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eDiscoveryDaily

Less Than Half the States Have a Technology Competence Requirement for Attorneys: eDiscovery Trends

As you all know, I love a good infographic.  This one reflects the states that require attorneys to stay abreast of changes in technology relating to law practice.  Does your state have a technology competence requirement for its attorneys?

This infographic is available courtesy of Percipient, which is an eDiscovery and legal technology company that provides managed document review and managed eDiscovery services.  As they note in their post about the topic, in 2012 the American Bar Association amended Comment 8 to Model Rule of Professional Conduct 1.1 (Duty of Competence) to address changes in technology. That Comment now reads as follows:

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

According to Percipient, twenty-four states have either adopted the amended comment or otherwise require attorneys to stay abreast of changes in technology relating to law practice, with twenty-two of them effective today.  The other two states (represented in light blue on the map) – Washington State (September 1, 2016) and Wisconsin (January 1, 2017) – will be effective within the next few months.  So, by their assessment, less than half of all states have a technology competence requirement for its attorneys.

I have no reason to believe that they missed any states that have such a requirement, but they note to inform them if they missed any.  Regardless, the infographic (available here as a standalone PDF) is a great resource for identifying the current status of technology competence requirements across the country.  Thanks, Percipient!

So, what do you think?  Does your state have a technology competence requirement for attorneys?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

 

Another Busy Year Shaping Up for Mergers and Acquisitions: eDiscovery Trends

One of the trends that most thought leaders that we interviewed in our annual thought leader interview series this year identified was that the eDiscovery provider market was finally consolidating and the pace of mergers and acquisitions was accelerating.  So far this year, that trend is proving true.

The latest announcement, the acquisition of Epiq Systems by the private equity owners of Document Technologies Inc (DTI) – and making Epiq the latest Billion Dollar Baby – is already the 20th merger, acquisition or investment involving an eDiscovery software or service provider this year.

Other well-known providers like Recommind, Elite Document Solutions, Content Analyst, Kiersted Systems and Orange Legal Technologies have also already been acquired this year.

As always, to get the latest list of mergers, acquisitions and investments, you can go to Rob Robinson’s Complex Discovery.  His site keeps a running list of mergers, acquisitions and investments in the eDiscovery industry and goes all the way back to 2001 – almost a full 15 years.  That’s even before Kroll merged with Ontrack!  He still calls it a “non-comprehensive overview”, but there are 275 transactions, so it’s pretty darn comprehensive (in my opinion, anyway).

Rob’s list not only keeps you abreast of changes in the industry, it’s a great “way back” machine for those who have been in the industry for a number of years and remember some of the providers who were acquired and no longer exist as their old names.  And, if you want to know who is investing in eDiscovery companies (besides OMERS, the private equity owner of DTI), Rob has that list too.  :o)

Speaking of DTI, they top the list with 11 acquisitions over the years (not counting Epiq), with companies including Data Forte, Falcon Discovery, Fios, Inc., Hudson Global, Inc. (eDiscovery Assets), Merrill Corporation (Legal Solutions Group), Providus, Adept STS, Limited, Applied Discovery, Bridge City Legal, Daticon EED, Unlimited Discovery Group among the acquired.  Big fish.

So, what do you think?  Are you surprised by the number of eDiscovery transactions this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Assesses $3 Million Punitive Sanction to Defendant for “Bad Faith” Deletion of Emails: eDiscovery Case Law
 In GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Delaware, July 12, 2016), Delaware District Judge Leonard P. Stark, finding a high degree of fault, bad-faith intent to deprive the plaintiff of responsive documents and prejudice caused to the plaintiff’s case, imposed several sanctions against the defendant, including “punitive sanctions in the amount of $3,000,000” for the “intentional and admitted deletion of emails” by the defendant’s Senior Vice President of Sales.

Case Background

In this case with claims of monopolization, attempted monopolization and common-law tortious interference with business relations against the defendant, the defendant (upon receiving a demand letter from the plaintiff in May 2012) promptly issued a litigation hold to relevant employees and provided training sessions to ensure compliance, then issued an updated litigation hold with quarterly reminders once the lawsuit was filed.

