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ACEDS Starts Today! (Sort Of): eDiscovery Trends

As we noted in our “pre-game” look at the ACEDS conference, today is the first day of the conference!  Well, tomorrow is actually the first day of the conference, but today ACEDS will be offering three pre-conference seminars that should enable attendees identify better ways to address their cybersecurity needs, learn blogging tips and tricks from experienced bloggers (including me) and prepare for the CEDS exam.

These full day seminars should have something for everybody.  They are:

Pre-Conference CEDS Live Exam Prep Seminar

The Pre-Conference CEDS Live Exam Prep Seminar is the ultimate tool to teach you crucial knowledge of the e-discovery process and better prepare you for the Certified E-Discovery Specialist Certification exam. Once completed, you will be more prepared to become a CEDS and control costs and minimize risks associated with e-discovery. Subjects covered span a wide range of e-discovery knowledge: pre-litigation issues, sources of ESI, cost; budgeting, review methods and more.  Note: This event includes lunch on-site.

Instructor: Helen Bergman Moure, CEDS – Principal, Lex Aperta.  Rate: $495.

Cyber Security for Legal Professionals

The Cyber Security for Legal Professionals pre-conference seminar brings together global experts from government, industry, law firms and service providers to discuss and learn about pressing security issues with a special emphasis on e-discovery, evidence and risk mitigation. There will be a live ethical hacking/dark web demonstration, a discussion of the FTC’s trend forward enforcement around security and the Sedona Conference™ white paper on Security, what to expect when reporting to or being informed by the FBI about a breach, cyberinsuance and protocols for retaining evidence while ameliorating live threats.  A certificate of attendance will be given to attendees, and CLE will be applied for in NY, PA and CA.  Non-Member Price: $695, Member Price: $595, Government Price: $395.

Speakers: David Shonka, acting General Counsel for the FTC; Roy Zur, CEO of Cybint; SSA Jay Kramer, NYO Cyber Division; Courtney Lancaster, Fidelis Cybersecurity and Baltimore Chapter Lead for the Women’s Society of Cyber Jujitsu.

Law Student Blogger/Social Invitational

The Law Student Blogger/Social Invitational pre-conference seminar brings together global blogging and social participants from the eDiscovery and Legal Technology community with law students forward thinking enough to create and share their knowledge via online media while still in school. While our hosts Ari Kaplan, Rob Robinson, Doug Austin and Robin Thompson are prolific and accomplished online professionals, we expect to learn just as much from our law student attendees as our hosts. Expect a lively discussion, with tips on tools, methodologies and sources to contribute to justice, build a brand, maximize networks and to attract followers and potential employers.  Law Student Price: $100, Member Price: $295, Non-Member Price: $595.

Speakers: Ari Kaplan, Principal, Ari Kaplan Advisors; Rob Robinson, Managing Director, Complex Discovery; Doug Austin, Editor, eDiscovery Daily; Robin Athlyn Thompson, Vice President, Marketing, BIA.

Click here for more information or here to register.  You can still make it if you register promptly(!) this morning.  Tomorrow, the regular conference begins in earnest and I will be covering the conference for eDiscovery Daily and will provide info about the sessions before each day, so that attendees will know what’s available.  And our parent company, CloudNine will be one of the exhibitors at the show, at booth #106.  If you’re there, come by and see us!

So, what do you think?  Are you planning to attend ACEDS 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.

Here is Your “Pre-Game” Look at The ACEDS Conference: eDiscovery Trends

It’s practically here!  The ACEDS conference is next week!  Here is a “pre-game” (i.e., “pre-conference”) look at some of the events at next week’s conference being held at the Grand Hyatt New York (located at 109 East 42nd Street at Grand Central Terminal) from Monday, the 18th through Wednesday, the 20th.

Next week, I will be covering the conference for eDiscovery Daily and will provide info about the sessions before each day, so that attendees will know what’s available.  And our parent company, CloudNine will be one of the exhibitors at the show, at booth #106.  If you’re there, come by and see us!

