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Electronic Discovery

Court Orders Defendant to Re-Produce Selected Documents in Native Format: eDiscovery Case Law

In Spring v. Board of Trustees of Cape Fear Community College et. al., No. 7:15-CV-84-BO (E.D. N.C., Apr. 7, 2016), North Carolina Magistrate Judge James E. Gates, in ruling on several discovery disputes between the parties, granted the plaintiff’s motion to compel in part, ordering the plaintiff to identify documents to be re-produced in native format and for the defendant to re-produce those documents or move for appropriate relief after conferring with plaintiff if it deemed the number of documents identified to be unjustifiably large.

Case Background

In this breach of contract case over a forced resignation, the court entered a scheduling order in August 2015, adopting the parties’ proposed discovery plan which provided that “the requesting party is entitled to have electronic files produced in `native’ format, with accompanying metadata, upon request.”  After the defendant produced documents in response to the plaintiff’s requests for production, the plaintiff sent a letter to defendants’ counsel in December 2015 addressing perceived deficiencies in the defendant’s production.  The defendant produced some supplemental documents, but the plaintiff contended that the defendant’s production was still incomplete.  The plaintiff filed a motion to compel in February 2016, seeking further production, as well as re-production of the originally produced documents in native format.

Judge’s Ruling

After addressing the various requests for further production, allowing in part and denying in part the plaintiff’s requests, Judge Gates turned to the plaintiff’s request for production of electronically stored information in its native format, as stated in the terms of the discovery plan adopted by the Scheduling Order.  While the defendant’s initial production of 2,576 pages was not in native format, the defendant noted that, at the time, the plaintiff did not object to the non-native format of the production.  Since the time plaintiff raised the issue, the defendant stated that it had produced 2,084 documents in native format with metadata and offered to re-produce in native format with metadata specific documents identified by the plaintiff, but objected to re-producing all prior non-native format production.

Judge Gates stated:

“The court agrees with the Board that re-production of all documents at this point would be unduly burdensome. If there are documents, or categories of documents, for which plaintiff requests re-production in native form with metadata, plaintiff shall provide such identification to the Board as soon as practicable, but in no event later than 15 April 2016. The Board shall re-produce in native format with metadata the documents identified as soon as practicable, but in no event later than 28 April 2016, provided that the Board may move by that date pursuant to Local Civil Rule 7.1(c), E.D.N.C. for appropriate relief after conferring with plaintiff if it deems the number of documents identified to be unjustifiably large. The portion of plaintiff’s motion to compel seeking re-production of the documents sought is accordingly ALLOWED IN PART and DENIED IN PART on the foregoing terms.”

So, what do you think?  Considering that it was agreed to in the discovery plan, should the judge have ordered all documents to be re-produced in native format?  Or was the order to re-produce selected documents sufficient?  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.

Time to Express Your Confidence Level in the eDiscovery Ecosystem (Again): eDiscovery Trends

After his inaugural eDiscovery Business Confidence Survey yielded some interesting results, Rob Robinson has made good on his plan to conduct the survey quarterly on his terrific Complex Discovery site with the Spring 2016 Survey.  Now is your chance to express your confidence in the eDiscovery ecosystem!

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

Like last quarter, Rob asks questions related to how you rate general business conditions for eDiscovery in your segment of the eDiscovery market, both current and six months from now, a general sense of where you think revenue and profits will be for your segment of the market in six months and which issue do you think will most impact the business of eDiscovery over the next six months, among other questions.  It’s a simple nine question survey that literally takes about a minute to complete.  Who hasn’t got a minute to provide useful information?

Individual answers are kept confidential, with the aggregate results to be published on Rob’s Complex Discovery site upon completion of the response period, which runs from May 1 through May 30.

Last time, there were 80 total respondents, which is not bad for the two weeks that the survey was open!  Looks like Rob decided to allow a full month to respond this time, which should allow for even more respondents.  Of course, last time over two-thirds of respondents were providers; hopefully, there will be a more even distribution this time around.  A majority of respondents last time considered business in eDiscovery to be good and most expected it to be as good or better six months later.  Our coverage of the last survey, with a link to the full survey, is here.

This time, with stories such as the resolution of the Apple v FBI dispute (at least temporarily), the Verizon 2016 Data Breach Investigations Report and the “Panama Papers”, it will be interesting to see if a new issue becomes the issue that will most impact discovery over the next six months.