However, the defendant’s Senior Vice President of Sales (Don Houston) on several occasions after the lawsuit was filed, replied to email discussions among co-workers, requesting them to be careful about competitive statements and instructing them to delete those email chains where discussions were taking place.  Houston also deleted his own emails, deleting more than 40% of his emails from November 18, 2013 through February 19, 2014 from both his legal folder and his deleted files folder.  In addition, sales team members were instructed to use code words to refer to competitors, such as “zebra” for the plaintiff.

When the defendant’s Associate General Counsel became aware of the deletions, she contacted the IT department, which implemented an anti-email-deletion litigation hold feature and provided her with Houston’s back-up tapes going back to November 2013.  The defendant retained an eDiscovery provider to restore back-up tapes and preserve emails still available and retained another eDiscovery provider to quantify the emails that had been deleted.  The second eDiscovery provider estimated that as many as 90,000 emails were unrecoverable, with as many as 6,000 estimated to be responsive to the plaintiff’s discovery requests.  The defendant chose not to complete the project and did not disclose the analysis for almost ten months; the plaintiff, using its own expert to conduct analysis, determined as many as 15,000 deleted emails would have been responsive to discovery requests.  The plaintiff filed a Motion for Sanctions against the defendant for the deleted emails.

Judge’s Ruling

Judge Stark began the discussion portion of the ruling by stating that “It is undisputed that thousands of Mr. Houston’s emails ‘should have been preserved in the anticipation or conduct of litigation,’ were ‘lost,’ and ‘cannot be restored or replaced through additional discovery.’”  Judge Stark refuted the defendant’s arguments that it took reasonable steps to preserve ESI, that it had no intent to deprive the plaintiff of discovery (and therefore did not act in bad faith) and that the plaintiff had not demonstrated any prejudice, stating, among other things, that:

  • The defendant’s “extensive document preservation efforts do not absolve it of all responsibility for the failure of a member of its senior management to comply with his document preservation obligations”,
  • “in Plantronics’ own words, Mr. Houston instructed others to delete emails ‘for purposes of protecting the business’”, and
  • “Because the Court has found that Plantronics acted in bad faith, the burden shifts to Plantronics to show a lack [of] prejudice to GN resulting from Mr. Houston’s deletion of emails.” Judge Stark refuted the defendant’s three arguments as to lack of prejudice from the deletion of emails.

With the determination that sanctions were in order, Judge Stark rejected the idea of re-opening discovery as a possible remedy.  Instead, he noted that “[m]onetary sanctions, although unable to fully redress the prejudice to GN, are warranted.”

With that in mind, Judge Stark stated the following:

“[T]he Court finds that Plantronics’ high degree of fault, its bad-faith intent to deprive GN of responsive documents, and the prejudice it has caused to GN’s case – along with the difficulties it has created for GN in ‘getting to the bottom of the deletion story’ and its (at times) unwillingness to acknowledge wrongdoing – further merit punitive monetary sanctions.  Therefore, the Court will impose a sanction in the amount of $3,000,000 on Plantronics, payable to GN.”

In addition, Judge Stark added “monetary sanctions in the form of the reasonable fees and costs incurred by GN in connection with the disputes leading to today’s Order”, “possible evidentiary sanctions, if requested by GN and found by the Court to be warranted as this case progresses toward trial”; and “instructions to the jury that it may draw an adverse inference that emails destroyed by Plantronics would have been favorable to GN’s case and/or unfavorable to Plantronics’ defense.”

So, what do you think?  Were the sanctions excessive or were they appropriate?  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.

We Are Family, I Got All My Attachments and Me: eDiscovery Best Practices
 OK, I know that’s not how the classic Sister Sledge song goes, but I’m such an eDiscovery geek that every time I think of that song these days, I think of keeping email and attachment families together.  One of the most common mistakes that I see clients make is that they forget to account for complete “families” in their email productions, which leads to an incomplete production to opposing counsel.

