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Metadata Plays Key Role in $10.8 Million Whistleblower Lawsuit Verdict: eDiscovery Case Law

Earlier this month, federal jurors awarded nearly $8 million to the former general counsel of a company who says he was fired because he blew the whistle on his company’s potential violation of a foreign bribery law.  That award will increase to $10.8 million because the Dodd-Frank Act authorizes the doubling of back pay for whistleblower retaliation.

An article in The Recorder (Ousted Bio-Rad GC Wins Whistleblower Case, written by David Ruiz) stated that a federal jury sided with former Bio-Rad Laboratories Inc. general counsel Sanford “Sandy” Wadler in his whistleblower retaliation lawsuit against the company, after deliberating for less than three hours.

The jury awarded Wadler $2.9 million in back pay and stock compensation and $5 million for punitive damages.

“I’m extraordinarily grateful to the jury for its very thoughtful verdict in finding that whistleblowers need protection,” lead attorney James Wagstaffe (of law firm Kerr & Wagstaffe) said immediately after the verdict was read. “You’re not supposed to fault whistleblowers for raising legitimate concerns about potential corruption.”

Wagstaffe also said that back pay damages are doubled, increasing the total award to $10.8 million.

Wadler, who was fired from his post at Bio-Rad in June 2013, maintained that he was forced out because he blew the whistle on potential Foreign Corrupt Practices Act violations by the company in China.  Jurors found that Wadler’s whistleblowing activities were a significant reason the company fired him in June of that year.

Wadler’s lawyers at Kerr & Wagstaffe were able to undermine some company testimony by pointing to a lack of documentation about Wadler’s alleged outbursts, partly by repeatedly returning to the last review that Wadler received while on the job in December 2012, which was largely positive.

A key aspect of the jury’s decision related to the metadata associated with Wadler’s most recent performance evaluation, which was apparently dated in April 2013.  Before the jury reached its verdict, it asked about the timing of that performance evaluation. According to Wagstaffe, metadata showed the performance evaluation was actually created in July 2013, a full month after Wadler’s termination. The jury asked if the date referred to the document’s creation or its modification. It referred to creation, said U.S. Magistrate Judge Joseph Spero, who presided over the case.

In an interview with Courthouse News, Wagstaffe said the metadata evidence helped tip the scale in Wadler’s favor and that the “fake job review” (his words, not mine) was a major piece of evidence that helped tip the scale.

Hat tip to Sharon Nelson at Ride the Lightning for her post about the story.

So, what do you think?  Can metadata prove when a document was created?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Valentine’s Day!

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

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

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

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

Case Background

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

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

Judge’s Ruling

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

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

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

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

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

So, what do you think?  Was it appropriate to order production of the email in native format?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

2016 eDiscovery Case Law Year in Review, Part 1

It’s that time again!  Time for our annual review of eDiscovery case law!  Once again, we had plenty of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI) and even a few landmark cases regarding technology assisted review.  So, as we have done for the last five years, let’s take a look back at 2016!

Last year, eDiscoveryDaily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had over 500 lifetime case law posts, covering over 380 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND PROPORTIONALITY

This year, there were more disputes than ever about data being produced and not being produced and whether the costs to do so are overly burdensome.  Here are sixteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Motion to Compel Denied for Employees’ Personal Emails, Granted for Third Party Hosted Data: In Matthew Enterprise, Inc. v. Chrysler Group, LLC, California Magistrate Judge Paul S. Grewal denied the defendant’s motion to compel production from personal email accounts of the plaintiff’s employees because the plaintiff did not have legal control of the emails.  However, he granted the defendant’s motion to compel production from the plaintiff’s customer communications database operated by a third party vendor, noting that the plaintiff did have control of that data, having already produced data from this source.

Citing Proportionality Concerns, Court Grants Plaintiff’s Motion for Protective Order: In Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., Indiana Magistrate Judge Debra McVicker Lynch, citing proportionality concerns, granted the plaintiff’s motion for a protective order and ordered that the defendant was prohibited from obtaining the discovery sought by the defendant’s subpoenas from a major shareholder of the plaintiff.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: In Digital Ally, Inc. v. Utility Associates, Inc., 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)”.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Court Limits Scope of Search Terms Requested by Plaintiff: In AVM Technologies, LLC v. Intel Corp., Delaware Magistrate Judge Mary Pat Thynge granted in part the plaintiff’s request for the defendant to perform a database search of four terms and their synonyms, but limited the scope of that search to one specific defendant database, not the variety of sources requested by the plaintiff to be searched.