Here are a couple of notable events/sessions each day:

Monday, April 18:

This day is technically not the conference, but the pre-conference seminars at ACEDS and there are some good ones to choose from.

Obviously, I’m going to highlight the Law Student Blogger/Social Invitational seminar, which is designed to bring together blogging and social participants from the eDiscovery and Legal Technology community with law students forward thinking enough to create and share their knowledge (or consider doing so) via online media while still in school.  You’ll get to learn from experienced bloggers like Ari Kaplan, Rob Robinson, Robin Thompson and me!  We won’t have any tax tips on tax day, but will have plenty of blogging tips!  If you already have a blog or are interested in starting a blog, join us and learn about the benefits of blogging, how to get started, establishing your blogging workflow, avoiding liability and leveraging social media for professional and personal benefit.

Also, on Monday, EDRM is having its Spring Workshop on that Monday at the same venue in conjunction with the ACEDS conference as well, so if you’re an EDRM member, you can get a 25% discount for attending both.

Speaking of EDRM, they have just released a new EDRM model wall poster to serve as a training tool for legal professionals and eDiscovery practitioners.  Consider this the EDRM diagram “on steroids” – it replaces the Information Governance box with the full-fledged IGRM diagram and provides a brief description within each phase box of that corresponding phase.  Very useful!  In addition to the EDRM sponsors and EDRM’s affinity sponsor ACEDS recognized on the bottom of the poster, it’s cool to see eDiscovery Daily recognized as EDRM’s education partner.  :o)

Tuesday, April 19:

The conference starts in earnest!  The opening keynote presentation at 9am on Tuesday will be presented by David Shonka, Acting General Counsel for the Federal Trade Commission (FTC), who will discuss the FTC’s Future Forward Stewardship of Privacy and Security, covering current regulatory frameworks, guidelines and recommendations.  A very timely topic indeed!

At 2:00 on Tuesday is a session with an interesting title – E-Discovery Project Management: Ask Forgiveness, Not Permission, presented by Jason D. Wallach, Albert J. Buckwalter and Mike Quartararo.  They will discuss how project management may be used to maximize efficiency, control risk, and produce sound, defensible results across the EDRM without the high-level buy-in needed for an organization-wide initiative.  We need more project management related topics, so I will be interested to attend this session.

Wednesday, April 20:

Rise and shine!  At 8am, Rob Robinson, Julie Brown and Calvin Weeks will present The Anatomy of a Tweet, where they will discuss how to obtain evidence from any social platform, with and without user login credentials.

At 11am, Tania Mabrey, Craig Ball and Tom O’Connor will discuss the EDNA Challenge Part 2, where they follow up on Craig’s original challenge from a few years ago (discussed in his paper E-Discovery for Everybody: The EDna Challenge) to conduct eDiscovery in a case on a budget of only $1,000.  The new challenge is to do so at a cost of $5,000 (but then again, data volumes have risen dramatically, so it may be even more of a challenge).  At 1:15, Craig will also look into his crystal “Ball” (get it?) to discuss the future of eDiscovery.

To register for the conference, click here.  Prices vary, depending on a variety of factors, such as whether you’re an ACEDS member, employee of a government or non-profit organization, or student and whether you’re attending the entire conference or one of the pre-conference seminars.

So, what do you think?  Are you attending the ACEDS conference next week?  If not, why not?  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.

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.

Beep, Beep! Terminating Sanctions against Defendant for Spoliation Affirmed on Appeal: eDiscovery Case Law

As Wile E. Coyote has learned, you don’t want to mess with the Roadrunner.  Especially if you’ve been found to have willfully spoliated data…  :o)

In Roadrunner Transportation Services, Inc. v. Tarwater, Nos. 15-55448 and 14-55529 (9th Cir., Mar. 18, 2016), the Ninth Circuit affirmed the district court’s entry of default judgment and award of attorneys’ fees in favor of the plaintiff, ruling that the district court did not abuse its discretion by entering default judgment as a sanction for the defendant’s deletion of data from his laptop computers .  The Ninth Circuit also affirmed the district court’s award of $325,000 in attorneys’ fees to the plaintiff and also affirmed the lower court ruling to limit the plaintiff’s compensatory damages to the four customers specifically identified in the First Amended Complaint.

