Close
Enter your
text here

eDiscoveryDaily

Craig Ball of Craig D. Ball, P.C.: eDiscovery Trends

This is the fifth of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs in the United States and abroad, having delivered over 1,700 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media and he teaches E-Discovery and Digital Evidence at the University of Texas School of Law.  He currently blogs on eDiscovery topics at ballinyourcourt.com.

What are your general observations emerging eDiscovery trends for 2016?

{Interviewed Craig after LTNY, as he did not make it to the show this year}

I skipped LegalTech this year – first time in twenty years – because Mardi Gras was early this year, I chose the circus on the Mississippi over the one on the Hudson.  Still, I got lots of feedback from those who attended LTNY while I was catching beads at 29 parades.  I wanted to see if I’d missed anything of note.  The only trend that emerged was lack of change in the focus of the show.  LTNY is still dominated by electronic discovery as it has been for almost a decade; but, there are continued signs of consolidation within the industry as organizations fold into one another.

Not surprisingly, we don’t see outright failure in this space.  Companies don’t disappear, but instead reach a point where whatever is left is absorbed by a national brand for its equipment or core technology.  So, we’ve seen steady consolidation within the industry, and that trend continues.  As the broader economy goes, so goes litigation and discovery.

Another trend that I’ve observed is an increased focus on eDiscovery automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

The term “automation” has gotten some play lately.  I’m trying to figure out what each usage means because it’s still in the buzzword phase as marketers deploy the term in the never-ending struggle to differentiate their products. Automated workflows are key to Cloud SaaS offerings.  Hosted systems must be capable of programmatic routines to ingest and process data, effecting ready hand-off of data across processing and review.    An automated SaaS offering should be sufficiently autonomous to facilitate workflow across multiple stages of the EDRM with little manual intervention.

Assuming “automation” means  we can put something into the hopper and it will emerge ready for review or production in forms we were expecting, then automation is a necessary precursor to growth and cost effectiveness in hosted products.  That’s positive for consumers if it means price reductions and commoditization of features of electronic discovery.  It may not be so great for the vendor community unless they can scale up the volume.

In the case Nuvasive v. Madsen Medical, the Court recently vacated an adverse inference instruction sanction previously applied against the plaintiff because of the amendment to Rule 37(e).  Do you see that as a trend for other cases and do you expect that other parties that have been sanctioned will file motions to have their sanctions re-considered?

I don’t think it signals a trend. There are relatively few cases that fall into the transition point.  I don’t expect to see a rash of sanctions being reconsidered by virtue of the latest amendments.

Nuvasive is interesting because it goes to the issue of whether it’s fundamentally fair to impose the new Rules retroactively.  The Rules speak to that issue and make it clear that they can be applied retroactively as long as they operate fairly.  The amendments to the Rules make clear that serious sanctions (such as adverse inference instructions) require proof of an intent to deprive a discovering party of the particular information.  Nuvasive involved serious sanctions, so I can see why the Court might want to weigh amended Rule 37(e).  Still, I’m not sure why the parties and the Court failed to anticipate the Rule changes, as the amendment process was pretty far along in July 2015, when sanctions were imposed.  The tenor of the Court’s opinion in reversing himself was that it was just ‘bad luck’ that the amended rules kicked in when they did.

I think that we will see judicial action once termed “sanctions” couched in less-loaded terms.  After Rule 37(e), Courts will distinguish punitive responses from remedial actions designed to rectify unwarranted failure to preserve relevant information. New Rule 37(e) won’t tie the hands of jurists determined to rectify discovery abuse.  We’re already seeing push back from jurists unwilling to surrender discretionary authority when the facts demand fairness.   As well, we’ve seen at least one case where the Court reversed himself, citing 37(e) as the basis for reconsideration.  As is apparent in Nuvasive and in Judge Francis’ recent order in Cat 3, the Rules are tools, and they can be turned this way and that in determined hands.

Sanctions aren’t going away, and that’s a good thing.  We are mired in the last century when it comes to discovery.  Lawyers need direction, and sanctions opinions supply guidance.  There is little in the way of a “carrot” for eDiscovery – all we have is the “stick.”  If courts fail to sanction incompetence and abuse, then lawyers won’t pursue competence, and parties will continue to “twiddle their thumbs” until evidence disappears.  Few lawyers maliciously hide damaging evidence; but, they’re expert at rationalizing it away or, in the case of e-discovery, content to let their ignorance serve as their armor.  “What you don’t know, can’t hurt me,” is their credo.

What are you working on that you’d like our readers to know about?

I’m going back to basics.  Last year was about trying to develop a core curriculum and re-engineer my teaching to make it an engaging foundation in information technology for lawyers.  I hope 2016 will bring an increased ability to push out more information and reach more people.  I’m doing a project for the DC Bar where I will be providing evening CLE programs by live semi-weekly webcasts.  Small groups of motivated people are my sweet spot.  As always, I’m looking forward to this year’s Georgetown University Law School eDiscovery Training Academy, during the first full week in June.  Both the faculty and the students are delightful.  I’ve come to recognize that anyone willing to work at it can learn the technology they need to be formidable in e-discovery in just three solid days.  That’s less time than most of us spend at Starbucks each year.

I’m using the California ethics decision (which we covered here when it was still a Proposed Opinion) as a jumping off point for the concept of core competencies for lawyers.  As you know, the State Bar of California issued an advisory opinion last year identifying nine areas in which lawyers must either be competent in order to accept a case involving eDiscovery or must associate competent counsel or decline representation. That courageous opinion serves as an effective touchstone for talking to lawyers– not just in California, but all over– about the skills they must embrace to be competent to accept a case involving eDiscovery.