The more respondents there are, the more useful the results will be!  Click here to take the survey yourself.  Don’t forget!

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

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

At Litigation Time, the Cost of Data Storage May Not Be As Low As You Think: eDiscovery Best Practices

One of my favorite all-time graphics that we’ve posted on the blog (from one of our very first posts) is this ad from the early 1980s for a 10 MB disk drive – for $3,398!  That’s MB (megabytes), not GB (gigabytes) or TB (terabytes).  These days, the cost per GB for data storage is pennies on the dollar, which is a big reason why the total amount of data being captured and stored by industry doubles every 1.2 years.  But, at litigation time, all that data can cost you – big.

When I checked on prices for external hard drives back in 2010 (not network drives, which are still more expensive), prices for a 2 TB external drive at Best Buy were as low as $140 (roughly 7 cents per GB).  Now, they’re as low as $81.99 (roughly 4.1 cents per GB).  And, these days, you can go bigger – a 5 TB drive for as low as $129.99 (roughly 2.6 cents per GB).  I promise that I don’t have a side job at Best Buy and am not trying to sell you hard drives (even from the back of a van).

No wonder organizations are storing more and more data and managing Big Data in organizations has become such a challenge!

Because organizations are storing so much data (and in more diverse places than ever before), information governance within those organizations has become vitally important in keeping that data as manageable as possible.  And, when litigation or regulatory requests hit, the ability to quickly search and cull potentially responsive data is more important than ever.

Back in 2010, I illustrated how each additional GB that has to be reviewed can cost as much as $16,650 (even with fairly inexpensive contract reviewers).  And, that doesn’t even take into consideration the costs to identify, preserve, collect, and produce each additional GB.  Of course, that was before Da Silva Moore and several other cases that ushered in the era of technology assisted review (even though more cases are still not using it than are using it).  Regardless, that statistic illustrates how the cost of data storage may not be as low as you think at litigation time – each GB could cost hundreds or even thousands to manage (even in the era of eDiscovery automation and falling prices for eDiscovery software and services).

Equating the early 1980’s ad above to GB, that equates to about $330,000 per GB!  But, if you go all the way back to 1950, the cost of a 5 MB drive from IBM was $50,000, which equates to about $10 million per GB!  Check out this interactive chart of hard drive prices from 1950-2010, courtesy of That Data Dude (yes, that really is the name of the site) where you can click on different years and see how the price per GB has dropped over the years.  It’s way cool!

So, what do you think?  Do you track GB metrics for your cases?  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.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: eDiscovery Case Law

In Digital Ally, Inc. v. Utility Associates, Inc., No. 14-2262-CM-GEB (D. Kan. Apr. 15, 2016), Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Case Background

In this case for tortious interference stemming from the defendant’s hiring of a former sales manager of the plaintiff, the two parties were able to successfully resolve early disputes regarding discovery.  However, during the deposition of the defendant’s former vice president in November 2015, twelve categories of unproduced documents were identified which the plaintiff believed to be responsive to its First Requests for Production.  Communications between the parties resolved discussions regarding six of the categories, but when the parties could not agree on the other six categories, the plaintiff filed a Motion to Compel, seeking the remaining six categories of documents.  Subsequently, the plaintiff agreed to withdraw its motion regarding four of the requests, leaving requests for two categories for the court to address.

The defendant argued the motion to compel should be denied because it was filed more than ten months after the plaintiff served its initial Requests and was untimely under D. Kan. Rule 37.1(b). The defendant also maintained that the plaintiff failed to properly confer before filing its motion, as required by D. Kan. Rule 37.2.  With regard to the individual requests, the defendant argued the first request was “neither relevant nor proportional to the issues in this case” and also objected to the request as overbroad for failure to identify custodians of, and provide search terms for, any alleged e-mails as required by the Scheduling Order.  The defendant objected to the second request on the basis of relevance.

Judge’s Ruling

With regard to the defendant’s objection regarding the timeliness of the request, Judge Birzer disagreed, finding that, although the plaintiff failed to file its motion within 30 days after the defendant’s initial discovery responses, “the motion was filed within 30 days of the defendant’s final communication regarding production of the six categories of documents which became an issue after [the former VP’s] deposition”.  With regard to the defendant’s contention that the plaintiff failed to properly confer before filing its motion, Judge Birzer also disagreed with that, ruling that “[b]ecause the parties communicated both in writing and by phone regarding the disputed requests, the Court finds the duty to confer under Rule 37.2 is satisfied”.