In considering the defendant’s appeal of the district court’s entry of default judgment and award of attorneys’ fees in favor of his former employer and the plaintiff’s cross-appeal of the district court’s compensatory damages award, the Ninth Circuit ruled, as follows:

“1. The district court did not abuse its discretion by entering default judgment as a sanction for Tarwater’s deletion of data from his laptop computers…There was ample evidence that Tarwater deleted emails and files on his laptops after receiving multiple preservation demands from Roadrunner, and even after the court explicitly ordered Tarwater to preserve “all data” on his electronic devices. In addition to Tarwater’s own admissions, a third-party computer expert concluded that files on one of Tarwater’s devices had been deleted and overwritten during the litigation, and that the deletions likely “bypasse[d] the [computer’s] Recycle Bin” through a user-initiated process. In light of the evidence of spoliation, and the nature of Roadrunner’s claims, the district court did not clearly err in finding that Tarwater willfully destroyed the data, that Roadrunner had been deprived of its “primary evidence of Tarwater’s alleged misappropriation and related misconduct,” and that a less drastic sanction could not have adequately redressed the prejudice to Roadrunner.”

“2. The district court did not abuse its discretion by awarding Roadrunner $325,000 in attorneys’ fees…The court carefully considered the billing entries and reasonableness of the hourly rates for Roadrunner’s attorneys and reduced the award to reflect an appropriate level of staffing for the case. The district court also properly accounted for the degree of success achieved by Roadrunner, as well as the public’s interest in protecting trade secrets.”

“3. The district court properly limited Roadrunner’s compensatory damages to the four customers specifically identified in the First Amended Complaint.”

“AFFIRMED.”

So, what do you think?  Did the defendant deserve a terminating sanction?  Please share any comments you might have or if you’d like to know more about a particular topic.

We’re just one week away from the pre-conference seminars at ACEDS!  For the first time, ACEDS is offering a number of pre-conference events focused on some of the most important issues and trends in eDiscovery. These include a cybersecurity seminar addressing the recent data breaches at major law firms, a networking forum hosted by Women in E-Discovery, and the Law Student Blogger/Social Invitational pre-conference seminar with Ari Kaplan, Rob Robinson, Robin Thompson and me!  If you already have a blog or are interested in starting a blog, join us and learn about the benefits of blogging, how to get started, establishing your blogging workflow, avoiding liability and leveraging social media for professional and personal benefit.  Hope to see you in New York on Monday!

Image © Warner Bros.

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.

“Panama Papers” Hack Wasn’t an Inside Job, Says Founding Partner: eDiscovery Trends

It seems that everybody is talking about the huge data leak of 11.5 million documents (2.6 total TB of data – that’s right, terabytes) at Panama-based law firm Mossak Fonseca that appears to have exposed illicit offshore holdings of global political leaders and celebrities (among others), dubbed the “Panama Papers”.  Now, a founding partner at the firm has indicated that the leak was not an inside job.

“We rule out an inside job. This is not a leak. This is a hack,” founding partner Ramon Fonseca told Reuters at the company’s headquarters in Panama City’s business district.  “We have a theory and we are following it,” he continued, without elaborating.

“We have already made the relevant complaints to the Attorney General’s office, and there is a government institution studying the issue,” he added, flanked by two press advisers.

Claiming that “[t]he (emails) were taken out of context”, Fonseca said that “The only crime that has been proven is the hack.  No one is talking about that. That is the story.”