Defendant Ordered to Issue Litigation Hold, Respond to Discovery Requests: In Bruner v. American Honda Motor Co., Alabama Magistrate Judge Katherine P. Nelson granted the plaintiffs’ motion to compel response to discovery requests for email, to perform additional searches, and to implement a litigation hold on the email accounts for relevant individuals to the case.

Court Orders Non Party to Preserve Some, But Not All, Information Requested by Plaintiff: In Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., et. al., Ohio Magistrate Judge Elizabeth A. Preston Deavers ruled that the plaintiff had satisfied its burden to demonstrate a real danger that relevant evidence in a non-party’s possession would be destroyed absent a court order and ordered WestFax, the non-party, “to preserve any transmission report or other documents and ESI that identify fax numbers that received Defendants’ advertising faxes.”  However, noting that the requested scope of the preservation order “appears overly broad”, she permitted WestFax to file objections to the Order within 14 days if unable to extrajudicially resolve any such objection with the plaintiff.

Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: In Al-Ameri et. al. v. Johns Hopkins Hospital, Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Court Settles Dispute Between Parties on Number of Custodians to Search and Produce: In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., 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”.

Court Rejects Plaintiff’s Request for Fee Reimbursement in Responding to Motion: In Gade v. State Farm Mutual Automobile Insurance Co., 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.

Court Grants Discovery on Individual Defendants’ Personal Computers and Email: In Sunderland v. Suffolk County et. al., New York Magistrate Judge A. Kathleen Tomlinson, determining that the plaintiff’s request for individual defendants to search for and produce certain documents from their personal computers and email accounts was not “unduly intrusive or burdensome” because the request was limited in time frame and the parties had agreed to search terms, granted the plaintiff’s motion to compel.

Court Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: In United States v. Lambis, New York District Judge William H. Pauley, III granted the defendant’s motion to suppress evidence obtained by law enforcement agents in connection with a search of his apartment because the apartment was located via the use of a “Stingray” cell-site simulator to identify the location of the defendant’s phone without a warrant.

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: In Blodgett et. al. v. Siemens Industry, Inc., New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Defendant Not Required to Produce All Documents Responsive to Search Terms: In Bancpass, Inc. v. Highway Toll Administration, LLC, Texas Magistrate Judge Andrew W. Austin (no relation) denied the plaintiff’s Motion to Enforce Discovery Agreements with regard to the plaintiff’s request for the defendant to produce all non-privileged documents responsive to search terms agreed to over email.

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: In Elkharwily v. Franciscan Health Sys., Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Court Orders Forensic Examination of Key Custodian Computers: In Davis v. Crescent Electric Company et. al., South Dakota District Judge Lawrence L. Piersol ruled that a non-disclosure agreement would sufficiently protect any and all confidential and/or privileged information of the defendant that may be uncovered during the forensic examination for key custodians and that the information being requested by the plaintiff was relevant and not overly broad.

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, disputes about discovery, eDiscovery cost reimbursement, form of production disputes and the ubiquitous Apple v. Samsung case.  Stay tuned!

Want to take a look at cases we covered the previous five years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Defendant Ordered to Produce Source Code Responsive to Agreed Upon Search Protocol: eDiscovery Case Law

In ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016), Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source Code in part, “to the extent there are any files that MasterCard has not produced responsive to the parties’ previously established joint Search Protocol.”

Case Background

In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s software, the disclosure of the defendant’s source code had been the subject of ongoing discovery disputes for more than a year.  In an order dated July 13, 2015 (and covered by us here), the court found the plaintiff had shown the relevance and a particular need for electronically stored information (“ESI”) constituting or containing the plaintiff’s proprietary information, but, because the court did not have the expertise necessary to determine the best way to retrieve the requested information, the parties were directed to devise a joint search protocol or methodology to retrieve the information requested by the plaintiff; otherwise, the court would appoint a special master.

The parties then generally agreed to a search protocol, but were unable to reach a full agreement on the search terms to be used.  In August 2015, the court ordered the defendant to run the plaintiff’s “Counterproposal Search Protocol” and produce the search results no later than September 16, 2015; after the defendant’s objections were overruled, the parties subsequently conferred and agreed that the defendant would run the Search Protocol and produce the requested materials by October 9, 2015. The defendant continued to hesitate to produce actual source code without an additional protective order, and after another motion to compel by the plaintiff, the court again ordered the defendant to run the Search Protocol and produce the requested information, which included source code. In February 2016, the court denied the defendant’s motion for partial reconsideration, but stated it would entertain inclusions of additional provisions to the protective order in place, if the parties agreed. In March, the court adopted the parties’ joint protective order for source code.