There are virtually no cases without electronic evidence, only cases where the lawyers choose to ignore it.  And there is so much more coming!  Never in history have advocates had so much powerful evidence at their disposal, and never have they been so content to look away.  Three days per advocate could change all that—a long weekend.  But, finding the time is only half the battle.  The other half is finding the course that doesn’t give short shrift to the “e” in e-discovery.

Candidly, 2016 is also about taking some time for me.  I’ve been doing 50 to 70 presentations a year for twenty years.  I average about four flights a week; so, I’m hoping to cut all that down by half.  I’m saying “no” more and stopping to smell the roses.  That’s why I’ve gotten a second home in New Orleans, and will spend more time reading, thinking and working on fewer projects with greater focus.  Every teacher needs a sabbatical, right?

Thanks, Craig, for participating in the interview!

And to the readers, as always, 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. eDiscoveryDaily 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 Matter Where You Are, You Can Still Attend the UF EDRM E-Discovery Conference: eDiscovery Trends

This year’s University of Florida EDRM E-Discovery Conference is coming up on March 30.  If you plan to attend in person, great!  But, if you can’t attend in person, the good news is that you don’t have to be there, or even in the state of Florida, to attend.

The fourth annual one-day conference provides a pathway for attorneys, paralegals and support professionals to move beyond simple keyword searching to basic data analytics, covering simple tools such as near duplicates analysis, automatic document grouping through technology assisted review, document clustering, and the process of finding “more like this” to manage your data collection during eDiscovery more efficiently.

The conference features a special kick off in the morning with Craig Ball speaking on the nine eDiscovery skills every litigator and trial attorney must have, includes a luncheon address by the Hon. Ralph Artigliere on emerging eDiscovery ethics and includes several sessions with a number of knowledgeable speakers and panelists covering a variety of data analytics topics, concluding with a judicial panel discussion on court expectations of attorney eDiscovery competence, the new federal eDiscovery rules, and “the good, the bad, and the ugly e-discovery hearing and motion practice.”  A link to the Agenda is here.

General and Ethics CLE credits for the conference are currently awaiting approval.  If you plan to attend in person, the event will take place in Holland Hall at the University of Florida, Levin College of Law.  But, if you can’t attend in person, the event will also be streamed online.  So, you don’t have to be present to win!  Or, at least to learn.  :o)

The conference costs $99 to attend in person or $49 to attend online.  It’s free to attend (either in person or online) if you’re a currently enrolled student in an ABA Accredited Law School, Accredited eDiscovery Graduate program, or Accredited Paralegal program or are University and College Faculty or Professional Staff, Judicial Officials, Clerks, or Employees of Government Bodies and Agencies.  To register for the conference, click here.

So, what do you think?  Are you attending the conference?  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.

Tom O’Connor of Advanced Discovery: eDiscovery Trends

This is the fourth of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom’s involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans and he is the Senior ESI Consultant with Advanced Discovery.

What are your general observations about LTNY this year and about emerging eDiscovery trends overall?

{Interviewed the first morning of LTNY, so the focus of the question to Tom was more about his expectations for the show and also about general industry trends}.

When I got here to the show, I bounced around a bit and talked to several people here and I think there’s a lot of uncertainty in people’s minds.  I hate to say that we’re at a crossroads, but a couple of different things are going on in technology right now and I think people are worried that they made the right decision.  I’m talking about both vendors making the right technology decision on where to take their company and clients making the right choice.

I was at a presentation given by the CEO of a major company in our space recently and he was asked “what keeps you up at night?”  He responded that what he was most worried about was whether his company was flexible enough to make quick changes and adaptations in the market, because if you can’t do that, you can lose business really quickly.  You can sink in 18 months no matter what your market share is.  So, as a vendor, you have to be thinking “can I see something and react and respond?”  I think that goes across the board in every segment of the EDRM.  Technology changes so fast and we’re a profession that works by looking in the rearview mirror.  We work with precedent; we don’t want to be that first person out there trying something new.  So, there’s a lot of uncertainty.

Related to that, I think that tension between corporate clients and big law firms is becoming intensified.  Once again, it revolves around questions such as “am I getting the best technology?”, “am I getting the best ROI?”, “should I be bringing eDiscovery in house?”.  I’m seeing a lot of corporations going to master services agreements (MSAs).  That’s something that we do a lot of at Advanced Discovery.  It’s almost like an in-between state where corporations are deciding not to bring eDiscovery fully in-house, but not giving it to the law firms either and they’re saying to companies like ours “why don’t you run it for us?”  If there’s a trend right now, I would say that’s it, especially based on discussions that I had with other show attendees last night.

I always seem to ask you about the state of attorneys and their knowledge (or, rather, their lack thereof) about eDiscovery.  Do you think there has been any positive change in the past year with regard to attorneys’ knowledge about eDiscovery?

A couple of months ago, I asked a well-known judge in the field that question and he said that he’s seen minimal change.  I’ve seen some change, but I think the word I would use to describe it is “glacial”.  There has been some movement.  We’re seeing many more law schools embrace technology training of some sort.  Unfortunately, many of those are not full-time faculty, they are either adjunct faculty or CLE, like the Georgetown eDiscovery Training Academy that I’m part of – that’s actually run by their CLE department, it’s not part of their core curriculum.  Judge Facciola teaches two courses at the school full time and Craig Ball is teaching one at the University of Texas Law School.  But, overall, I haven’t seen schools really embrace the idea that this should be part of the curriculum.  Until that happens, I think the change will continue to be slow.