With regard to the defendant’s objection to the first request, Judge Birzer stated:

“Aside from simply stating the terms, Defendant has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1), and those objections are overruled. Because Plaintiff brings multiple claims of tortious interference with its business, the information sought by the request appears relevant on its face, and Defendant has not met its burden to demonstrate otherwise.  Additionally, any concerns regarding overbreadth or proportionality may be addressed by following the guidelines of the Scheduling Order.”

With regard to the defendant’s objection to the second request, Judge Birzer determined that the defendant “has not met its burden to demonstrate lack of relevance; therefore the objection is overruled.”  With all objections overruled, Judge Birzer granted the motion to compel with instructions for the plaintiff to resubmit the first request following the terms of the Scheduling Order.

So, what do you think?  Do you think we’ll see more cases where objections are overruled because they don’t provide specificity regarding the objections?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

The Next Batch of “Dirty Laundry” within the “Panama Papers” Will Be Searchable: eDiscovery Trends

“Kick ’em when they’re up, Kick ’em when they’re down, Kick ’em when they’re up, Kick ’em all around” – this seems to be my week for covering Don Henley songs.  Based on reports, the next batch of “Dirty Laundry” from the “Panama Papers” will not only provide more details about hundreds of thousands of secret offshore entities, it will also be searchable.

According to CNET (Panama Papers Part 2: The world’s dirty laundry becomes searchable, written by Claire Reilly), the International Consortium of Investigative Journalists (ICIJ) will release on Monday, May 9 a searchable database with information on more than 200,000 offshore entities that are part of the “Panama Papers” investigation.

As the ICIJ stated in its announcement, “The database will likely be the largest ever release of secret offshore companies and the people behind them… When the data is released, users will be able to search through the data and visualize the networks around thousands of offshore entities, including, when available, Mossack Fonseca’s internal records of the company’s true owners. The interactive database will also include information about more than 100,000 additional companies that were part of the 2013 ICIJ Offshore Leaks investigation.”

The ICIJ also stated that the information “will not be a ‘data dump’ of the original documents – it will be a careful release of basic corporate information.”

Since its release due to a data breach of 11.5 million documents (2.6 total TB of data) at Panamanian law firm Mossack Fonseca, the “Panama Papers” investigation has led to high profile resignations, including the prime minister of Iceland.  It also has triggered official inquiries in multiple countries; and put pressure on world leaders and other politicians to explain their connections to offshore companies. It sparked a new sense of urgency among lawmakers and regulators to close loopholes and make information about the owners of shell companies public.

Last month, founding partner Ramon Fonseca claimed that, despite the huge amount of data exposed, the data breach was not an inside job.  “We rule out an inside job. This is not a leak. This is a hack,” he told Reuters at the company’s headquarters in Panama City’s business district.

So, what do you think?  What lessons, if any, can be learned from the Panama Papers fiasco?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to Sharon Nelson’s Ride the Lightning blog for the tip on the story!

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.

What Happens in the Internet Each Minute in 2016? You Have No Idea: eDiscovery Trends

There’s a Don Henley song titled New York Minute where “In a New York minute…Everything can change”.  In an Internet minute in 2016, data can explode throughout the world.

I love infographics and not just because they make my job easier because I don’t have to write as much.  :o)  The graphic above (copyright by Excelacom, thanks to Stephen’s Lighthouse for the tip) gives you a sense of what happens within the internet in a typical minute.  And, this just covers the most popular apps and mechanisms for communicating and sharing information – there’s a lot more happening each minute that isn’t covered here.

In this era of Big Data, if you’re responsible for information governance in your organization, statistics like those shown above might cause you to lose some sleep.  Sorry about that.  But, they do help convey the increasing challenge of managing all of the data within an organization.  Maybe these are good numbers to reference when you’re pushing for that raise?  You’re welcome.  :o)

So, what do you think?  How have the challenges of Big Data affected your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Your “Mashup” of eDiscovery Market Estimates is Early This Year: eDiscovery Trends

We look forward to the eDiscovery Market Size Mashup that Rob Robinson compiles and presents on his Complex Discovery site each year.  Each of the past three years in July, we have covered his compilations of various eDiscovery market estimates, with estimates for 2012 to 2017, for 2013 to 2018 and 2014-2019 (in two parts).  This year, we don’t have to wait until July: he has released his worldwide eDiscovery software overview for 2015 to 2020 now!

