to obtain all video footage of his client’s time at the lockup, sending a subpoena to the Sheriff’s Office and also the County legal department.  A lieutenant with the Sheriff’s Office also took action to preserve the video, submitting a hold request shortly before the video was scheduled to be destroyed.  Despite that, the video was initially thought to have been destroyed, but some of it was preserved, but only after the package had already been dropped.  After viewing the video, the Assistant Cook County State’s Attorney handling the case concluded that the state would not be able to prove the charges against the plaintiff and dismissed the charges. The plaintiff then brought this lawsuit.

In his Motion for Sanctions for Spoliation of Evidence, the plaintiff contended that the defendants had a duty to preserve the entire video footage and intentionally failed to do so because the video would have proven his innocence, by showing that someone other than him dropped the cocaine.  The plaintiff’s motion proposed sanctions ranging from default judgment to an adverse inference instruction, a prohibition on defendants’ use of certain evidence and attorney fees related to the filing of the motion.

Magistrate Judge Cox held a hearing on the motion and heard from numerous witnesses, including James Collins, the technician who had provided a copy of the video.  In her Report and Recommendation, Judge Cox concluded that (1) Defendants were under a duty to preserve the evidence; (2) their allowing the video to be destroyed was grossly negligent, though not intentional based on the evidence presented; (3) Cahill “suffered substantial prejudice” from the loss of this “essential” evidence; and (4) a sanction was appropriate, which was determined to be to bar Defendants “from making any arguments or presenting evidence stating that the lost portion of the videotape showed Plaintiff dropping cocaine on the Maywood Lockup floor, including, but not limited to, Collins’s notes or any testimony from Collins relating to what he saw on the video other than the portion of the video that was preserved.”  In response, the plaintiff filed timely objections, arguing that the sanction Judge Cox recommended was insufficient to counter the prejudice he will suffer from the loss of video that he says would have shown someone else dropping the cocaine.

Judge’s Ruling

Judge Lee indicated that the defendants proposed that the jury should be informed simply “that only a portion of the video exists,” and each party should then be allowed to present “their theory of what is on the missing video”, but that suggestion was at odds with Judge Cox’s Report and Recommendation.  So, “having conducted an independent review”, Judge Lee adopted Judge Cox’s Report and Recommendation “with modifications”, concluding that, “at the very least, the jury should be informed that the video is missing because Defendants failed to fulfill their duty to preserve it.”

As for whether the plaintiff was entitled to the adverse inference instruction he seeks, Judge Lee stated that “[a]lthough the Court disagrees with Judge Cox that Cahill presented no evidence of intent, the question is a close one.”  Because “evidence not directly tied to the fate of the video could nevertheless illuminate Defendants’ intent regarding the video”, Judge Lee decided that “that the best course is for the jury to decide the question of intent.”

As a result, Judge 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.

So, what do you think?  Should juries be left to decide whether spoliation of evidence is intentional?  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 Hear Experts Comment on the State of eDiscovery Business Confidence: eDiscovery Trends

Last week, we covered results from the ACEDS and Complex Discovery Fall 2016 eDiscovery Business Confidence Survey, which was conducted last month with the results published on Rob Robinson’s terrific Complex Discovery site.  There’s even a Canadian breakdown (which sort of sounds like Canadian bacon when you say the words out loud) here.  Today, you can attend a webinar to hear experts comment on the results of the survey and their thoughts about the state of eDiscovery business in general!

This time, there were 113 total respondents to the survey, which is over 100 respondents for the second straight quarter.  Continued sponsorship from ACEDS and promotion from EDRM, strong>LTPI, Masters Conference, kCura and Women in eDiscovery and new Canadian sponsor Commonwealth Legal (not to mention us here at CloudNine) has helped continue to keep the number of respondents high.

At 1:00 pm ET today (12:00 pm CT, 11:00 am MT, 10:00 am PT), ACEDS will be hosting the webinar (sponsored by CloudNine) regarding the survey.  During this one hour presentation and discussion led by ACEDS Executive Director Mary Mack, expert panelists will share and discuss the results of this quarterly survey. The discussion will feature eDiscovery leaders including:

  • George Socha, Co-Founder of EDRM and Managing Director at BDO Consulting;
  • Eric P. Mandel, Managing Member at Indicium Law PLC and Member of the Board for LTPI;
  • Zach Warren, Editor in Chief of Legaltech News;
  • David Horrigan, E-Discovery Counsel and Legal Content Director at kCura;
  • Jennifer Johnson, Vice President at Commonwealth Legal

And me, of course.  We will not only take a look at this survey in general, we will also break down the results within different response groups (e.g., providers, law firms, corporations, etc.) and compare the results of this survey to those of past surveys to discuss changes in trends.

Click on the link here to register for the webinar.  Hope to see you there!

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.