Having assisted a client with this just the other day, it seems appropriate to revisit this topic…

In most cases these days when an email or attachment is deemed to be responsive, the receiving party expects to also receive any “family” members of the responsive file (with the possible exception of embedded signature logo graphics, which are often considered extraneous and often removed before review).  Attorneys like to have the complete family when reviewing the production from the other side, even if some of the individual files aren’t responsive themselves.  Receiving an email without its corresponding attachments or receiving some, but not all, of the attachments to an email tends to raise suspicions.  Most attorneys don’t want to give opposing counsel a reason to be suspicious of their production, so parties usually agree to produce the entire email “family” in these cases.  Here’s a scenario:

The case involves an employment dispute over non-disclosure of company trade secrets by a company’s employees.  A supervisor at the company verbally requests copies of non-disclosure agreements related to several of his employees from his HR director and the HR director emails a copy of those non-disclosure agreements attached to an email with the subject “Requested files” and the body stating “Here you go…” (or something to that effect).  A search for “non-disclosure” retrieves the attached agreement, but not the email, which doesn’t really have any pertinent information on it.  Only part of the email “family” is responsive to the search.  This is common.

If it’s important to produce all communications between parties at the company regarding non-disclosure agreements, this email communication could be missed – unless your review protocol includes capturing the family members of responsive files and your review software provides an option to view the family members of responsive files and include them in search results.  There are rare cases where parties agree to limit production to actual responsive files and not produce the families, but that’s unusual.

If your case isn’t one of those rare exceptions, make sure you have a well thought out protocol and robust software for including family members in your search results and in your document reviews for responsiveness, as well as automated and manual Quality Assurance (QA) and Quality Control (QC) checks to ensure your production contains complete family groups.  Singing We Are Family doesn’t just make you a Sister Sledge (or 1979 Pittsburgh Pirates) fan, it may also make you an eDiscovery geek, determined to keep family groups together in your production.  :o)

So, what do you think?  How do you handle family groups in discovery?  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 Rules Government’s Use of Stingray to Locate Suspect Was Unwarranted: eDiscovery Case Law
 In United States v. Lambis, No. 15cr734 (S.D.N.Y. July 12, 2016), 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.

Case Background

In 2015, the US Drug Enforcement Administration (“DEA”) was conducting an investigation into an international drug-trafficking organization and sought a warrant for pen register information (record from the service provider of the telephone numbers dialed from a specific phone) and cell site location information (“CSLI”) for a target cell phone as part of that investigation. CSLI allows the target phone’s location to be approximated by providing a record of “pings” sent to cell sites by a target cell phone to approximate where the phone has been used.  Using CSLI, DEA agents were able to determine that the target cell phone was located in the general vicinity of “the Washington Heights area by 177th and Broadway.”

However, this CSLI was not precise enough to identify the specific apartment building, much less the specific unit in the building.  To isolate the location more precisely, the DEA deployed a technician with a cell site simulator (a device known as a “Stingray” that locates cell phones by mimicking the service provider’s cell tower and forcing cell phones to transmit “pings” to the simulator) to the intersection of 177th Street and Broadway.  Using the “Stingray”, the DEA technician was able to locate the building and then the unit where the defendant was located.  That same evening, DEA agents knocked on the defendant’s door and obtained consent from his father to enter the apartment, then obtained consent from the defendant to enter his bedroom where they recovered narcotics, three digital scales, empty zip lock bags, and other drug paraphernalia.  The defendant filed a motion to suppress the evidence.

Judge’s Ruling

Noting that a “Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable”, Judge Pauley referenced Kyllo v. United States, where Government agents used a thermal-imaging device to detect infrared radiation emanating from a home.  In that case, the Court held that “[w]here . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Judge Pauley then stated “Here, as in Kyllo, the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the ‘pings’ from Lambis’s cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.”  He also stated this:

“Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device. Perhaps recognizing this, the Department of Justice changed its internal policies, and now requires government agents to obtain a warrant before utilizing a cellsite simulator.”

As a result, Judge Pauley granted the defendant’s motion to suppress the evidence that was obtained by the search, even though the defendant’s father and the defendant had given consent to the search and access.

So, what do you think?  Should a warrant be required for “Stingray” devices?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to Sharon Nelson at Ride the Lightning for the tip!

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

Cooperation in Predictive Coding Exercise Fails to Avoid Disputed Production: eDiscovery Case Law
 In Dynamo Holdings v. Commissioner of Internal Revenue, Docket Nos. 2685-11, 8393-12 (U.S. Tax Ct. July 13, 2016), Texas Tax Court Judge Ronald Buch ruled denied the respondent’s Motion to Compel Production of Documents Containing Certain Terms, finding that there is “no question that petitioners satisfied our Rules when they responded using predictive coding”.