As always, the compilation is “[t]aken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts and discussions over time”.  Rob’s “Mashup” shares general market sizing estimates for both the software and service areas of the electronic discovery market for the years between 2015 and 2020.

Here are some highlights (based on the estimated from the compiled sources):

  • The eDiscovery Software and Services market is expected to grow an estimated 13.15% Compound Annual Growth Rate (CAGR) per year from 2015 to 2020 from $7.33 billion to $13.597 billion per year. Services will comprise approximately 71.69% of the market and software will comprise approximately 28.31% by 2020.
  • The eDiscovery Software market is expected to grow an estimated 14.75% annual growth per year from 2015 to 2020 from $1.935 billion to $3.849 billion per year. Software currently comprises 26.39% of the market, which will rise to 28.31% by 2020.  Also by 2020, 70% of the eDiscovery software market is expected to be “off-premise” – which includes cloud-based and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • The eDiscovery Services market is expected to grow an estimated 12.55% annual growth per year from 2015 to 2020 from $5.397 billion to $9.748 billion per year. The breakdown of the services market by 2020 is expected to be as follows: 68% review, 19% processing and 13% collection (over the past three years, review was at 73% and collection was at 8%).

Growth rates are fairly steady with those reported last year, though down from the estimates the prior two years.

Here are the sources that Rob states were used in compiling the “mashup” (including his own, how clever!):

  • U.S. Department of Commerce, International Trade Administration. 2016 Top Markets Report – Cloud Computing. April 14, 2016.
  • “eDiscovery Business Confidence Survey – Winter 2016 Results.” ComplexDiscovery. March 2, 2016.
  • “Worldwide eDiscovery Services Forecast 2014-2019.” Sean Pike, Angela Gelnaw. December 2015.
  • Gartner, Inc. “Critical Capabilities for E-Discovery Software.” Jie Zhang, Garth Landers. October 6, 2015.
  • Transparency Market Research. “eDiscovery Market – Global Industry Analysis, Size, Share, Growth, Trends and Forecast 2014-2022.” July 6, 2015
  • Markets and Markets. “E-Discovery Market By Solution, Deployment, Industry, & Region – Global Forecast to 2020. July 2015.
  • Global Industry Analysts, Inc. “eDiscovery (Software and Services) Global Strategic Business Report.” May 28, 2015.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Garth Landers. May 18, 2015.
  • The Radicati Group. “eDiscovery Market, 2014-2018.” Sara Radicati. December 3, 2014.
  • Transparency Market Research. “eDiscovery Market – Global Industry Analysis, Size, Share, Growth, Trends and Forecast, 2014-2020).” June 2014.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Debra Logan, Garth Landers. June 19, 2014.
  • “Worldwide eDiscovery Software 2014-2018 Forecast.” Sean Pike. May 2014.
  • The Radicati Group. “eDiscovery Market, 2013-2017.” Sara Radicati. August 2013.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Debra Logan, Alan Dayley, Sheila Childs. June 10, 2013.
  • The Radicati Group. “eDiscovery Market, 2012-2016.” Sara Radicati, Todd Yamasaki. October 2012.
  • Transparency Market Research. “World e-Discovery Software & Service Market Study.” August 2012.
  • Rand Institute For Civil Justice. “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.” Nicolas Pace and Laura Zakaras. April 2012.
  • “MarketScape: Worldwide Standalone Early Case Assessment Applications Vendor Analysis.” Vivian Tero. September 19, 2011.
  • Industry Observer Estimations (Multiple Observers)

So, what do you think?  Do you think the eDiscovery software market is slowing down?  Or is it simply a matter of the market maturing over time?  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.

Failure to Extend Preservation Hold to Headquarters Does Not Lead To Adverse Inference Sanction: eDiscovery Case Law

In Botey v. Green, et. al., No. 12-01520 (M.D. Pa., April 4, 2016), Pennsylvania District Judge Robert D. Mariani denied the plaintiff’s request for an adverse inference sanction for the defendants’ failure to preserve trucking logs related to an accident between the plaintiff and a truck driver working for the defendant’s company, but did agree not to allow the defendants to prove the contents of the destroyed documents by other means or argue their contents in dispositive motions or at trial.

