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Electronic Discovery

Accessing Your Former Company’s Data with a Shared Password Could Make You a Hacker: Cybersecurity Trends

Can you spot what’s different about today’s post?  See below…  :o)

According to the Ninth U.S. Circuit Court of Appeals, if you leave your company and then use a former co-worker’s credentials to access your former company’s computer systems, you could be a hacker.

In The Wall Street Journal Law Blog (Appeals Court: Using Shared Password to Steal Company Secrets is Hacking, written by Jacob Gershman), the appellate court affirmed the computer-hacking conviction of a former executive (David Nosal) at a recruiting firm accused of using a shared password to steal headhunting leads from the company’s internal network after he left his job to launch a rival business, ruling that he violated the Computer Fraud and Abuse Act (CFAA).

Reuters reported that Nosal and two friends, who had also left Korn/Ferry, used an employee’s password in 2005 to access the recruiting firm’s computers and obtain information to help start a new firm.

In a 2-1 decision written by Judge M. Margaret McKeown, the majority held that Mr. Nosal acted “without authorization” in violation of the CFAA when he used login credentials shared by his assistant to gain access to the company’s network after his own credentials had been revoked.  The dissenting judge, Judge Stephen Reinhardt, expressed his concerns over the ruling, stating:

“People frequently share their passwords, notwithstanding the fact that websites and employers have policies prohibiting it. In my view, the Computer Fraud and Abuse Act does not make the millions of people who engage in this ubiquitous, useful, and generally harmless conduct into unwitting federal criminals…”

However, Judge McKeown, in her opinion, indicated that the circumstances at issue couldn’t be applied to innocuous scenarios, like “asking a spouse to log in to an email account to print a boarding pass.”  Judge McKeown also noted that, without enforcement, “an employee could willy nilly give out passwords to anyone outside the company – former employees whose access had been revoked, competitors, industrious hackers, or bank robbers who find it less risky and more convenient to access accounts via the Internet rather than through armed robbery.”

The appellate court did rule that the more than $800,000 in restitution (about $600,000 of that in attorney’s fees) that Nosal was ordered to pay his old employer was unreasonable and asked a lower court to recalculate it.

So, what do you think?  Have you ever used a shared password to access a system to which you previously had credentials?  Please share any comments you might have or if you’d like to know more about a particular topic.

What’s different about this post?  It doesn’t have the word “eDiscovery” in the title… :o)

New Time!  Just a reminder that I will be moderating a panel at The Masters Conference New York City 2016 IoT, Cybersecurity and Social Media Conference this coming Monday, July 11 (we covered it here) as part of a full day of educational sessions covering a wide range of topics.  CloudNine will be sponsoring that session, titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery at 8:30am, not 4:15pm.  The early bird catches the knowledge.  :o)  Click here to register for the conference.

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 Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: eDiscovery Case Law

In Gade v. State Farm Mutual Automobile Insurance Co., No. 14-00048 (D. Vermont, June 6, 2016), Vermont Chief District Judge Christina Reiss denied the plaintiff’s motion for an order requiring the defendant to pay expenses and fees that she incurred in opposing the defendant’s motion to compel production of an Excel spreadsheet from the plaintiff’s expert.

Case Background

In this personal injury case where the plaintiff sued after the defendant denied her uninsured and underinsured motorist benefits claims, the defendant deposed the plaintiff’s biomechanical expert (John Smith).  The defendant asked for the expert to bring his files to the deposition, but did not examine the files before or during the deposition, instead requesting a complete copy of the expert’s file afterward, including his calculations.  In response, the plaintiff produced a copy of the expert’s file, including eight pages of data and calculations in PDF format.

On three different occasions, the defendant requested the expert’s files in Excel format, to see the underlying calculations and inputs on which the expert relied. During a September 2015 telephone conference, the plaintiff advised the defendant that if the expert’s files existed in Excel format, they would be produced; however, the plaintiff failed to do so, even after three additional written requests for those files.  Finally, the plaintiff responded that she would not produce the expert’s files in Excel format because his files, including his “unredacted calculations” and “the applicable formulas” had previously been produced in PDF format, inviting the defendant to cite “some applicable rule or decision that allows a party to compel another party’s expert to produce work-product files in a particular format”.

Ultimately, the defendant filed a motion to compel, which the plaintiff opposed; however, the parties, after sharing additional information, eventually agreed that motion to compel was moot. However, the plaintiff then sought compensation from the defendant for her attorneys’ fees incurred in opposing the motion, alleging that Defendant did not properly meet and confer as required by the rules.