Case Background

In this case involving various transfers from one entity to a related entity where the respondent determined that the transfers were disguised gifts to the petitioner’s owners and the petitioners asserted that the transfers were loans, the parties previously disputed the use of predictive coding for this case and, in September 2014 (covered by us here), Judge Buch ruled that “[p]etitioners may use predictive coding in responding to respondent’s discovery request. If, after reviewing the results, respondent believes that the response to the discovery request is incomplete, he may file a motion to compel at that time.”

At the outset of this ruling, Judge Buch noted that “[t]he parties are to be commended for working together to develop a predictive coding protocol from which they worked”.  As indicated by the parties’ joint status reports, the parties agreed to and followed a framework for producing the electronically stored information (ESI) using predictive coding: (1) restoring and processing backup tapes, (2) selecting and reviewing seed sets, (3) establishing and applying the predictive coding algorithm; and (4) reviewing and returning the production set

While the petitioners were restoring the first backup tape, the respondent requested that the petitioners conduct a Boolean search and provided petitioners with a list of 76 search terms for the petitioners to run against the processed data.  That search yielded over 406,000 documents, from which two 1,000 document samples were conducted and provided to the respondent for review.  After the model was run against the second 1,000 documents, the petitioners’ technical professionals reported that the model was not performing well, so the parties agreed that the petitioners would select an additional 1,000 documents that the algorithm had ranked high for likely relevancy and the respondent reviewed them as well.  The respondent declined to review one more validation sample of 1,000 documents when the petitioner’s technical professionals explained that the additional review would be unlikely to improve the model.

Ultimately, using the respondent’s selected recall rate of 95 percent, the petitioners ran the algorithm against the 406,000 documents to identify documents to produce (followed by a second algorithm to identify privileged materials) and, between January and March 2016, the petitioners delivered a production set of approximately 180,000 total documents on a portable device for the respondent to review and included a relevancy score for each document – ultimately, the respondent only found 5,796 to be responsive (barely over 3% of the production) and returned the rest.

On June 17, 2016, the respondent filed a motion to compel production of the documents identified in the Boolean search that were not produced in the production set (1,353 of 1,645 documents containing those terms they claimed were not produced), asserting that those documents were “highly likely to be relevant.”  Ten days later, the petitioner filed an objection to the respondent’s motion to compel, challenging the respondent’s calculations of documents that were incorrectly produced by noting that only 1,360 of documents actually contained those terms, that 440 of them had actually been produced and that many of the remaining documents predated or postdated the relevant time period.  They also argued that the documents were selected by the predictive coding algorithm based on selection criteria set by the respondent.

Judge’s Ruling

Judge Buch noted that “[r]espondent’s motion is predicated on two myths”: 1) the myth that “manual review by humans of large amounts of information is as accurate and complete as possible – perhaps even perfect – and constitutes the gold standard by which all searches should be measured”, and 2) the myth of a perfect response to the respondent’s discovery request, which the Tax Court Rules don’t require.  Judge Buch cited Rio Tinto where Judge Andrew Peck stated:

“One point must be stressed – it is inappropriate to hold TAR [technology assisted review] to a higher standard than keywords or manual review.  Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using from using TAR for review.”

Stating that “[t]here is no question that petitioners satisfied our Rules when they responded using predictive coding”, Judge Buch denied the respondent’s Motion to Compel Production of Documents Containing Certain Terms.

So, what do you think?  If parties agree to the predictive coding process, should they accept the results no matter what?  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.

Even in Baseball, Hacking Can Get You Prison Time: eDiscovery Trends
 Just because it’s “just a game” doesn’t mean you can’t go to prison for computer hacking…


Last June, we covered this story about the St. Louis Cardinals, one of the most successful teams in baseball over the past two decades, as under investigation by the F.B.I. and Justice Department prosecutors, accused of hacking into an internal network of my hometown team, the Houston Astros, to steal internal discussions about trades, proprietary statistics and scouting reports, among other competitive information.  As a result of the investigation, the former scouting director of the Cardinals, Christopher Correa (not to be confused with Astros star shortstop Carlos Correa), was sentenced to nearly four years in prison Monday for hacking the Astros’ player-personnel database and email system.