Case Background

In this lawsuit arising out of a traffic accident between the plaintiff and a truck driver (Robert Green) working for the defendant’s company in May 2011 resulting in serious injury to the plaintiff, the parties originally planned to take the driver’s deposition during the normal discovery period.  However, in February 2014, it was determined that the truck driver suffered from dementia and was therefore unable to be deposed.  As a result, the plaintiff sought expanded discovery from the defendants thirty days’ worth of the truck driver’s trip documents and logs that the trucking company maintains for each of its truck drivers, whereas the defendants argued that the plaintiff was only entitled to logs going back 34 hours before the accident.  After telephone arguments, the Court compromised and ordered the defendants to provide fifteen days of logs.

However, the defendants only produced four additional days of logs, not the full fifteen that the Court ordered.  The plaintiff then filed a Motion for Sanctions, which requested “that an adverse inference jury instruction be read against Defendants at the time of trial” as well as “an Order precluding Defendants from arguing in dispositive motions that Plaintiff lacks evidence to prove his corporate negligence claims against Defendants FFE and Conwell based on the documents destroyed.”

The defendants’ trucking logs were administered and maintained by a third party vendor, which only stored the electronic data from the trucks for a period of six months before automatically deleting them. The plaintiff sent litigation hold letters as early as October 2011, but sent them to a local office in Norman, Oklahoma rather than to the defendants’ corporate office in Dallas, Texas and the defendants acknowledged that the letters were never forwarded to the corporate office.

Judge’s Ruling

Judge Mariani noted that “[u]nder Pennsylvania law, to determine the penalty for a spoliation of evidence claim, Plaintiff must show (1) the degree of fault of Defendant in altering or destroying the evidence (2) the degree of prejudice Plaintiff has suffered, and (3) the availability of a lesser sanction that will protect Defendant’s rights and deter future similar conduct.”

Having already found that the defendants were under a legal duty to preserve the logs, Judge Mariani ruled that “Plaintiff has not shown that he is entitled to the ‘adverse inference’ sanction”, noting that “Plaintiff does not explain what ‘adverse inference’ he wants.”  Continuing, Judge Mariani stated that “It is too great a leap to conclude that, if the destroyed records were preserved, they would have shown such evidence of a loss by Green of his mental faculties that Defendants would have been placed on notice that he was suffering from dementia and was likely to cause accidents and therefore advance Plaintiff’s negligence claims against FFE and Conwell.”

As a result, Judge Mariani denied the plaintiff’s request for an adverse inference sanction, noting that failure to preserve the logs “appears to be mainly carelessness in failing to preserve documents from destruction in the ordinary course of business”.  However, Judge Mariani also noted that “while the Court will not grant Plaintiff’s request for an adverse inference, it is only logical and fair that Defendants will not be allowed to rely on the missing records in support of any dispositive motions. This is for obvious reasons: Defendants cannot claim that information in records that was destroyed would exonerate them and expect the Court to permit such an argument.”

So, what do you think?  Should the defendants have received the requested adverse inference sanction?  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.

Nearly Two Thirds of Confirmed Data Breaches Were Related to Password Issues: eDiscovery Trends

You’ve got to love a report that starts with the Yogi Berra quote “It’s like déjà vu, all over again.”  Sadly, when it comes to data breaches, it seems like that statement – however redundant – is more true than ever.

Verizon’s 2016 Data Breach Investigations Report doesn’t waste any time providing useful statistics regarding the state of data breaches – they state right on the cover of the report that “89% of breaches had a financial or espionage motive.”  Honestly, I’m surprised it’s not higher.

Another notable stat is that “63% of confirmed data breaches involved weak, default or stolen passwords.”  As we noted when covering last year’s report, almost thirty percent of data security incidents were due to human error, so it’s not surprising that password breaches are a major cause of data breaches.  Though a lot of the instances of stolen credentials were due to the Dridex botnet (which is banking malware that leverages macros in Microsoft Office to infect systems and steals banking credentials).  In addition to stolen credentials, other malware, phishing, and keyloggers are other top threats.