Judge’s Ruling

After noting that the plaintiff “complied with her duty of disclosure and Defendant properly withdrew its motion to compel”, Judge Reiss turned her attention to the question of whether the defendant complied with Local Rule 26, which requires the movant to “confer[] with opposing counsel in a good faith effort to reduce or eliminate the controversy or arrive at a mutually satisfactory resolution.”  Judge Reiss noted that the defendant “made six informal written requests for Mr. Smith’s files in Excel format from July 28, 2015 through October 13, 2015” and “also made an oral request for the information during a September 10, 2015 telephone call, after which Plaintiff initially stated that she would produce Mr. Smith’s files in Excel format, but later declined to do so.”

While admitting that “the better practice would have been for Defendant to make a formal request Mr. Smith’s files and underlying calculations prior to his deposition”, Judge Reiss ruled that “Defense counsel’s repeated attempts to obtain Mr. Smith’s files in Excel format prior to seeking court intervention, in conjunction with its affidavit supporting the motion to compel, satisfy the requirements of Local Rule 26(d)(2).”  As a result, determining that “it would be unreasonable and unfair to require” the defendant to pay fees to respond to a motion to compel that “arguably should have been unnecessary”, Judge Reiss ruled that “an award of sanctions, expenses, and fees is not warranted in this case.”

So, what do you think?  Did the Defendant go far enough to meet and confer on the issue?  Please share any comments you might have or if you’d like to know more about a particular topic.

New Time!  Just a reminder that I will be moderating a panel at The Masters Conference New York City 2016 IoT, Cybersecurity and Social Media Conference on Monday, July 11 (we covered it here) as part of a full day of educational sessions covering a wide range of topics.  CloudNine will be sponsoring that session, titled Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery at 8:30am, not 4:15pm.  The early bird catches the knowledge.  :o)  Click here to register for the conference.

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.

According to Gartner, Cloud eDiscovery Solutions Gaining Momentum: eDiscovery Trends

According to a new guide by Gartner designed to help General Counsel and IT leaders at organizations evaluate and select eDiscovery solutions for investigative and legal matters, cloud-based eDiscovery solutions are gaining momentum in the market.

Written by Gartner’s industry analyst Jie Zhang, Market Guide for E-Discovery Solutions (available for purchase here) identifies several key findings, including the observation that Software-as-a-Service (SaaS) solutions are gaining momentum, interest in Microsoft’s eDiscovery capabilities continues to build and (not surprisingly) the eDiscovery service market continues to see high merger and acquisition activities.  Ease of use and more competitive and straightforward pricing structures are cited as reasons for the emergence of SaaS solutions in the eDiscovery market.

The Table of Contents for the 24 page guide is as follows:

  • Market Definition
    • Technology
    • Services
  • Market Direction
    • Three Types of Solution Providers
    • Pricing
    • Market Adoption and Growth
  • Market Analysis
    • SaaS Solutions Are Gaining Momentum
    • Building Interest in Microsoft’s E-Discovery Capabilities
    • Searching Across Multiple and Hybrid Data Repositories Becomes More Onerous and Leads to Overinvestment
    • Merger and Acquisition Is Second Nature to the E-Discovery Service Market
    • The Application of Machine-Learning Technology in E-Discovery Beyond the U.S. Market
  • Representative Vendors
    • Representative E-Discovery Solution Providers
  • Market Recommendations
  • Gartner Recommended Reading

According to Rob Robinson’s Complex Discovery site (link here), the report also highlights 50 total providers in the industry (30 software providers, 20 service providers), including CloudNine (shameless plug warning!).  For software providers, deployment model and key technology capabilities or other noteworthy characteristics are identified, for service providers, the report identifies proprietary and/or third party software offered, as well as services offered.  The report concludes with recommendations for general counsel, chief compliance officers, chief information officers (CIOs) and their teams to consider when choosing and implementing eDiscovery solutions, as well as other Gartner recommended reading reports.

The report provides a current list of available software and service providers, with some useful industry observations and recommendations to help organizations in selecting the right provider for them.

So, what do you think?  Are you surprised by any of Gartner’s industry observations?  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.

Cybersecurity Concerns Serve as Impetus for Law Firm Acquisition: eDiscovery Trends

We all know that data breaches and cybersecurity are more of a concern than ever.  In at least one case, those concerns were part of the decision for two law firms to announce their decision to merge last week.