Correa had pled guilty in January to five counts of unauthorized access of a protected computer from 2013 to at least 2014, the same year he was promoted to director of baseball development in St. Louis. He was fired last summer and now faces 46 months behind bars and a court order to pay $279,038 in restitution.

The data breach was reported in June 2014 when Astros general manager Jeff Luhnow told reporters the team had been the victim of hackers who accessed servers and proceeded to publish online months of internal trade talks. Luhnow had previously worked for the Cardinals.  The FBI said Correa was able to gain access using a password similar to that used by a Cardinals employee who “had to turn over his Cardinals-owned laptop to Correa along with the laptop’s password” when he was leaving for a job with the Astros in 2011. The employee was not identified, though Luhnow left St. Louis for Houston in December of that year to become general manager of the Astros.

So, not only can accessing your former company’s data with a shared password make you a hacker, using a variation of a departed employee’s old password to access data at his new employer can also make you a hacker.  You could even face jail time for deleting employer files before leaving your job.  A few more decisions like this might actually cut down on cybersecurity breaches within organizations.  Then again, it might not.

So, what do you think?  Do you expect to see more breaches like this between competitors in various industries?  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 are the Results of the Inaugural Best of Corporate Counsel Survey: eDiscovery Trends

Hard to believe that this is their inaugural survey of the top providers to the in-house corporate legal marketplace, but Corporate Counsel just released its first Best of Corporate Counsel results and those results include rankings in a few eDiscovery categories.

As they note in their introductory letter, Best of Corporate Counsel highlights the businesses and individuals who garnered the most votes from members of the in-house legal community from law-firm performance, data management, legal research to technology, finance, outsource services and more.  The Corporate Counsel community was notified of the ballot through direct emails, print advertising, social media updates and online advertisements across American Lawyer Media (ALM)’s network of websites.  The ballot consisted of 55 categories and over 1,500 votes were cast in this initial survey.

The survey results start here and span eight pages with advertisements interspersed throughout (winners like to gloat, after all).  Here are the results of some of the notable eDiscovery categories:

Best of Online Review Platform

  1. Relativity by kCura
  2. CloudNine Discovery
  3. Kroll Ontrack

Shameless plug warning: Did you think I was going to start anywhere else?  :o)  Seriously though, CloudNine is pleased and proud to have been voted #2 behind Relativity (who is a bit more well-known than we are) and we want to thank those who voted for us.  We’re the Avis of the eDiscovery online review platforms – we try harder.  Think they’ll let us borrow that slogan?  Anyway, here are some other category results…

Best of Legal Hold Solution

  1. Thomson Reuters Concourse Legal Hold
  2. Mitratech Legal Hold
  3. Legal Hold Pro by Zapproved

Best of Managed Document Review Service

  1. Inspired Review
  2. RVM
  3. FTI Technology

Best of Managed eDiscovery & Litigation Support Services

  1. Inspired Review
  2. RVM
  3. Discovia

Best of End-To-End eDiscovery Provider

  1. RVM
  2. Discovia
  3. Epiq Systems

Best of Technology Assisted Review eDiscovery Solution

  1. Inspired Review
  2. RVM
  3. Discovia

Best of Data & Technology Management eDiscovery Provider

  1. Epiq Systems
  2. Consilio / Huron Legal
  3. RVM

Best of Data Recovery Solution Provider

  1. Discovia
  2. Kroll Ontrack
  3. Consilio / Huron Legal

So, what do you think?  Do you agree with the selections or do you have a different favorite provider in any of these categories?  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 Rules that Judges Can Consider Predictive Algorithms in Sentencing: eDiscovery Trends

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

As noted in Court: Judges Can Consider Predictive Algorithms in Sentencing (written by Joe Palazzolo), the Wisconsin Supreme Court, in a unanimous ruling, upheld a six-year prison sentence for 34-year-old Eric Loomis, who was deemed a high risk of re-offending by a popular tool known as COMPAS (Correctional Offender  Management Profiling for Alternative Sanctions), a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.

“Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s right to due process,” wrote Justice Ann Walsh Bradley of the Wisconsin Supreme Court.