As the Reuters article notes, governments across the world have begun investigating possible financial wrongdoing by the rich and powerful after the International Consortium of Investigative Journalists (ICIJ) published a report on Monday based upon a yearlong study of some 2.6 TB of leaked data, mostly emails from the law firm that span four decades.

The papers have revealed financial arrangements of prominent figures, including friends of Russian President Vladimir Putin, relatives of the prime ministers of Britain and Pakistan and Chinese President Xi Jinping, and the president of Ukraine.  On Tuesday, Iceland’s prime minister, Sigmundur David Gunnlaugsson, resigned, becoming the first casualty of the leak.

The idea that the data was hacked externally as opposed to someone inside the firm stealing or copying a hard drive or tape seems difficult to believe.  It takes a long time to transmit 2.6 terabytes of data – we’re talking weeks, not days, of continuous transmission.  Either the firm was utterly clueless as their sensitive data was being pulled right out from under their noses for a long period of time or there is more to the story.

One story that was somewhat humorous this week was that George Mason University was forced to tweak the renaming of its law school to honor the late Supreme Court Justice Antonin Scalia because of an unfortunate acronym.  The school had to change the proposed name from the Antonin Scalia School Of Law (see the problem here?) to the Antonin Scalia Law School.

The acronym for Mossak Fonseca is an unfortunate acronym too.  I’ll bet when the members of that firm realized that their data had escaped out into the public, they uttered a few unfortunate acronyms of their own (possibly in both Spanish and English).

So, what do you think?  Do you believe that the data was hacked from the outside?  Or do you think something else happened?   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 a “Luddite” Can Learn the Ins and Outs of Data Backups with this Guide: eDiscovery Best Practices

You have to love an instructional guide that begins with a picture of Milton Waddams (the sad sack employee obsessing over his red stapler in the movie Office Space) and ends with a nice consolidated list of ten practice tips for backups in discovery.

Leave it to Craig Ball to provide that and more in the Luddite Lawyer’s Guide to Backup Systems, which Craig introduces in his Ball in Your Court blog here.  As Craig notes in his blog, this guide is an update from a primer that he wrote back in 2009 for the Georgetown E-Discovery Institute.  He has updated it to reflect the state-of-art in backup techniques and media and also added some “nifty” new stuff and graphics to illustrate concepts such as the difference between a differential and an incremental backup.  Craig even puts a “Jargon Watch” on the first page to list the terms he will define during the course of the guide.

Within this 20 page guide, Craig covers topics such as the Good and Bad of Backups, the differences between Duplication, Replication and Backup, the Major Elements of Backup Systems and the types of Backup Media and characteristics of each.  Craig illustrates how restoration to tape (despite popular opinion to the contrary) could actually be the most cost-effective way of recovering ESI in a case.  And, Craig discusses the emergence of the use of the Cloud for backups (which should come as no surprise to many of you).  He concludes with his Ten Practice Tips for Backups in Civil Discovery, which is a concise, one-page reference guide to keep handy when considering backups as part of your information governance and discovery processes.

Whether you’re a Luddite lawyer or one who is more apt to embrace technology, this guide is sure to provide an essential understanding of how backups are created and used and how they can be used during the discovery process.  Backups may be the Milton Waddams of the eDiscovery world, but they’re still important – remember that, at the end of the movie, Milton was the one relaxing on the beach with all of the money.  :o)

So, what do you think?  How do backups affect your eDiscovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Image © Twentieth Century Fox

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.

Spring has Sprung! Don’t Plant – Build – a (Decision) Tree: eDiscovery Best Practices

Having recently needed to walk a client through a decision process to determine how to proceed to index and search a huge volume of data, it seems timely to revisit this topic.

When a new case is filed, there are several important decisions that the lead attorney has to make.  Those decisions that are made early in the life cycle of a case can significantly affect how discovery is managed and how costly the discovery process can be for that case.  Decision trees enable attorneys to work through the decision process up front to help them make sound, logical decisions which can lead to more efficient management of the discovery process.