As covered by Bloomberg Law (L.A. Divorce Lawyer to Join Big Law: Her Cybersecurity Worries and More, written by Casey Sullivan) and other outlets, celebrity divorce attorney Stacy Phillips and her four-lawyer boutique law firm, Phillips Lerner, decided to be acquired by Blank Rome last week and joined the firm last Friday.

Over the years, Phillips has represented Bobby Brown in his divorce from Whitney Houston, Corina Villaraigosa in her divorce from Los Angeles Mayor Antonio Villaraigosa and Darcy LaPier in her child custody battle with Jean Claude Van Damme.

When interviewed by Bloomberg Law, Phillips indicated that cybersecurity concerns were part of the reason for the decision to join Blank Rome.

“I wanted to be part of a larger institution. I made that decision as the world gets far more complicated. I wasn’t sleeping at night because I was worried about cybersecurity”, said Phillips.  “I wanted to practice law and develop business. Running the business isn’t my interest and isn’t my strength.”

Asked about her specific concerns about cybersecurity, Phillips responded: “Divorce is a contentious process and people do bad things and people in other cases can be resentful and make efforts to hack into our computers. And what we have of our clients is extremely personal. It’s everything from their emotions, to their finances, and their kids. It’s very scary. The law firms can be hacked and infiltrated. It’s not a question of ‘if,’ it’s a question of ‘when?’ Each law firm and many law firms are going to be hit. [Blank Rome is] a bigger platform and you don’t have to worry about things like that. I don’t want to worry about that at the level that I have been. Other people know and understand it better than I do. I am grateful that others will take care of it. For me, to learn how to do all the computer stuff is a challenge. My son is an engineer and I didn’t get that brain chip.”

Perhaps stories like this will cause other firms to consider similar moves to join larger firms with a more secure infrastructure.  We’ll see.

So, what do you think?  Is this acquisition part of a growing trend?  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.

“Master” Your Knowledge of eDiscovery Again – This Time, In New York City!: eDiscovery Trends

Back in May, I was excited and honored to moderate an enjoyable panel session in Chicago at The Masters Conference Windy City Cybersecurity, Social Media and eDiscovery event.  However, if you aren’t located in the Chicago area (or didn’t travel there for the event) you may have missed it.  Now, if you’re going to be in the New York area on July 11, you get another chance to attend!

The Masters Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing the information life cycle.  Like the Chicago event, the New York City 2016 IoT, Cybersecurity and Social Media Conference will cover a wide range of topics from the impact of social media and the Internet of Things (IoT) on eDiscovery risks and costs to the revolution in eDiscovery analytics to how to handle cross-border data in the wake of the Schrems decision and the new privacy shield.

The New York event will be held at the historic New Yorker Hotel, 481 8th Ave , New York, NY 10001.  Registration begins at 8am, with sessions starting right after that, at 8:30am.

CloudNine will again be sponsoring the session Faster, Cheaper, Better: How Automation is Revolutionizing eDiscovery at 4:15.  I am excited to again be moderating, this time with Bill Dimm, CEO of Hot Neuron, Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC and Hon. Ronald J. Hedges, Principal of Ronald J. Hedges, LLC, as panelists.

Our panel discussion will provide an overview of the evolution of electronic discovery technologies and also share with attendees ways that they can consider and compare technology offerings from the large ecosystem of providers supporting litigation, investigations, and audits and includes an overview of the attributes of fourth generation eDiscovery automation technology.  It should be a very informative discussion with a very knowledgeable panel!  Hope you can join us!

Click here to register for the conference.  The cost is only $165 for a full day of sessions.  That’s hard to beat!

The Masters Conference also has an event coming up in Washington DC in October – its 10 year anniversary event!  Click here for more information on that.

So, what do you think?  Are you going to be in New York City on July 11?  If so, come join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will return on Tuesday.  Happy Independence 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.

Appeals Court Reverses Terminating Sanctions Against Plaintiff for Deletion of Emails: eDiscovery Case Law

In Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. et. al., No. B257148, Consolidated  with Nos. B259552 and B261149 (Cal. App., May 24, 2016), the Court of Appeals of California, Second District determined that the trial court “abused its discretion” by “granting terminating sanctions in a case in which the prejudice to the non-offending party can be ameliorated by a more limited remedy”.  As a result, the appeals court reversed the judgment and remanded it back to the trial court with a lesser sanction, prohibiting the plaintiff “from offering evidence of acts, events, or communications occurring during the period” when one of the plaintiffs deleted emails.