Ultimately, the plaintiff filed the current motion to compel disclosure of the entire source code, claiming that the defendant had not produced all items identified by the Search Protocol, stating production of the entire source code was warranted due to “MasterCard’s history of refusing to produce clearly relevant source code” and alleging that the source code produced to date supported its allegations of misappropriation. The defendant counters that the remedy is the production of missing files pursuant to the Search Protocol, and not the production of the entire source code.

Judge’s Ruling

Noting its previous emphasis that “The Federal Rules of Civil Procedure . . . emphasize that electronic discovery should be a party-driven process”, Judge Gossett ruled that:

“ACI’s request now for the entire source code to the MDS is not proportional to the needs of the case, would include information irrelevant to ACI’s claims, and would defeat the purpose of the protracted efforts by the parties to reach a compromise regarding production of MDS source code…To the extent MasterCard’s production has been deficient, the remedy is not to compel the production of its entire source code for the MDS. Rather, the court will compel MasterCard to produce only the source code retrieved using the parties’ joint search protocol that MasterCard has not yet produced.”

So, what do you think?  Given the defendant’s numerous delays in producing source code, should the court have granted the plaintiff’s motion in total?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Rejects Discovery for Additional Time Period, But Grants Additional Discovery on Termination Plan: eDiscovery Case Law

In Blodgett et. al. v. Siemens Industry, Inc., No. 13-3194 (E.D. N.Y., Aug. 9, 2016), New York Magistrate Judge A. Kathleen Tomlinson denied the plaintiff’s motion to compel the defendant to respond to the first two requests in its third request for production, but granted the motion regarding the plaintiff’s third request for ESI regarding a division-wide reduction-in-force plan.

Case Background

In this case alleging improper termination, the plaintiffs sued after the defendant allegedly promised them continued employment and then terminated their jobs in April 2013.  Previously, the Court had directed the defendant to produce additional ESI from custodians previously agreed upon by the parties as well as two new custodians, but when the plaintiff filed a motion to compel in July 2015 regarding alleged deficiencies in the defendant’s responses, the Court denied the plaintiff’s motion, without prejudice and with the right to renew, on the grounds that it was not in compliance with Local Rule 37.1.

In its renewed motion, the plaintiffs sought production of additional emails that included a new three-month time frame (October 1, 2012 to December 31, 2012) not previously requested.  The plaintiffs also sought emails related to the rejection of a proposal for an additional sales manager position that the plaintiff argued “refers to Defendant working on a possible reduction of staff in August 2012”.  The defendant claimed that the quote in one particular email (“look at the final territory breakdown. While we worked on this last August, the documents need to be refreshed and double checked”) related to territory breakdowns, not contemplation of a reduction-in-force and one of the custodians (Richard Lattanzi) testified that there were no discussions regarding reduction-in-force in August 2012.  The plaintiffs also requested all documents related to “Project Merlin,” a division-wide reduction-in-force plan, contending that those documents were relevant, and that the defendants had not yet produced any documentation about this project.

Judge’s Ruling

Regarding the first request, Judge Tomlinson, in denying the request, stated:

“Having considered the parties’ arguments in light of these standards, the Court declines to compel Defendant to respond to Request No. 1. As Defendant points out in its opposition, compliance with this document request would require Defendant to search the ESI of all seven custodians using a third set of date parameters (i.e., October 1, 2012 to December 31, 2012) not previously agreed to by the parties or authorized by the Court. Plaintiffs simply have not provided the Court with a basis beyond speculation to believe that relevant information is likely to be uncovered as a result of requiring Defendant to undertake an additional search for the proposed three-month period.”

Judge Tomlinson, also denied the second request as well, stating “In short, Lattanzi’s deposition testimony does not support the additional discovery sought in Request No. 2. To the extent Plaintiffs wished to determine what Schlesinger meant in his March 2013 email and whether that email does, in fact, refer to an August 2012 reduction in force, they could have questioned Schlesinger about the email during his deposition, which was conducted more than four months after Defendant produced the email on April 1, 2014… And although Plaintiffs assert that “Mr. Lattanzi’s deposition revealed additional information that requires supplemental disclosure by Defendant,” Plaintiffs have not identified this alleged “additional information.” Their conclusory statement is insufficient to compel the discovery sought in Request No 2.”