Other notable statistics:

  • This year’s dataset is made up of over 100,000 incidents, of which 3,141 were confirmed data breaches. Of these, 64,199 incidents and 2,260 breaches comprise the finalized dataset that was used in the analysis and figures throughout the report.
  • The report features incidents affecting organizations in 82 countries and across a myriad of industries
  • As for the industries that were most hit, financial firms were not surprisingly hit with (by far) the most data breaches last year (795), followed by the accommodation/hotel sector (282), information sector (194), public sector (193), retail (137), and healthcare (115).
  • Almost 93 percent of breach compromise incidents occurred within minutes, with 11 percent of those occurring within seconds. But, less than 25% of those breaches are discovered within days.  So, the bad guys get a big head start.

Like the number of data breaches, the report has grown from 70 pages last year to 85 pages(!) this year.  Nonetheless, it’s chock full of graphics and statistics which makes it easier to read than the size of the report indicates.  It covers every type of classification of security incidents you can imagine, from web app attacks to point-of-sale intrusions to crimeware and denial-of-service attacks (which is the only reason we’ve ever missed a scheduled blog post).

You can download a copy of the report here.  Once again, you can register and download the report or just choose to download the report (which I did).  If you want to check out a comprehensive and interesting report on data breaches over the past year, this is it.

So, what do you think?  Have you ever experienced any data breaches, either personally or professionally?  Please share any comments you might have or if you’d like to know more about a particular topic.

Special thanks to Melissa Rogozinski, President of ESIRT, for hosting the roundtable in Birmingham yesterday and to all who attended, in person or via the web.  Also, thanks for Jerome Tapley and Kristian Rasmussen from Cory Watson and Paul Zimmerman from Christian & Small for their excellent insight and experience sharing.  It was an enjoyable and educational event!

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

The Benefits of Blogging: eDiscovery Trends

One of the highlights of the week for me last week at the ACEDS conference was the Law Student Blogger/Social Invitational pre-conference seminar where I was one of the speakers.  It was a great opportunity to share stories with some of my fellow bloggers in the industry whom I respect and admire.

Yesterday, Jason Krause posted a terrific write-up of the session on the ACEDS website (ACEDS Panel: The State of Legal Blogging in 2016) where he discussed some of the comments by the blogger panel (and included an interview that he conducted with Rob Robinson about the session).  While we didn’t have a lot of attendees for the session (damn you, Cyber Security seminar, for being so popular!), it was a thoroughly enjoyable experience sharing stories with Rob, Robin Thompson, Ari Kaplan and Tom O’Connor.  I have tremendous respect for each of my blogger colleagues that participated in that session and for other bloggers in the industry as well.

With over 1,400 lifetime posts (Tuesday was our 1,400th post) over more than 5 1/2 years, I can certainly attest to the benefits of blogging.  Having worked in the litigation support/eDiscovery industry assisting clients for over 25 years, I can say that my profile in the industry has been boosted far more by 5 1/2 years of blogging that it has by all of the years of client work.  If you’re a law student looking to make your mark, blogging is a great way to get noticed!

Another side benefit of regular blogging (and you cannot get more regular than daily, after all) is that it forces you to stay current on developments in the industry.  Having been “heads down” in client projects in the past for months at a time, I’ve been known to let my industry research lag during those stretches and have emerged having to play “catch up”.  When you blog regularly, you really have to stay current with developments in the industry and your appetite for knowledge is enhanced when you’re always looking for blog topics.  I’m grateful for that aspect that being a blogger provides.

Blogging can sometimes be circular, as well.  Craig Ball issues a new “EDNA” challenge on his blog a couple of weeks ago (to which CloudNine’s CEO Brad Jenkins provided a response) and then he discussed the various responses at a session at ACEDS (along with Tom and Tania Mabrey).  We covered his challenge, his post, and the session here a few days ago on this blog.  And, Rob (after covering Craig’s challenge as well several days ago), covered the session here (which includes a look at the slides from the session and is definitely worth checking out) on his Complex Discovery blog.  When it came to the “EDNA” challenge, blogging tied it all together!

Don’t forget that today I will be moderating a panel in Birmingham, Alabama!  The session is titled The New Rule 34(b):  Managing e-Discovery Requests, Objections & Other Fun Stuff and it will begin at 11:30AM CT.  Click on the link to attend in person in Birmingham (with CLE credit available) or via WebEx (no CLE credit available).  Should be a fun session!

So, what do you think?  Have you ever written a blog?  If so, what was your experience?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

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