Case Background

In this antitrust suit, the plaintiffs, who operated a movie theater, claimed that the defendants had conspired to keep the most popular films from being distributed to the plaintiff’s theater and filed suit in 2006.  For the next two years, the case proceeded through discovery, and each side requested and received documents from the other. Most notably, in December 2006, one defendant served a set of requests for production in which it requested numerous categories of documents from the plaintiffs.  Ultimately, the plaintiffs voluntarily dismissed movie distributor defendants from the case, but added Cinemark as a defendant following Cinemark’s acquisition of Century.

From the date of production in 2007 until the trial court granted summary judgment in July 2008, no defendant moved for further production.  That summary judgment decision was reversed by the appellate court in 2011 and remanded back to the trial court for further proceedings.

In the summer of 2012, one of the plaintiffs (Tabor) began experiencing problems sending and receiving email from the AT&T account that he used for both personal and business email.  On the advice of an AT&T customer service representative, he deleted thousands of email messages to free up space, deleting the earliest emails up to February 19, 2009.  The plaintiffs then received another discovery request from the new defendant (Cinemark) requesting emails. Upon realizing that he had deleted items he had a duty to preserve, Tabor attempted to recover the emails but was unsuccessful. When Cinemark learned that Tabor had deleted the emails, it moved for sanctions. The trial court denied the motion because it was unable to fully evaluate the extent of prejudice to Cinemark. Subsequently, Cinemark renewed its motion for sanctions. This time, the trial court granted the motion and the plaintiff appealed.

Appellate Court’s Ruling

The court noted that “Cinemark likely suffered some prejudice, and it is entitled to a remedy to compensate for this prejudice. But the potential for prejudice is limited to the period between the spring of 2007 [the time period up to which the plaintiff had previous produced relevant ESI] and February 19, 2009 because the relevant emails outside that period, with some minor exceptions, were saved. Accordingly, the trial court abused its discretion by not limiting appropriate sanctions to the period between the spring of 2007 and February 19, 2009.”

The appellate court also disagreed with the trial court opinion that the plaintiffs “must be able to establish that they actually sought to license and play enough films to generate 40% of the cumulative box office grosses”, noting that the plaintiffs might have realized that distributors were unwilling to give them certain kinds of movies and simply stopped requesting them.  Because the appellate court determined that the deletion of emails outside of the 2007-2009 time frame was “small scale and innocuous”, it determined that there was no justification for additional sanctions.

As a result, the appellate court reversed the judgment and remanded it back to the trial court with a lesser sanction, prohibiting the plaintiff “from offering evidence of acts, events, or communications occurring during the period” between spring 2007 and February 19, 2009 (unless Cinemark offered evidence during that time period that was “more than nonsubstantive, peripheral, or foundational”, in which case, the plaintiffs could present evidence and seek damages pertaining to that time period).

So, what do you think?  Was the appellate court sanction a more appropriate remedy?  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 One Group of People Who May Not Be a Fan of Big Data Analytics: eDiscovery Trends

Most of us love the idea of big data analytics and how it can ultimately benefit us, not just in the litigation process, but in business and life overall.  But, there may be one group of people who may not be as big a fan of big data analytics as the rest of us: criminals who are being sentenced at least partly on the basis of predictive data analysis regarding the likelihood that they will be a repeat offender.

This article in the ABA Journal (Legality of using predictive data to determine sentences challenged in Wisconsin Supreme Court case, written by Sony Kassam), discusses the case of 34-year-old Eric Loomis, who was arrested in Wisconsin in February 2013 for driving a car that had been used in a shooting.  He ultimately pled guilty to eluding an officer and no contest to operating a vehicle without the owner’s consent. Loomis, a registered sex offender, was then sentenced to six years in prison because a score on a test noted he was a “high risk” to the community.

During his appeal in April, Loomis challenged the use of the test’s score, saying it violated his right to due process of law because he was unable to review the algorithm and raise questions about it.

As described in The New York Times, the algorithm used is known as COMPAS (Correctional Offender  Management Profiling for Alternative Sanctions).  Compas is an algorithm developed by a private company, Northpointe Inc., that calculates the likelihood of someone committing another crime and suggests what kind of supervision a defendant should receive in prison. The algorithm results come from a survey of the defendant and information about his or her past conduct.  Company officials at Northpointe say the algorithm’s results are backed by research, but they are “proprietary”. While Northpointe does acknowledge that men, women and juveniles all receive different assessments, the factors considered and the weight given to each are kept secret.