A great case in point: I think Craig and I did one our standup routine videos for the eDiscovery Channel, where we talked about the California Bar’s recent Formal Opinion (No. 2015-193, which we covered here when it was still a Proposed Opinion) and they listed nine things you need to be able to know how to do.  But, are they going to train people on this?  Who is going to be responsible for educating people on this new duty that they’ve imposed?  Now, it’s only early February, so maybe the Bar in California is going to come up with some sort of program.  But, that’s the quandary that I see – “you have this duty, good luck with that!”

Of course, nobody has the resources to provide that for a million lawyers.  There are some excellent resources out there, like the Georgetown Academy, but we cap that at about sixty students.  Do the math – once a year, sixty students.  Mike Arkfeld has a great course at Arizona State that he has been developing – let’s say, maybe, a couple of hundred people show up there and half of them probably already know everything.  It’s a little bit here and a little bit here, but there hasn’t been a sea change.  I don’t mean to point the finger at the law schools, but it’s just that they would be the most obvious to implement change, along with the bar associations.  But, nobody wants to own responsibility.

I think the third thing is that I’m surprised that there hasn’t been a big commercial attempt at this.  That somebody like a Thomson Reuters or a LexisNexis hasn’t said “we’re going to offer a course”.  It’s almost like everyone is afraid – no one wants to say they’re offering certifications because they’re not willing to take the risk that something might “go south”.  It’s the quandary that ACEDS has had from day one – how to you say that someone is certified when, in many states, it’s considered the providence of the bar association to say that you’re a specialist in a field.  There was a Federal court decision in Florida, I think back in September or October, where a firm who had people with 20+ years of experience indicated that they were specialists and the Florida Bar challenged their right to call themselves specialists without taking the Bar exam to designate specialists.  The firm sued and the court agreed that they had every right to call themselves specialists if they had that much experience.  After that, the bar association backed off and decided not to go after anybody else who does that.  Of course, there’s no standard as to who can call themselves an expert or specialist – is it 10 years or 15 years?  Who knows?  But, it seems to me that’s a door opener that benefits organizations like ACEDS that provide training.

So, in that regard, maybe this year things will open up.  But, it’s like pulling teeth.  Actually, it’s worse than that, it’s like pulling teeth without Novocain.  It’s frustrating.  I remember going around with Browning Marean to law schools 14 or 15 years ago and trying to get education programs going back then, so people have been trying for a long time.  It’s just frustrating.  I understand that people don’t go to law school to learn technology and their wish is fulfilled.  Unless they seek out one of these specialty courses, they don’t get it.

Part of the issue is that we’re faced with bureaucracy – we’ve got state bar associations and the ABA.  You’d think that maybe somebody like the ABA would take the lead on it, but that hasn’t happened.  Without naming names, there are a couple of bar associations where just getting a CLE course approved is like joining the Navy – there are ten page forms to fill out and certify.  Thankfully, not all states are like that.  I do a CLE 3 or 4 times a year for the Louisiana Bar on the basics of technology where we don’t even focus so much on eDiscovery as opposed to just helping them understand how a computer works – teaching them things like what a “bit” is, what a “byte” is, what’s a “temp file”, what is “slack space”, how data is actually stored on the computer.  We’re not trying to give them a PhD in Computer Science in this course, we’re just trying to teach them some basic concepts.  If you want to take on a medical malpractice case, you need to know the difference between an aorta and a fibula.  That’s the level we’re trying to teach – basic stuff.

In the meantime, we’re still encountering people who don’t understand things like why metadata is important and still get in fights over productions about that where they propose to give us just TIFF and text files and we say “no, you’re not”.  There was an appellate decision recently in Texas where Craig was the expert and the producing party claimed it was actually more expensive to produce native files.  What is your native file system, stone tablets?  How can you say that with a straight face?  Of course, if they already have the documents in a Relativity database, maybe they think it’s less expensive than producing native files, because they can simply perform an export.  But, the native files must still be there in the database, the client probably provided them to you and they can be produced.

Advanced Discovery just acquired Millnet, a London-based company.  We’ve been having meetings, trying to do the “vulcan mind-meld” and we were talking about this and they were laughing and I didn’t understand why.  They said that over in the UK, everybody produces native files.  I said “what about Bates numbers” and they started laughing again.  They said that nobody cares about Bates numbers over there.  Of course, it’s a different system over there, less adversarial, and loser pays, but it was like “wow, somebody understands the best way to do this”.  They were aghast to hear that it’s commonplace here.

What are you working on that you’d like our readers to know about?

It’s been literally a year now (since last year’s show) since I’ve been with Advanced Discovery.  I’m doing a lot of CLE, a lot of “lunch and learns” and a lot of client consulting – all about these various issues that you and I have been discussing.  The company has grown a great deal, so I’m jumping around like a “cat on a hot tin roof” (to use a New Orleans analogy) as we have offices from DC to all over California, just purchased a small service bureau in Pittsburgh and have a couple more on the horizon.  As one of my colleague said this morning, “Tom is in New York preaching the gospel of ESI”.  I also write a weekly blog for Advanced Discovery and put it up on my personal blog as well.  So, I’ve been doing a lot of education work.

Also, about once a month or so, Craig Ball and I amuse each other on the eDiscovery Channel on Youtube.  Craig has stepped in where Browning was.  We think we’re the funniest guys in eDiscovery.  Occasionally, we’ll get somebody else to sit down with us as well.