During his appeal in April after pleading guilty to eluding an officer and no contest to operating a vehicle without the owner’s consent, 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.  Loomis, a registered sex offender, had been then sentenced to six years in prison because his score on the COMPAS test noted he was a “high risk” to the community.

As part of the ruling, Justice Bradley ordered state officials to inform the sentencing court about several cautions regarding a COMPAS risk assessment’s accuracy: (1) the proprietary nature of COMPAS has been invoked to prevent disclosure of information relating to how factors are weighed or how risk scores are to be determined; (2) risk assessment compares defendants to a national sample, but no crossvalidation study for a Wisconsin population has yet been completed; (3) some studies of COMPAS risk assessment scores have raised questions about whether they disproportionately classify minority offenders as having a higher risk of recidivism; and (4) risk assessment tools must be constantly monitored and re-normed for accuracy due to changing populations and subpopulations.

And, the court also had guidance for how the scores should be used, as well:

“Although it cannot be determinative, a sentencing court may use a COMPAS risk assessment as a relevant factor for such matters as: (1) diverting low-risk prison-bound offenders to a non-prison alternative; (2) assessing whether an offender can be supervised safely and effectively in the community; and (3) imposing terms and conditions of probation, supervision, and responses to violations.”

So, while the sentencing judge may take COMPAS scores into consideration, they can’t use it to justify making a sentence longer or shorter, or serve as the sole factor in determining whether someone should be sentenced to prison or released into the community.  As Judge Bradley wrote in her opinion, “Using a risk assessment tool to determine the length and severity of a sentence is a poor fit”.

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.

Appeals Court Upholds Defendant’s Request for eDiscovery Cost Reimbursement: eDiscovery Case Law

In Deere & Co. v. Duroc, LLC et. al., No. 2014-1697 (Fed. Cir., May 26, 2016), after the defendants conceded much of the storage and hosting costs they had claimed, the Federal Circuit Court of Appeals affirmed the district court ruling to uphold cost taxation requested by the defendants, including eDiscovery costs.

Case Background

In this case where the plaintiff sued the defendants for patent infringement, the court granted summary judgment in favor of the defendants and ordered the Clerk of Court to enter judgment for both Defendants, with costs to be assessed against the plaintiff.  The defendants submitted their bills of costs, and the Clerk’s assessment was reviewed and affirmed by the district court, which stated that it had “carefully studied the parties’ submissions and held a telephonic hearing solely to address these costs issues”.

The plaintiff appealed the summary judgment of non-infringement, which was vacated on appeal and remanded for trial.  After trial, the jury found that the plaintiff’s patent was not infringed, and the district court entered judgment in favor of the defendants, who again submitted their bills of taxable costs.  The plaintiff objected to various requested costs as excessive, beyond the authority of the district court to tax, or lacking the required documentation.  The district court reviewed the assessments and upheld most of the costs, approving the taxation as “supported by 28 U.S.C. § 1920, legal authorities cited in the Defendants’ briefs, and in view of the length and complexity of the fourteen-day long patent trial.”

The plaintiff appealed, challenging the assessment of costs in three areas: (1) costs related to document copying, (2) costs related to eDiscovery, and (3) costs related to trial exemplifications.  With regard to eDiscovery, various aspects of the eDiscovery process were governed by a negotiated ESI Agreement that required various eDiscovery actions to be undertaken. The ESI Agreement required that all documents be produced electronically in a database format, product numbered, searchable, with OCR and metadata extracted and identified, and produced on suitable storage media.

Appellate Court’s Ruling

With regard to the eDiscovery costs, the defendants conceded much of the storage and hosting costs they had claimed on appeal, leaving the appellate court to address only the issue of whether e-discovery costs are taxable as a matter of law.  The appeals court noted that “The district court held that when the costs of complying with the agreement are within the obligations of the Agreement and reasonably incurred in complying with the Agreement, they are recoverable” and those costs “are within the scope of § 1920”.  As a result, the appeals court concluded that the district court acted within its discretion and upheld the remaining eDiscovery costs claimed, as well as the other costs related to document copying and trial exemplifications.

So, what do you think?  Will ESI agreements make it easier to recover eDiscovery costs?  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.