However, Judge Tomlinson, granted the plaintiff’s third request, noting “From the parties’ submissions and their representations of Lattanzi’s deposition testimony, it appears to the Court that Project Merlin was an overarching reduction-in-force encompassing not only Plaintiffs’ group, but other groups within Defendant’s Building Technologies division. The Court therefore finds that documents, information, and correspondence regarding a particular reduction-in-force within Project Merlin which resulted in the termination of Plaintiffs’ employment are relevant and should be produced. However, Plaintiffs are not entitled to discover information about reductions-in-force in other groups/divisions which were affected pursuant to Project Merlin but were unrelated to Plaintiffs’ termination.”

So, what do you think?  Did the Court make the right decisions?  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.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: eDiscovery Case Law

In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., No. 13-784 (D. Utah, Mar. 22, 2016), Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Case Background

In this case, the plaintiffs filed suit against the defendant for patent infringement and the defendant filed a counterclaim seeking a declaratory judgment of non-infringement and invalidity of the patent.  To bolster its effort in obtaining its declaratory judgment, the defendant moved for an order compelling the plaintiffs to provide a complete copy of the Microsoft Access database that co-inventor Donald Steele utilized to input his formulas, seeking the metadata it alleged was contained in the Access database to independently determine the legitimacy of the plaintiffs’ claim that Mr. Steele and his co-inventor were the first inventors of the patent.  The defendant claimed that the plaintiffs tampered with the Access database to create a false early conception date of the invention.

The plaintiffs argued that Access databases do not maintain metadata like word processing or spreadsheet programs do and that the database was owned and maintained by a third party that kept all of its and its customers’ formulations in the Access database, not just the plaintiffs’ formulations and that giving the defendant access to the database would also be giving it access to the third party’s proprietary information. The plaintiffs also asserted that that there was no evidence of tampering with the database.  To address the concerns over third party information, the defendant indicated that the plaintiffs could provide the electronic copy of the database under the designation of “CONFIDENTIAL INFORMATION — ATTORNEYS EYES ONLY” and argued that the plaintiffs had failed to demonstrate that providing the database with the metadata intact would present an undue hardship or expense.

Judge’s Ruling

Because the parties had competing affidavits regarding whether the Microsoft Access database stores metadata, and because evidence regarding the date of the invention was clearly relevant to the case, Judge Warner ruled that “Defendant ought to be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in its native format.”  Regarding the plaintiffs’ concerns regarding disclosure of proprietary or confidential information, Judge Warner indicated that “an attorneys eyes only designation pursuant to the protective order should provide a sufficient safeguard against disclosure of confidential or proprietary information.”  As a result, he ordered the plaintiffs to produce a copy of the Microsoft Access database to the defendants within ten days of the date of the order.

So, what do you think?  Should the court have allowed a forensic analysis of the Access database?  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.

Well, That Didn’t Take Long! Apple v. the US Government Gears Up for Round Two: eDiscovery Trends

When the FBI was able to access the iPhone used by one of the gunmen in the San Bernardino terrorist shooting, effectively ending the six week dispute between Apple and the FBI over privacy and security, we said the battle was over – for now.  Apparently, “for now” was the same as “not for long”.

According to re/code (Apple-FBI Encryption Battle Shifts to New York, written by Dawn Chmielewski), the U.S. Attorney’s office notified a federal judge in Brooklyn on Friday that the government plans to press forward with its request to have Apple assist in unlocking a phone seized in a Brooklyn drug case, moving the low-profile case to center stage in the ongoing debate over encryption.

“The government’s application is not moot and the government continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant,” U.S. Attorney Robert Capers wrote to the court.

Apple had requested a delay in the case until it could be determined whether the FBI’s new technique for hacking an iPhone 5c used by one of the San Bernardino shooters could also unlock the device in the Brooklyn case.

Back in February, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides battled over the issue in court until the FBI was successfully able to access the iPhone on its own toward the end of March.

As many predicted, it was only a matter of time before another dispute with a government agency over Apple security made its way to the courtroom.  When that government agency is not able to find a way to access the Apple device and requests assistance from the court, I would expect to see a long drawn-out court battle over the issue – one that privacy and security advocates will undoubtedly continue to debate.

So, what do you think?  Is this the case where the true battle between Apple and the US government will be waged?  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.

Court Denies Plaintiff’s Request for Native ESI Format, Approves Request for Index: eDiscovery Case Law

In Stormo v. City of Sioux Falls, et. al., No. 12-04057 (D. S.D., Feb. 19, 2016), South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Case Background

In this pro se lawsuit where the plaintiff sued the defendants for violations of his civil rights with respect to his status as a landowner and landlord, the court granted the defendants’ motion for summary judgment in part. The plaintiff then filed a second amended complaint with additional claims.  As Judge Schreier noted, “Discovery is ongoing and fraught with complications. Stormo has filed numerous motions, often raising unrelated, irrelevant, or indecipherable arguments. Defendants have neither responded to all of Stormo’s discovery requests adequately nor complied with all of the court’s orders sufficiently.”