I miss Browning, especially when I come to a show like this.  He was just a genuinely nice guy.  He and I were opposites in so many ways.  Though we were both from the Boston area, he was what they call a “Boston Brahmin”, a “yankee”, a protestant and a partner at a huge firm. I’m South Shore, Irish and a blue-collar worker.  He was hard-core Republican and I’m a hard-core Democrat.  Despite all that, we got along famously.  I think much of that related to our sense of humor, but he also reminded me of the lawyers I knew when I was growing up that made me want to be a lawyer, where the profession was much more collegial.  He became Of Counsel for the firm and I asked him “don’t you miss having a clientele?” and he said “I miss going to court, I miss trials”.  But, he added, “the last ten years, the majority of my clients only wanted a ‘hammer’ – they wanted me to beat the crap out of the opposition, they weren’t concerned about getting a solution.”  Despite that, Browning never lost that collegiality.  I’ve never known anyone who had a bad word to say about him – he was universally liked and respected, even when he didn’t agree with you, he could disagree with you in a very respectful way.

Thanks, Tom, for participating in the interview!

And to the readers, as always, 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.

Jason R. Baron of Drinker Biddle & Reath LLP: eDiscovery Trends

This is the third of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and also a member of the leadership team for the Information Governance Initiative.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

What are your general observations about LTNY this year and how it fits into emerging trends?

It’s clear to me that there has been a maturing of the market for the kind of analytics software that some of us have been evangelizing about in the eDiscovery space for some time.  This year, it was noticeable that there weren’t 27 sessions devoted to technology assisted review in e-discovery cases!  However, in place of that narrower focus, there were any number of sessions on analytics and applying analytics to a broader segment of the legal space, which I applaud.

Also, I think there was an acknowledgement that, from the perspective of Information Governance, there is an analytics play to be had.  With bigger and bigger data sets, companies need to face the fact that both employees and customers generate huge amounts of data and they need to make sure that they understand and have visibility into that data.  So, the tools that evolved for purposes of eDiscovery are perfectly suitable – with tweaks – to cover a variety of legal purposes, and we’re seeing that play out at LegalTech.

At LTNY, you were one of the panelists on the Thursday keynote addressing issues such as private servers, bring-your-own-device (BYOD) and other organization challenges for managing data by individual employees.  What do organizations, such as government entities and corporations, need to do manage personal data more effectively?

Well, I’m glad you asked me that.  The session that I had the privilege of speaking on (with Judge Scheindlin and Edward McMahon as fellow panelists and Professor Dan Capra moderating) was all about what I call “shadow IT,” which is a phenomenon that is closely related to but distinct from BYOD.   In the past decade or so, we all have been empowered to simply go to the Internet to use whatever variety of cool apps that are out there, like Google Docs and Dropbox, to facilitate communications and doing work and “parking” documents.  We go out and communicate routinely on Gmail and other forms of commercial services.  All of these activities, to the extent that they involve communications that relate to business or the work of governments, are what I consider to be “shadow IT” in nature because they are not controlled by a traditional IT department in a corporation or agency.

So, maybe a decade ago, if there was a Rule 34 request, you were pretty much assured that all of the relevant material could be gathered by a state-of-the-art IT custodian performing a collection effort against individual accounts on an official system.  That’s no longer absolutely the case.  Today, you need to ask follow-up questions as to where individuals are parking their documents and where are they communicating outside the “official” channel for doing so.

In government, there are very well known, long standing rules for what constitutes a Federal record, including email.  There is an expectation on the part of the public – and there should be an expectation on the part of government officials — that Freedom of Information Act (FOIA) requests for records created about government business will be made available. (Indeed, at least some of those records will be preserved as permanent records in the National Archives of the United States.)  So, it is incumbent to make sure that one follows the rules — and the rules for government are different than what they are for the private sector.  A clear statute in place since 2014 says that anytime that you’re communicating about government business on a private commercial network, you need to either “cc” or forward that message within twenty days to an official record keeping system.  This isn’t the place to get into what regulations were prior to 2014 and how that plays out in terms of the political realm, but our panel did cover the general topic of the responsibility of the officials to make sure that their communications about government business are, in fact, captured in an official system somewhere.

Also, for some time, I have been a very big advocate of email archiving and capture technologies generally, so that we don’t lose history and don’t lose a broad swath of government records that are otherwise not going to be captured if you simply leave it to individuals themselves to take steps to preserve. 

The problem of shadow IT is one that is equally of concern in the private sector because high level corporate officials sometimes, in various verticals, are governed by strict email archiving requirements (e.g.,SEC and FINRA rules).  So senior people need to also be aware that, if they’re communicating about cover topics outside of the usual channels, they need to take additional steps to make sure that those are properly archived.

These issues are only emerging now and it’s probably only going to get “worse”!  In my view, the issues are going to be more complex in the future with more apps, more platforms, more devices and more opportunities for “end runs” around the traditional IT department.

In the case Nuvasive v. Madsen Medical, the Court recently vacated an adverse inference instruction sanction previously applied against the plaintiff because of the amendment to Rule 37(e).  Do you see that as a trend for other cases and do you expect that other parties that have been sanctioned will file motions to have their sanctions re-considered?