What is a Decision Tree?

A decision tree is a decision support tool that uses a tree-like graph or model of decisions and their possible consequences.  It is essentially a flowchart in which each internal node represents a test on an attribute, each branch represents outcome of that test and each leaf node represents the decision taken after computing all attributes.

If you have ever prepared an analysis at the outset of a case to estimate the probability of winning the case and determining whether to litigate or attempt to settle, you may have already prepared some sort of decision tree to make those decisions.  You probably looked at the probability of winning, probabilities of different award amounts, extrapolated the costs for litigating against the potential award amounts and used that to decide how to proceed.  The graphic above provides an example of what a decision tree, drawn as a flowchart, might look like to represent that process.

Uses of Decision Trees in Discovery

Decision trees identify the available alternatives to tackle a particular business problem and can help identify the conditions conducive to each alternative.  Issues in discovery for which a decision tree might be warranted could include:

  • Decide whether to outsource litigation support and discovery activities or keep them in-house;
  • Select an appropriate discovery solution to meet your organization’s needs within its budget;
  • Decide when to implement a litigation hold and determine how to comply with your organization’s ongoing duty to preserve data;
  • Determine how to manage collection procedures in discovery that identify the appropriate custodians for each type of case;
  • Decide whether to perform responsiveness and privilege review of native files or convert to an image format such as TIFF or PDF to support those review processes;
  • Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel.

While they promote efficiency during the discovery process by promoting up front planning and walking through the logic of the decision making process, decision trees also reduce mistakes in the process by making the process more predictable and repeatable, promoting consistency in handling cases.  Once you have the decision process documented via a decision tree (and underlying assumptions don’t change), the plan of action will remain consistent.  If assumptions do change over time, your decision tree can evolve just like a real tree – adding or removing “branches” as needed to reflect the current decision making process.

So, what do you think?  Does your organization use decision trees in your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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 Request for Cost Reimbursement for Hosted eDiscovery Database: eDiscovery Case Law

In Associated Electric & Gas Insurance Services, et. al. v. BendTec, Inc., No. 14-1602 (D. Minn., Feb. 24, 2016), Minnesota District Judge Michael J. Davis found that the decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp. to deny certain eDiscovery costs to be persuasive and ruled that “the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)”, denying the prevailing defendant’s request for reimbursement of over $123,000 in costs to maintain their ESI database.

Case Background

The defendant asserted that the plaintiffs produced approximately 19 gigabytes of data from a prior related lawsuit and it retained eDiscovery vendors to create and maintain an electronic platform for these documents (at a cost of $90 per gigabyte per month), so they could be processed and hosted in a viewable format.  The defendant eventually added its additional 192 gigabytes of data in preparation for production to the plaintiffs, which was hosted at the same $90 per gigabyte per month rate.

After the court entered judgment in favor of the defendant in June 2015, the defendant submitted its bill of costs to the Clerk of Court in July 2015 and the plaintiffs filed their objection to the bill of costs in August 2015.  The Clerk of Court entered a Cost Judgment on October 15, 2015 denying the taxation of costs by the defendant on the basis that fees for electronic discovery are not taxable by the Clerk. The defendant subsequently filed a motion for review of cost judgment, seeking to recover $126,970.80 in costs incurred by creating and maintaining an electronic database to hold documents produced by the plaintiffs and collecting and securing its own documents.  Following an objection from the plaintiffs, the defendant reduced the requested amount to $123,260.80.