The secrecy and the use of different scales for men and women are at the heart of Loomis’ appeal, which an appellate court has referred to the Wisconsin Supreme Court, which could rule on the appeal in the coming days or weeks.

Other states also use algorithms, including Utah and Virginia, the latter of which has used algorithms for more than a decade.  According to The New York Times, at least one previous prison sentence involving Compas was appealed in Wisconsin and upheld.  And, algorithms have also been used to predict potential crime hot spots: Police in Chicago have used data to identify people who are likely to shoot or get shot and authorities in Kansas City, Mo. have used data to identify possible criminals.  We’re one step closer to pre-crime, folks.

So, what do you think?  Should algorithms that have a significant effect on people’s lives be secret?  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 Sanctions Plaintiff for Failing to Preserve Customer Communications: eDiscovery Case Law

Remember Matthew Enterprise, Inc. v. Chrysler Group, where court the granted the defendant’s motion to compel production from the plaintiff’s customer communications database?  Apparently, that production didn’t go so well…

In Matthew Enterprise, Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF (N.D. Cal. May 23, 2016), California Magistrate Judge Paul S. Grewal, in one of his last orders before leaving the bench, determined that there was “no question that spoliation has occurred” and granted the defendant’s motion for sanctions for spoliation, “in its entirety, except for the proposed remedy”, opting for a middle ground between the parties’ proposals on what the remedy should be.

Case Background

In this price discrimination dispute between an auto manufacturer and its dealer (which does business as Stevens Creek Chrysler Jeep Dodge Ram), the defendant previously moved to compel the plaintiff to produce emails from the personal accounts of the plaintiff employees (because the plaintiff did not furnish all its employees with email accounts, many of them used their personal accounts for business purposes) and from the plaintiff’s customer communications database operated by an outside vendor.  In December 2015, the court denied the motion with respect to the personal emails but granted the motion with respect to the customer communications database, noting that the plaintiff did have control of that data, having already produced data from this source (we covered that ruling here).

After further investigation, however, the plaintiff discovered that it simply had very few documents to produce.  For example, “around June or July 2013, [the plaintiff] changed email vendors for its corporate-assigned email accounts” and “did not retain…the emails contained on the previous email system.”  In addition, because the outside vendor that maintains and operates the plaintiff’s customer communications database automatically deletes “all records of communication; inbound/outbound email, read receipt notifications and manually entered notes by a dealership representative” after 25 months, effectively all customer communications from the period at issue were lost irretrievably when the plaintiff reached out for that data in July 2015.  The parties did not dispute that the duty to preserve documents attached when the plaintiff sent a litigation threat letter in August 1, 2012.

As a result, the defendant filed an instant motion for sanctions for spoliation, seeking an order precluding the plaintiff from offering testimony or interrogatory responses relating to several topics, including those related to diversion and the effect of the defendant’s incentive program on the plaintiff’s decision to raise prices in August 2012.

Judge’s Ruling

Judge Grewal began his order with the following statement:

“The rules governing parties’ duties to preserve data do not demand perfection. Only when a party should have preserved electronically stored information ‘in the anticipation or conduct of litigation’ and when that party ‘failed to take reasonable steps to preserve it’ may a court order corrective measures.  The standard is an attainable one.”

With regard to the plaintiff’s steps to preserve the information, Judge Grewal stated “There is no question that spoliation has occurred. Stevens Creek does not dispute that it should have preserved the emails and the AVV communications. Stevens Creek took literally no action to preserve the information. And, despite Stevens Creek’s belated best efforts, these communications are lost forever.”

As for whether that spoliation prejudiced the defendant, Judge Grewal noted that “Stevens Creek’s lackadaisical attitude towards document preservation took away” the opportunity for the defendant to ask the jury to decide whether its anecdotal evidence undercut the plaintiff’s statistical evidence.  Because of that, Judge Grewal determined that “[n]ot only has spoliation occurred, but it also has prejudiced Chrysler.”