There are some subtle provisions as to when courts will or will not apply the new rules to existing cases.  But, beyond that, I have been watching with great interest the number of decisions that have been handed down that are applying the new provisions of Rule 37, and doing so in a way that suggests that courts will continue to be quite active in monitoring what is happening in discovery — imposing severe sanctions where appropriate and, when there isn’t the requisite level of intent, applying some sort of curative measures otherwise.  So, I think there may have been a greater level of judicial activity than was anticipated in the immediate period since December 1 when the rules changed.  It seems clear to most observers in the space that we’re going to have dozens and dozens of decisions in 2016 that apply the new rules, and we will get to see the patterns emerging pretty quickly.

What are you working on that you’d like our readers to know about?

I think the exciting work of the Information Governance Initiative (IGI) continues to push smart conversations in the space about how corporations can get a handle on their data.  We had a very successful IGI summit, known as the Chief Information Governance Officers (CIGO) summit, in Chicago last year.  We’re going to have the second CIGO summit in May of this year again in Chicago and we’re looking forward to that.  We also have any number of activities that we’re planning to do in terms of retreats, dinners and boot camps, etc. I think IG is still an emerging discipline that should be of great interest to many corporate actors who don’t have a good handle on their existing workflows, policies and programs about data – whether it’s data breach or data reduction or data archiving or data analytics.  I feel very privileged to be part of a group of individuals at the IGI that are really doing some serious thinking about these types of topics.

I must say I was surprised by Monica Bay at LegalTech, who pulled me in at the last moment to be a judge at the second “Shark Tank” session held there —  where I felt a little like being on “America’s Got Talent” as one of three judges in the room looking at the individual entrepreneurs who were giving presentations.  But, as the session progressed (and as recorded by David Horrigan, who was tweeting the session in live stream fashion) it seemed very clear to me that maybe it’s time for me to retire!  I say so because of the profusion of disruptive technologies in the space, whether it has to do with smart contracts or dialing up lawyers over the web, it all heavily suggests that all of our current business models are going to be disrupted in due course and maybe very soon!  There are simply a lot of exciting technologies in the space for which the CodeX people are fostering a platform.  In the end I confess to being quite happy that Monica pulled me in, and I would urge your readership to pay attention to what CodeX is doing.  I believe there is a conference coming up (CodeX FutureLaw 2016) on May 20, which is focusing on how technology is changing the landscape of the legal profession and the impact of those changes.

Thanks, Jason, for participating in the interview!

And to the readers, as always, 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: eDiscovery Case Law

In Stinson v. City of New York, 10 Civ. 4228 (RWS) (S.D.N.Y. Jan. 2, 2016), New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants.

Case Background

In this civil rights class action against the City of New York, it was determined that the City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case and the litigation hold was not effectively communicated, and none of the officers who were named in the City’s initial disclosures acknowledged receiving it.

At the time of the litigation hold, the document destruction processes at the NYPD were governed by Operations Order 44, which specified the length of time the Department would be required to retain various categories of documents.  Order 44 authorized the destruction of most bureau chief memos after three years, police officers’ monthly performance reports after four years, and criminal court summonses after four years.  With regard to emails, the City’s 30(b)(6) witness stated that “although the NYPD did not have a specific policy with regards to the destruction of email communications, it did impose a hard size limit on officers’ inboxes, and that when officers hit that limit, ‘they delete.’”  The City also did not dispute that it had not made any effort to preserve or produce text messages between NYPD officers.

With regard to the defendants’ production, the Court noted that they produced fewer than 25 emails from key players, with no emails produced from the former Commissioner, the former Chief of the department, and three other key custodians. The defendants explained the lack of email production by contending that the “Police Department on the whole did not operate via email”, but that contention was countered by email communications with the city that the plaintiffs acquired from third parties.

Judge’s Ruling

Citing Chin v. Port Authority of New York and New Jersey, Judge Sweet stated that:

“In order to merit an adverse inference, the party seeking sanctions must establish 1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed, 2) that the records were destroyed with a culpable state of mind, and 3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”

  • With regard to the defendants’ obligation, Judge Sweet rejected the defendants’ argument that the plaintiffs’ preservation requests were overbroad, stating “Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.”
  • With regard to the defendants’ culpable state of mind, Judge Sweet stated that “the City’s conduct shows a broad failure to take its preservation obligations seriously rather than any deliberate attempt to lie or mislead”, but noted that the “City’s conduct does, however, support a finding of gross negligence”.
  • With regard to the relevance of the destroyed documents, Judge Sweet determined that the “evidence adduced thus far indicates that at least some of the destroyed documents will be relevant to the Plaintiffs’ claims”, though he did note that the showing of relevance by the plaintiffs was “relatively limited”.

As sanctions for the defendants’ spoliation, the plaintiffs requested a set of sixteen adverse inferences touching on almost every aspect of their case, but Judge Sweet opted for a lesser level of sanctions, stating:

“Given the City’s lack of bad faith in its spoliation of evidence and the relatively limited showing of relevance made by the Plaintiffs, a permissive, rather than a mandatory adverse inference is warranted…A permissive inference will ensure that the City faces consequences for its failure to take its preservation obligations seriously, but will not result in an unwarranted windfall for the Plaintiffs. The jury will be instructed that the absence of documentary evidence does not in this case establish the absence of a summons quota policy.”

So, what do you think?  Was that a sufficient sanction for the defendants’ “gross negligence” in failing to issue a litigation hold?  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.

George Socha of Socha Consulting LLC: eDiscovery Trends

This is the second of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What are your general observations about LTNY this year and about emerging eDiscovery trends overall?

{Interviewed the first morning of LTNY, so the focus of the question to George was more about his expectations for the show and also about general industry trends}.