Judge’s Ruling

Noting that “a number of courts that have addressed whether costs associated with e-discovery are recoverable under § 1092 have found that such costs are recoverable only to the extent they qualify as exemplification fees or the costs of making copies”, Judge Davis cited Race Tires America, Inc. v. Hoosier Racing Tire Corp., indicating that “the district court awarded the prevailing party the costs for e-discovery on the basis that it ‘appeared to be the electronic equivalent of exemplification and copying.’”  However, Judge Davis indicated that, on appeal, “the Third Circuit held that where e-discovery did not produce illustrative evidence or the authentication of public records, the costs for such discovery did not qualify as exemplification fees under § 1920(4) and is not recoverable” (we covered both rulings here and here).  Judge Davis specifically noted that “[a]s to costs associated with the collection and preservation of electronically stored information (“ESI”), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents, the court held that such costs are not recoverable under §1920(4).”

Indicating that other courts had found the Race Tires decision persuasive, Judge Davis stated that he “also finds the Race Tire decision persuasive and holds that the costs of creating and maintaining an electronic platform for e-discovery are not recoverable under § 1920(4)” and denied the defendant’s motion for recovery of those costs.

So, what do you think?  Is § 1920(4) still timely for consideration of cost reimbursement to prevailing parties?  Or should it be revisited and updated to reflect the current technological environment?  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.

No Fooling! The ACEDS Conference is Later this Month!: eDiscovery Trends

This is not an April Fool’s Joke!  Just when New York City thought it was safe from eDiscovery professionals – we’re all coming back for the ACEDS conference!  And, eDiscovery Daily and CloudNine will be a part of the show!

The conference is being held this year on Tuesday and Wednesday April 19 and 20, with pre-conference seminars being held the previous day on Monday, the 18th.  The conference will be held at the Grand Hyatt New York (located at 109 East 42nd Street at Grand Central Terminal).

This year’s panel topics include eDiscovery career challenges, the new rule changes, EDRM, information governance, predictive coding, data breach mitigation, and more.  From the opening keynote presentation on Tuesday by David Shonka, Acting General Counsel for the Federal Trade Commission (FTC), who will discuss the FTC’s Future Forward Stewardship of Privacy and Security, the conference promises to cover numerous relevant and timely topics for the eDiscovery professional.  And, with a collection of over 30 eDiscovery expert speakers that includes Craig Ball, George Socha, Tom O’Connor, Rob Robinson and some guy named Doug Austin (don’t be dissuaded from attending!) along with noted judges like Hon. James C. Francis IV (New York), Hon. Matthew Sciarrino, Jr. (New York) and Hon. Xavier Rodriguez (Texas), attendees will learn a lot.

Speaking of Craig, he will receive an ACEDS lifetime achievement award at the ACEDS Conference Awards Luncheon on Wednesday, April 20 along with Allison Brecher of Marsh and McLennan, Sheila Grela of Kennedy and Souza and Kim Taylor of Ipro.  Congratulations to all of the well-deserving award winners!

I will be covering the conference for eDiscovery Daily and will provide info about the sessions before each day, so that attendees will know what’s available.  And, CloudNine will be one of the exhibitors at the show.  If you’re there, come by our booth and say hi!

Also, on Monday, there are several pre-conference seminars that you can attend (regardless of whether you’re attending the overall show or not), including one for CEDS exam preparation and one about cyber security for legal professionals.

The third seminar on Monday is the Law Student Blogger/Social Invitational seminar, which is designed to bring together global blogging and social participants from the eDiscovery and Legal Technology community with law students forward thinking enough to create and share their knowledge (or consider doing so) via online media while still in school.  You’ll get to learn from experienced bloggers like Ari Kaplan, Rob Robinson, Robin Thompson and me and we get to learn from you as well!  We’d love to talk about blogging with you!

Not to be forgotten, EDRM is having its Spring Workshop on that Monday at the same venue in conjunction with the ACEDS conference as well, so if you’re an EDRM member, you can get a 25% discount for attending both.

To register for the conference, click here.  Prices vary, depending on a variety of factors, such as whether you’re an ACEDS member, employee of a government or non-profit organization, or student and whether you’re attending the entire conference or one of the pre-conference seminars.

So, what do you think?  Are you attending the ACEDS conference later this month?  If not, why not?  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.