In the plaintiff’s latest motion, the plaintiff moved the court to, among other things, compel defendants to provide electronically stored information in its native format, provide metadata for these documents, and provide an index explaining information about the documents.

With regard to the metadata, the plaintiff argued that metadata would allow him to discover whether the data is “forensically sound,” specifically: when it was created, accessed, or modified.  Countering, the defendant argued that providing the metadata would be overly burdensome and stated that they have no system that tracks the metadata sought by the plaintiff and they would have to go through each document and retrieve the metadata from the program with which the document was created.  As for the request for the index, the plaintiff claimed that the defendants produced a jumbled group of documents which is not labeled or indexed in any manner, but the defendants argued that they produced documents in an organized fashion and in the form kept in the ordinary course of business.

Judge’s Ruling

Judge Schreier began her analysis by citing Federal Rule of Civil Procedure 34(b)(2)(E), which states:

“(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form…”

With regard to the plaintiff’s request to compel the defendants to reproduce documents in their native format, Judge Schreier stated that “He claims that he made a general request for all electronically stored information in its native format at the time of his initial document request…He does not, however, explain what is wrong with the format in which defendants have produced the documents. Therefore, the motion to compel is denied as it concerns his request to reproduce documents in their native format.”

With regard to the request for metadata, Judge Schreier stated:

“Defendants’ response may fail to articulate how this discovery is extraordinary or unusual, but Stormo has failed to show the metadata’s relevancy to his claims. His motion to compel argues that he wants the metadata to be sure that the documents were not created for or altered in anticipation of litigation…Stormo has not explained why he thinks defendants might have done this. There is no indication that they have altered the documents. Stormo fails to convince the court that the metadata is relevant to his claims, the request falls outside of the parameters of discovery, and therefore, his motion to compel is denied as it concerns his request for metadata.”

As for the request for an index, Judge Schreier ruled on this point in favor of the plaintiff, noting that “Stormo requests only “a) the bates number or other identifier of the document; b) the name of the person who is custodian of the document; c) the original source and author of the document; and d) the document request number and request number of any requests that the document is responsive to” for each document…Supplying this information is not overly burdensome on defendants. Therefore, Stormo’s motion to compel is granted as it concerns preparation of an index that supplies the information described above.”

So, what do you think?  Was the plaintiff’s request for native format documents and metadata unreasonable?  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.

Breaking News: The BIG Battle between Apple and the FBI is Over – For Now: eDiscovery Trends

Last week, we reported that the FBI said that it might no longer need Apple’s assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.  Looks like that was the case.

According to CNN Money (FBI says it has cracked terrorist’s iPhone without Apple’s help, written by Jackie Wattles and Laurie Segall), the Department of Justice says the FBI has accessed the iPhone used by one of the gunmen in the San Bernardino terrorist shooting, with the help of an unnamed third party.  Saying that it has successfully retrieved the data from the phone, the Justice Department is asking the court to vacate its order from last month for Apple’s assistance.

“The FBI has now successfully retrieved the data stored on the San Bernardino terrorist’s iPhone and therefore no longer requires the assistance from Apple required by this Court Order,” DOJ spokeswoman Melanie Newman said in a statement.

Government officials did not go into detail about what was found on the phone.

The two sides were due in court last week, but the judge granted a last minute request from the DOJ to postpone the hearing, saying an unidentified “outside party” came to the FBI with an alternative method for hacking into the phone.  On Monday, the DOJ said the method only works on this particular phone, which is an iPhone 5C running a version of iOS 9 software.

A law enforcement official, speaking to reporters on condition of anonymity, would not reveal how it pulled off this hack. He would not name the “third party” that helped the FBI. And he refused to say whether the FBI will disclose this hacking method to Apple so the company can protect future phones from being hacked this way.  “We can’t comment on the possibility of future disclosures at this point,” the law enforcement official said.

Last month, a federal judge ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has fought, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.  That same day, Apple CEO Tim Cook published an open letter, pledging to fight the judge’s ruling that it should give FBI investigators access to encrypted data on the device.  And, the two sides have battled over the issue in court over the past month.

So, who is this “outside party”?  Was Steve Jobs resurrected over the weekend?  It was Easter, after all.  :o)  Regardless, it appears that the dispute is over – at least until the next time that the DOJ and the FBI need to hack into an Apple device.

So, what do you think?  Do you think we will see more disputes like this in the future?  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.