This is the largest legal technology trade show of the year so it’s going to be a “who’s who” of people in the hallways.  It will be an opportunity for service and software providers to roll out their new “fill in the blank”.  It will be great to catch up with folks that I only get to see once a year as well as folks that I get to see a lot more than that.  And, yet again, I don’t expect any dramatic revelations on the exhibit floor or in any of the sessions.

We continue to hear two recurring themes:  the market is consolidating and eDiscovery has become a commodity. I still don’t see either of these actually happening.  Consolidation would be if some providers were acquiring others and no new providers were coming along to fill in the gaps, or if a small number of providers was taking over a huge share of the market.  Instead, as quickly as one provider acquires another, two, three or more new providers pop up and often with new ideas they hope will gain traction.  In terms of dominating the market, there has been some consolidation on the software side but as to services provider the market continues to look more like law firms than like accounting firms.

In terms of commoditization, I think we still have a market where people want to pay “K-mart, off the rack” prices for “Bespoke” suits.  That reflects continued intense downward pressure on prices.  It does not suggest, however, that the e-discovery market has begun to approximate, for example, the markets for corn, oil or generic goods.  E-discovery services and software are not yet fungible – with little meaningful difference between them other than price.  I have heard no discussion of “e-discovery futures.”  And providers and consumers alike still seem to think that brand, levels of project management, and variations in depth and breadth of offerings matter considerably.

Given that analytics happens at various places throughout the eDiscovery life cycle, is it time to consider tweaking the EDRM model to reflect a broader scope of analysis?

The question always is, “what should the tweak look like?”  The questions I ask in return are “What’s there that should not be there?”, “What should be there that is not?” and “What should be re-arranged?”  One common category of suggested tweaks are the ones meant to change the EDRM model to look more like one particular person’s or organization’s workflow.  This keeps coming up even though the model was never meant to be a workflow – it is a conceptual framework to help break one unitary item into a set of more discrete components that you can examine in comparison to each other and also in isolation.

A second set of tweaks focuses on adding more boxes to the diagram.  Why, we get asked, don’t we have a box called Early Case Assessment, and another called Legal Hold, and another called Predictive Coding, and so on. With activities like analytics, you can take the entire EDRM diagram and drop it inside any one of those boxes or in that circle.  Those concepts already are present in the current diagram.  If, for example, you took the entire EDRM diagram and dropped it inside the Identification box, you could call that Early Case Assessment or Early Data Assessment.  There was discussion early on about whether there should be a box for “Search”, but Search is really an Analysis function – there’s a home for it there.

A third set of suggested tweaks centers on eliminating elements from the diagram.  Some have proposed that we combine the processing and review boxes into a single box – but the rationale they offer is that because they offer both those capabilities there no longer is a need to show separate boxes for the separate functions.

What are you working on that you’d like our readers to know about?

First, we would like to invite current and prospective members to join us on April 18 for our Spring meeting which will be at the ACEDS conference this year.  The conference is from April 18 through April 20, with the educational portion of the conference slated for the 19th and 20th.

For several years at the conference, ACEDS has given out awards honoring eDiscovery professionals.  To congratulate this year’s winners we will be giving them one-year individual EDRM memberships.

On the project side, one of the undertakings we are working on is “SEAT-1,” a follow up to our eMSAT-1 (eDiscovery Maturity Self-Assessment Test).  SEAT-1 will be a self-assessment test specifically for litigation groups and law firms.  The test is intended to enable them to better assess where they are at, how they are doing and where they want to be.  We are also working on different ways to deliver our budget calculators.  It’s too early to provide details on that, but we’re hoping to be able to provide more information soon.

Finally, in the past year we have begun to develop and deliver member-only resources. We published a data set for members only and we put a new section of EDRM site with information about the changes to the Federal rules, including a comprehensive collection of information about the changes to the rules.  This year, we will be working on additional resources to be available to just our members.

Thanks, George, for participating in the interview!

And to the readers, as always, 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. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOJ and FBI Respond to Apple’s Letter Regarding Breaking Encryption of San Bernardino Shooter’s iPhone: eDiscovery Trends

It probably comes as no surprise that the government didn’t take Apple’s opposition to the Federal order to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters lying down.

According to the ABA Journal, on Friday, federal prosecutors filed a motion to compel Apple to unlock the killer’s iPhone.  In its motion, the Department of Justice said that Apple is “not above the law”.  “Apple’s current refusal to comply with the court order’s order, despite the technical feasibility of doing so, instead appears to be based on its concern for its business model and public brand marketing strategy,” the DOJ wrote in its filing, stating that Apple shouldn’t be allowed to “design and market its products to allow technology, rather than the law, to control access to data”.

Then, on Sunday, the FBI also responded to Apple’s opposition.  According to NBC News, FBI Director James Comey said forcing Apple to help unlock the iPhone of one of the San Bernardino shooters is no big deal.  “We don’t want to break anyone’s encryption or set a master key loose on the land,” Comey said in a statement Sunday night, insisting that vital decisions involving safety from terrorists shouldn’t be left in the hands of “corporations that sell stuff for a living.”

In the meantime, everyone from Google Chief Executive Sundar Pichai to Donald Trump is weighing in on whether Apple should help unlock the iPhone for the investigation.  And, Apple is claiming that had the passcode to Syed Farook’s iPhone not been reset hours after the shooting (at the consent of the FBI), the company would have been able to initiate a backup of the phone’s data to its associated iCloud account in order to retrieve its contents.  And, PCWorld is reporting that if San Bernardino County had been using a Mobile Device Management (MDM) service on its employees’ devices, they “would have been able to clear the device’s passcode in a matter of seconds” and the whole issue would have been moot.