With regard to the remedy, Judge Grewal opted for a “middle ground” between what the defendant requested (noting that “precluding evidence on diversion would effectively decide the case for Chrysler”) and what the plaintiff proposed “allowing Chrysler to introduce communications, subject to the Federal Rules of Evidence, post-dating the alleged price discrimination period as if they came from that period itself.”  Judge Grewal did adopt the plaintiff’s suggestion, but also ordered that the defendant would be allowed to present evidence regarding the plaintiff’s spoliation when the plaintiff offered certain testimony, that the presiding judge would be allowed to “giv[e] the jury instructions to assist in its evaluation of such evidence or argument,” and that the defendant would be awarded “reasonable attorney’s fees” incurred in bringing the motion.

So, what do you think?  Did the court go far enough with its sanctions of the plaintiff?  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.

Is Search Still Important in eDiscovery? I Say Yes: eDiscovery Best Practices

With the acceptance of predictive coding and other technology assisted review mechanisms growing over the past few years, some feel that keyword search is no longer important as a “key” (pun intended) component of the eDiscovery process.  In a new article published last week, I discussed why search is so important in eDiscovery and why law firms and e-discovery companies need better search solutions.

In Inside Counsel (3 reasons e-discovery companies needs better search solutions), the author (Amanda Cicatelli) sat down with me and also with Jeff Nace, VP of Product Management at ONE Discovery Inc. to discuss these and other topics regarding search in eDiscovery.  Both CloudNine and ONE Discovery (along with several other eDiscovery providers) are customers of dtSearch, a text retrieval engine which is embedded in many of the eDiscovery software platforms available on the market today.  I have personally used dtSearch with a handful of different eDiscovery platforms and it is ideal for supporting even very large multi-million document, multi-terabyte collections with effective and fast information retrieval.

Let’s face it, with the total amount of data being captured and stored by organizations doubling every 1.2 years, the ability to quickly and effectively search through data stores that are growing exponentially has become more important than ever to meet discovery obligations within reasonable costs.  Effective search solutions help manage and control discovery costs to help litigants stay within reasonable budgets.

In the article, Nace and I talk about the reasons that companies need effective search solutions, the recurring problems with eDiscovery and ways to address the issues that companies face when trying to manage the growing sizes and sources of electronically stored information (ESI) out there.  Thanks to Inside Counsel and Amanda Cicatelli for the opportunity to discuss the state of eDiscovery searching today and thanks as well as the folks at dtSearch for coordinating the interview!

You can check out the article here.

So, what do you think?  How effectively does your eDiscovery platform search through large collections of ESI?  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 Settles Dispute Between Parties on Number of Custodians to Search and Produce: eDiscovery Case Law

In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., No. 15-01310 (D. Conn., May 19, 2016), Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Case Background

In this action for breach of contract, misrepresentation, unjust enrichment, and unfair trade practices between a franchisor and its franchisee, the parties met and conferred multiple times over the course of this litigation in an effort to come to a mutually agreeable list of ESI search terms and custodians.  The parties agreed to the search of the electronic files of seven custodians, but failed to agree on six additional custodians, leading to the plaintiff’s motion to compel.

The plaintiffs requested the inclusion of six additional custodians in the ESI search, arguing that, even though they were lower level employees, they “are believed to have been involved in both decision making and day to day operations relevant to the claims and defenses raised in the litigation”.  The defendants argued that a search of the emails of these individuals was duplicative and would not produce any relevant information that has not already been exchanged and that searching the files of the additional custodians would be overly burdensome, resulting in tens of thousands of additional documents and hours of costly review, partly based on a test search of two of the proposed custodians that “captured 51,583 e-mail family hits” to be reviewed for relevance.

Judge’s Ruling

Judge Merriam stated that she was “not persuaded that the addition of the six proposed custodians would be unduly burdensome for defendant. As defendant acknowledged during the conference, limitations on search parameters can be implemented so as to exclude the production of duplicative emails, addressing the concern that this production would consist of many emails that had been previously produced through the prior searches of the higher-level custodians. Using ‘de-duplication’ measures to limit the search should alleviate some of the cost and time concerns that defendant raises.”  Judge Merriam also was not swayed by the defendant’s arguments regarding relevance, indicating that “[t]he mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.”

However, while Judge Merriam found “that plaintiffs have established good cause for expanding the ESI search to include three additional custodians”, she found that “no showing of good cause has been made by plaintiffs to search the ESI of the other three proposed custodians” during the in-person Discovery Conference the Court held to discuss the issues.  Therefore, Judge Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from three additional custodians.

So, what do you think?  Should the court have ordered production from all six custodians?  Or was a partial production appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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