So, what do you think?  Do any of the recent developments and statements change your opinion about whether Apple should or should not help the FBI break into the iPhone?  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.

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Brad Jenkins of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad also has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!  :o)

What are your general observations about LTNY this year and how it compared to other LTNY shows that you have attended?

Again this year, LTNY seemed reasonably well attended.  Thankfully, we didn’t have the weather and travel issues that we had the past few years, so that probably helped boost attendance.  And, the Hilton Lobby Lounge was back this year, so that provided an additional location to meet, though most of our meetings were in our suite.  Though I was really busy and didn’t get much chance to attend sessions, I understand that they were very good as always.  I did notice a drop in the number of exhibitors again this year and the exhibit hall did seem to be less crowded.  One colleague of mine who exhibited indicated that the number of leads he received at the show dropped about 30 percent from last year, so that’s consistent with my own observations and those of my colleagues.

For me, LTNY has become as much about the meetings with colleagues and business partners as it is about the show itself.  CloudNine had meetings practically booked throughout the show, with various people including industry analysts, partners and potential partners and clients and prospects.  Because it is the biggest show of the year, most people in the industry attend, so it’s an ideal opportunity to meet face to face and move business relationships along further.  Sometimes, there is just no substitute for in-person meetings to further business relationships and to communicate your message to other business colleagues.

What about general industry trends?  Are there any notable trends that you’ve observed?

Certainly one trend that I have noticed, as others have certainly noticed, is the accelerated consolidation within our industry within the provider community and the growth of investment of outside venture capital firms in our industry.  Just in the past couple of months, we have seen Huron Legal acquired by Consilio (which received a major investment from Shamrock Capital Advisors a few months before that), Millnet acquired by Advanced Discovery, Orange Legal acquired by Xact Data Discovery and Kiersted Systems acquired by OmniVere.  Rob Robinson does a terrific job of tracking mergers, acquisitions and investments in our industry and, according to his list, there have been eleven significant acquisitions and investments in just the past three months!

Another noticeable trend in the industry is the clear trend toward automation within eDiscovery.  You wrote about it earlier this year and, like you, I believe that the age of automation is here.  Some have dismissed the term “automation” as a marketing term, but I can’t think of a better term to describe the transformation of tasks that used to require a high degree of manual intervention and supervision to a point where little, if any, human involvement is necessary.  We’ve seen it for years through automation of review with technology assisted review techniques such as clustering and predictive coding and we have begun to see use of some artificial intelligence techniques on the information governance side.  Now, we are seeing automation of the processing of data to get it into a review platform and cloud-based providers (including CloudNine) automating that process.

Having been in the legal technology industry for many years, I have really seen an evolution of technology offerings in the marketplace.  At the beginning, I saw applications that were originally developed for other purposes being adapted for eDiscovery and those solutions were incomplete.  As the market developed, there started to be applications that were specifically designed for eDiscovery and those solutions were an improvement, but they were designed for isolated processes, such as collection or processing or review, with no automation of tasks.  The next generation of solutions were designed for eDiscovery and designed for task integration, but still adapted for task automation – some of those are the most popular solutions in the market today.  The new solutions – the “fourth generation” technology offerings are not only designed for eDiscovery and designed for task integration, they’re designed for task automation as well.

Many people say that if you want to tell where an industry is heading, follow the money.  In the past several months, you’ve seen providers like Logikcull and Everlaw that emphasize automation receive significant capital investments and, just before LTNY, you saw Thomson Reuters announce a new platform where automated processing is a key component.  It’s clear that big money is being invested in the growing automation sector of the industry.  You can get on the bus, or you can get run over by the bus.  As a provider that has been committed to simplified eDiscovery automation for several years now, CloudNine is on the bus and we feel that we have an excellent “seat” on that bus and are well positioned to help usher eDiscovery into the automation age.

What are you working on that you’d like our readers to know about?

Well, since I was just talking about fourth generation technology solutions, it seems appropriate to discuss how CloudNine has gotten to the point where we are in that evolution.  About 3 1/2 years ago at CloudNine, we looked at our legacy platform that had been in place since the early 2000s and was on version 14.  Our clients were happy with the platform overall, but we realized that if we were going to stay competitive as the market evolved, our legacy platform wasn’t going to be able to support those future needs.  So, we made the decision to almost completely start from scratch and re-develop our platform from the ground up, using the latest technology with an eye toward a truly simplified eDiscovery automation approach.  The platform that you see today via the user interface is just the tip of the iceberg of the overall solution – behind it is a series of workflows to accomplish various tasks.  For example, there are 34 distinct workflows (our CTO and co-founder Bill David calls them “cascading buckets“ that enable the workflows to scale) just in our Discovery Client application that enables clients to upload and process data into our CloudNine review platform.  This modularized approach of putting together re-usable workflows enables us to both scale and adapt as needed to meet changing client needs and positions us well for the future.

We feel that CloudNine is the leader in simplifying eDiscovery automation.  We do this through what we call the 4 S’s: Speed, Simplicity, Security and Services.  Clients, even brand new clients, can be up and running in five minutes (Speed) through their ability to sign up for their own account and upload and process their own data.  We recently had a brand new client who signed up for an account, uploaded and processed 27 GB of Outlook PST files (which amounted to over 300,000 emails and attachments) and culled out nearly two-thirds of the collection via HASH deduplication and irrelevant domain culling – all within 24 hours without ever having to speak to a CloudNine representative!  The ease of use (Simplicity) of the platform through the wizard-based client application for uploading data and a browser independent review module enables our clients to get up to speed with no more than an hour (or less) of training required.

Our approach to Security is unique as well – we operate within a protected cloud, not a public cloud, where the clients know that their data will be located on our servers in a Tier IV data center that is located 5 minutes from our offices.  This data center hosts data for nine of the top Fortune 20 corporations and was instrumental in us being selected over a year ago by a Fortune 150 corporation to host their data.  Finally, what makes us unique are the Services that we provide to support the software and automation – in addition to the software that we provide to help automate the eDiscovery process, we also provide managed services ranging from forensic collection to data conversion to technical advice and eDiscovery best practices and managed document review.  This enables our clients to rely on one provider for all of their services needs – as opposed to software-only providers that would have to outsource those services to a third party.

We believe that the combination of Speed, Simplicity, Security and Services enables CloudNine to provide the simplified eDiscovery automation approach that our clients want.  It’s an exciting time in our industry and CloudNine is excited to be forefront in its continued evolution, as we have been for the last 13 years!

Thanks, Brad, for participating in the interview!

And to the readers, as always, 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.

What Are the Biggest Challenges for Law Departments in 2016? This Report Has Some Answers: eDiscovery Trends

According to Consilio’s Law Department Benchmarking Report, a survey encompassing data from 119 company’s law departments ranging in revenue from 2 to 10 billion dollars which was released on Tuesday, over 50 percent of law departments find that increasing or changing regulatory requirements pose the biggest challenge in 2016.  That, and other, findings can be found in the report, which is now available.

The sixth annual survey aims to help general counsel (GCs) better understand the effectiveness of their operating processes and was conducted in partnership with The General Counsel Forum.  We covered last year’s survey here when it was issued by Huron Legal (which, as you probably know by now, was acquired by Consilio a couple of months ago).

As noted in Consilio’s press release announcement of the report, while 58 percent of law departments have an internal data-privacy program, just 21 percent take the same precautions with information shared externally when managing vendors. The lack of risk-assessment programs makes sensitive data vulnerable to hacking and other cyber threats.

“As security concerns become more commonplace, law departments are working to ensure proper data security measures are implemented to protect sensitive company information both internally and externally,” said Bret Baccus, managing director, Consilio. “We’re seeing more companies use objective, metrics-based measurements to assess outside counsel and other providers’ security capabilities. Those metrics are being used to select third-party vendors based on the risk level in sharing confidential information and data.”

Other highlights of the report include:

  • Spending continued to increase, although at a lower rate than the prior year – at 7 percent from 2014 to 2015 as compared to an increase of 2.2 percent from 2013 to 2014.
  • Law departments are becoming more sophisticated in spend management, with 67 percent of respondents using matter-level budgets and 74 percent having, or planning to implement, structured programs for conducting rate negotiations.
  • The top department initiative planned over the next three years was formalization of outside counsel performance review process (with 46 percent of respondents either already implementing or planning to implement within the next 2-3 years), followed by development of an enterprise information governance program (38 percent) and tracking of department metrics and performance indicators (36 percent).
  • As law departments look to effectively manage costs and workloads, many are more often outsourcing discovery work to non-law firm vendors. Over 75 percent of companies with over $10 billion in revenue reported using alternative service providers for document review and data processing/hosting, with 44 percent of companies between $2 and $10 billion reporting the same.
  • Discovery management programs are fairly common at the largest companies, but relatively few companies with revenue under $10 billion have them, even though for companies with any volume of litigation those programs can reduce risk by improving consistency and defensibility and save money by limiting the need to “reinvent the wheel” with each new case.

The highlights of the Law Department Benchmarking Report are available for download here.  For more information about the complete report, please contact Bret Baccus (bbaccus@consilio.com or 713‑222‑5910) or Jaime Woltjen (jwoltjen@consilio.com or 312-880-3737).

So, what do you think?  Are you surprised by any of these trends?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

P.S. — Happy Birthday to my wife, Paige!  I love you honey!

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.

Apple in Court Battle Over Access to San Bernardino Shooter’s iPhone: eDiscovery Trends

In a case that pits national security vs. privacy concerns, a federal judge on Tuesday 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 vowed to fight, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.

According to NBC News, in a 40-page filing, the U.S. Attorney’s Office in Los Angeles argued that it needed Apple to help it find the password and access “relevant, critical … data” on the locked cellphone of Syed Farook, who with his wife Tashfeen Malik murdered 14 people in San Bernardino, California on December 2.

The judge ruled that Apple had to provide “reasonable technical assistance” (that it had previously “declined to provide voluntarily”) to the government in recovering data from Farook’s iPhone 5c, including bypassing the auto-erase function and allowing investigators to submit an unlimited number of passwords in their attempts to unlock the phone. Apple was given five days to respond to the court if it believed that compliance would be “unreasonably burdensome.”

Apple CEO Tim Cook published an open letter late Tuesday, pledging to fight a judge’s ruling that it should give FBI investigators access to encrypted data on the device.

“We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone”, Cook wrote.  “The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”

Stating that creation of a tool to unlock the iPhone would be “the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes”, Cook wrote that “[n]o reasonable person would find that acceptable.”  “Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.”

Yesterday, the Today show covered the dispute as its top story – even before covering the election and Donald Trump (imagine that!).  A link to the video and more on the story is available on the NBC News site here.  The experts interviewed on the show expected to court battle to continue for some time.

So, what do you think?  Does Apple have legitimate concerns or is it their duty to assist the government and create a tool to unlock the iPhone?  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.